Category Archives: Retroactivity

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000388

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.

First Holding:

When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

AB 333’s changes to section 186.22 apply retroactively under Estrada.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

Third Holding:

AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. These changes also apply to the crime of active participation in a criminal street gang.

Authority:

PEN 186.22

People v. E.H. (2022) 75 Cal.App.5th 467, 479

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Rojas (2023) 15 Cal.5th 561, 565

Amelioration, Retroactivity, Sentencing

Case: 000382

Posted on by Gary McCurdy

Error and/or relief

The court accepted the defendant’s admission to a single prior serious felony conviction and a prior strike conviction.These admissions were based on the defendant’s 2010 conviction for assault with a deadly weapon with a gang enhancement. The court sentenced the defendant as a second striker based on his admission that his 2010 conviction of aggravated assault with a gang enhancement constituted a strike. In light of AB 333’s modifications to the elements of PC 186.22 regarding gang criminal activity, the People concede, and we agree, that the defendant’s two-strike sentence must be vacated and the matter remanded for a possible retrial of his prior conviction allegations.

Holding:

AB 333 (2021–2022 Reg. Sess.) increased the evidentiary requirements for proving gang offenses and enhancements by amending section 186.22. The defendant’s prior convictions were based on his admission to the elements of section 186.22 as it read at the time of his plea. At that time, the prosecution was not required to prove—and the defendant did not admit—the elements newly required under AB 333. These heightened requirements apply when assessing whether pre–AB 333 convictions may be used for certain sentencing purposes.

Because the defendant’s prior convictions predated AB 333, the record does not establish they satisfy the amended statute’s more stringent requirements, and because this case is not yet final, the parties agree that the trial court’s true findings on the prior strike and serious felony enhancement must be vacated and the matter remanded for resentencing. If the prosecution elects to retry those allegations, the trial court must adjudicate them applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 608

Amelioration, Fines and fees, Retroactivity, Sentencing

Case: 000376

Posted on by Gary McCurdy

Error and/or relief

At the 2024 resentencing hearing under section 1172.5 pertaining to the defendant’s 2007 conviction, the court imposed a $5000 restitution fine, reducing the $10,000 restitution fine imposed in 2007. Since 10 years had lapsed since the original imposition of a restitution fine, it must be vacated.

First Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Second Holding:

Section 1465.9(d), applies retroactively to the defendant’s reopened sentence. The restitution fine was first imposed nearly 20 years ago and is now unenforceable and uncollectible under section 1465.9(d).

Authority:

In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

People v. Jennings (2019) 42 Cal.App.5th 664, 681 [SB 136’s changes to section 667.5, former subdivision (b), applied retroactively to sentences that were not final at the time the law became effective]

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000370

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the defendant’s second petition for recall of sentence under section 1172.6 as successive, because there were changes in the statutory law between the first and the second. Remanded for the court’s consideration of the second petition.

Holding:

The defendant maintains that changes in statutory and decisional law after the denial of his first resentencing petition dictate that it not be accorded preclusive effect. On the merits, he argues that the jury’s verdict does not conclusively establish he is ineligible for relief as a matter of law. Asserting that his conviction for first degree murder may have been based on the felony murder rule, he contends he has made a prima facie case for relief and is entitled to an evidentiary hearing. The Attorney General appropriately concedes error.

Because there were several applicable changes to the law since the denial of appellant’s first petition, the second petition was not barred under principles of collateral estoppel. These include amendments to the statute limiting reliance on a prior appellate opinion to the procedural history of the case and providing that substantial evidence to support a murder conviction is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Further, caselaw has clarified that at the prima facie stage, a trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

PC 1172.6(d)(3)

People v. Jimenez (2024) 103 Cal.App.5th 994, 1005

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Lewis (2021) 11 Cal.5th 952, 972

Amelioration, Retroactivity, Sentencing

Case: 000360

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

Section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. Because section 1172.75 and section 1170.126, thus interpreted, operate harmoniously, the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850

Second Holding:

It is unclear from the record as originally filed how the section 1172.75 proceedings had been initiated. Section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely by a defendant)

Third Holding:

Construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing maintains the integrity of both statutes, such that the two may stand together. The legislative history suggests the voters understood that where a court conducting a resentencing inquiry for Third Strike defendants serving an indeterminate term found relief would pose an unreasonable risk of danger to public safety, the defendant would not be entitled to resentencing. Interpreting section 1172.75 as incorporating the discretionary public safety determination of section 1170.126 would honor this concern and thus eliminate constitutional doubt.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865-866

Fourth Holding:

In exercising this discretion, the voters established that the resentencing court may consider: (1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 866, fn. 9

Fifth Holding:

The resentencing court is not bound by the prior dangerousness determination associated with the defendant’s section 1170.126 petition. Rather, section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety’ as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

People v. Flores (2022) 73 Cal.App.5th 1032, 1039

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385

Fines and fees, Juveniles, Retroactivity, Sentencing

Case: 000354

Posted on by Gary McCurdy

Error and/or relief

Because of legislation enacted since the disposition hearing, the $300 restitution fine is ordered stricken in this Welfare and Institutions Code section 602 juvenile proceeding. The statutory change regarding joint and severally liability, however, does not apply retroactively.

First Holding:

While this appeal was pending, the Legislature amended Welfare and Institutions Code section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now states that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602. Because the judgment is not final, the appellant is entitled to the ameliorative benefits of this amendment.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

The modification of section 730.6(b)(3), eliminating joint and several liability for juvenile offenders for direct restitution, is not punitive, but civil. Because it is not ameliorative of punishment, there is no presumption that it applies retroactively to nonfinal judgments. Enacted after the order imposing direct restitution jointly and severally with other parties, it has prospective effect only, and does not apply retroactively to this minor’s case.

Authority:

WIC 730.6(b)(3)

In re J.L. (2025) 117 Cal.App.5th 388

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Amelioration, Elements of crime, Jury instructions, Retroactivity, Vicarious liability

Case: 000329

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted, because the defendant was convicted of first degree murder as an aider and abettor under the natural and probable consequences doctrine found improper under Chiu, decided shortly after his conviction was final. The record does not establish beyond a reasonable doubt he was convicted of first degree murder under another, valid theory of liability. We grant the petition and remand to the trial court so the People may decide whether to retry petitioner on the first degree murder charge or accept a reduction of the conviction to second degree murder.

First Holding:

An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with reasonable concepts of culpability.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165

Second Holding:

This holding is retroactive to convictions already final at the time Chiu was decided.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1222

Third Holding:

When a trial court instructs a jury on two theories of guilt, one of which was legally correct [e.g., direct aiding and abetting] and one legally incorrect [i.e., natural and probable consequences], reversal is required, unless the court concludes beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165, 167

In re Lopez (2023) 14 Cal.5th 562, 568 [a reviewing court may hold the error harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability]

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000323

Posted on by Gary McCurdy

Error and/or relief

Remanded for retrial of the strike prior allegation. The amended version of section 186.22 must be applied in determining whether prior convictions with a gang enhancement qualify as serious felonies under the Three Strikes law.

First Holding:

In 2021, the Legislature passed AB 333, which amended section 186.22. This legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Second Holding:

In Fletcher, relying in part on the present conditional phrasing of section 1192.7(c)(28)—which applies to any felony offense that would also constitute a felony violation of section 186.22–the Supreme Court held that current law (i.e., AB 333) applies to the determination of whether a prior conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28). The Supreme Court also concluded that there was insufficient evidence in that case that the defendants’ convictions were obtained under AB 333’s more stringent requirements because the only evidence presented were the abstracts of judgment, which merely showed the offenses and gang enhancements. Accordingly, the Supreme Court vacated the strike prior findings and directed the Court of Appeal to remand with instructions to retry the gang allegations under AB 333’s amendments to section 186.22.

Authority:

PEN 1192.7(c)(28)

People v. Fletcher (2025) 18 Cal.5th 576, 603-604

Gary Musings, Retroactivity

Gary Musings on Pedro T. and Estrada (no case 000317)

Posted on by Gary McCurdy

Gary Musings,  on Pedro T., because there is no summary for Case 000317

I (Gary) decided not to include a summary on this what I have coded as Case 000317, because it contained very few new nuggets of legal principles, was very fact specific, and the facts were very convoluted. But of SOME possible interest, you may wish to review In re Pedro T. (1994) 8 Cal.4th 1041, which was mentioned in the case I’m not posting.

In essence, the question in Pedro T. was what happens when a defendant commits a new offense (in Pedro’s case, vehicle theft under section 10851) during a time when the penalty had been temporarily increased by the Legislature, with a sunset provision that would revert the available punishment to its previous status in the event the Legislature chose not to extend or remove the sunset provision.

In Pedro’s case, Vehicle Code section 10851 had been amended (before he committed his crime) to increase the range of punishment from a 16-month, 2-year, 3-year triad to a 2-year, 3-year, 4-year triad. He committed his crime under the new triad. During the course of the juvenile court’s efforts to rehabilitate the minor, he reached the limits of the court’s patience and was committed to the California Youth Authority for a term that was based on the increased tier.

While Pedro was serving his time, the sun set and the penalty range reverted to the former lower triad. Because his judgment was not final (he was still under the jurisdiction of the juvenile court, which could modify his disposition at any time), he sought to have his term lowered in keeping with the newly restored lower range, relying on In re Estrada (1965) 63 Cal.2d 740.

You may recall that Estrada firmly established the presumption that, in the absence of clear indication that the Legislature intended otherwise, ameliorative legislation is retroactive to any person whose judgment was not final when it took effect.

Pedro T. points out a very important aspect of Estrada: “The basis of our decision in Estrada was our quest for legislative intent.”

In other words, Estrada does NOT establish a rule that ameliorative provisions apply retroactively to defendants whose judgments are final. Instead, it holds that the courts will assume that the Legislature meant amelioration to apply to any that it could, UNLESS there is something that indicates that the Legislature did NOT intend it to apply retroactively.

So why didn’t the Supreme Court agree with Pedro that he should get the benefit of the reduced tier? “Ordinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest. In the case of a “sunset” provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.” (Pedro T., at p. 1045.)

The court noted the practical effect of a contrary rule. The purpose of increasing the triad was to make the consequences more severe so the average car thief would be discouraged from stealing cars. (I have thoughts running through my mind trying to pinpoint clients I had who refrained from misconduct because they carefully considered the penalty that potentially could be inflicted were they to be caught. I’m even trying to think whether I ever had a client who thought he (or she) might be caught. Nope, can’t think of any. But surly there must be SOME people who were willing to steal cars when the range was 16-2-3 but decided it wasn’t worth it when the penalty rose to 2-3-4. I suppose I simply never met the ones who didn’t do the crime because they didn’t want to do THAT much more time.)

But I digressed. Sorry ’bout that. The practical effect stated by Pedro T. is that a three-year legislative experiment in enhanced penalties might be seriously undermined if those penalties, instead of applying to all offenders during the three years, could be imposed only on those whose convictions became final before the sunset date. A rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term.

All in all, then, the Pedro T. majority (four of the seven justices; there was a dissenting opinion by Justice Arabian, in which Justices Kennard and Mosk concurred) concluded that it was the intent of the Legislature that all persons convicted of committing the crime during the three years of the increased triad were to be punished with that triad in mind, and the reversion to the lower triad was not to be considered retroactive to those whose judgments were not final when the sun set and the penalty lowered to its former self.

Many years ago (2013 and 2014), I wrote a few articles in the Forum (the publication produced by the California Attorneys For Criminal Justice) tracing the development of Estrada. Four cases were decided at that time, with variations on whether the factual scenario supported retroactivity.

In re Daup (1965) 63 Cal.2d 754 had the same result as Estrada. Daup escaped from prison at a time when the penalty for escape without force or violence was a term in prison of not less than one year (meaning the maximum was life). Prior to his trial, the statute was amended and the penalty for that crime was six months to five years in prison. Mr. Daup got the benefit of the reduction.

In re Griffin (1965) 63 Cal.2d 757, reiterated the holding in Estrada, but found that the statute in question was not ameliorative as to the defendant. The defendant had been sentenced to prison for 10 years to life on the current drug offense (Health & Saf. Code, sec. 11351) because he had a prior conviction of a type that triggered that sentence. Before judgment was final, however, the Legislature lowered the term to five years to life, but increased the minimum time that must be served before the inmate could be paroled. Thus, it ameliorated the punishment in some respects, and increased it in others. Since he had already been paroled, application of retroactivity would actually have sent him back to prison because he had been paroled earlier than under the new law. The Court concluded that the overall effect of the change in the law was harsher, and declined to apply it to the defendant. I’d like to say I’ve often wondered whether the result would have been different had he not yet been paroled. But I can’t honestly say I’ve often wondered about it. Maybe just once or twice?

In re Kirk (1965) 63 Cal.2d 761 again upheld the presumption in Estrada, and reached the same result as Estrada. He committed his theft when the felony trigger was $50 (less than would be petty theft, a misdemeanor), and he’d stolen $75. Before his judgment became final, though, the threshold rose to $100. The Supreme Court deemed the change applicable to him, reducing his offense from felony to misdemeanor status.

Note that all four cases arose by way of habeas corpus petitions. Back in the day, the judges did not set felony sentences when probation was not granted. If not granted probation, the person was sentence to imprisonment in the state prison for the term prescribed by law. Assault with a deadly weapon carried a penalty of six months to life. Assault with intent to kill (under section 217, which was repealed decades ago) carried 1 year to 14 years. In Daup’s case, the penalty changed from “a term in prison of not less than one year,” which meant potentially a life term. Then it was changed to six months to five years.

The Adult Authority was the body that decided when a prisoner could be released on parole. When the Determinate Sentence Law (DSL) was enacted in 1976-1977, the terms specified as the tiers were based on the terms that normally had been fixed by the Adult Authority for release on parole. Or at least, the practices were examined and were influential in decisions on the triads.

Did you know that for a short time, until around 1978, second degree murder was assigned a range of 5-6-7 years under the Determinate Sentence Law? If you have a cold case pop up, it’s very important to look at the exact statutes in effect at the time of the offense. Until the early 1980s, life terms could not be ordered to be served consecutively. Who knew, eh? For a few years back in the day, if a defendant on a wobbler was committed to the California Youth Authority, it immediately rendered the offense a misdemeanor. There was no requirement of successful completion. Also, there were limitations on the combined length of determinate terms where consecutive sentences were imposed. Every hear of “double the base term”? Or five-year limitations on prior prison term enhancements?

I have no official source for the following claim, and I have no idea whether it is even remotely true, but I heard that prosecutors and judges approached the Legislature in at least the 1980s and 1990s to do away with as many of the limitations as possible because the DSL was too complicated. Seriously? Anyone read the tax codes and successfully get them simplified? Again, I do NOT know whether that claim has any truth. It may be simply a result of myths and legends generated by and kept alive by defense attorneys lamenting the loss.

And in my admittedly biased opinion, the DSL was nowhere nearly as complex as some of the “hard on crime and criminals” statutes that were enacted in the decades since.

It has been refreshing (again, I’m biased) to see the reasonable move by the Legislature in recent years to restore justice over vengeance (yes, “meow”) to the extent it (and the initiative process as well, I guess) has.

Amelioration, Retroactivity, Sentencing

Case: 000315

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to section 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike. It is undisputed that the trial court did not evaluate whether the conduct underlying the defendant’s prior convictions would violate section 186.22 as amended by AB 333, and nothing in the record would have afforded it a basis to do so. We will reverse the judgment and remand the matter for the trial court to apply the elements of section 186.22 as amended. On remand, the People must decide whether to prosecute the prior strike allegations under the law as amended by AB 333 (2021–2022 Reg. Sess.). The trial court must resentence the defendant.

Holding:

When determining whether a prior serious felony conviction qualifies as a strike based on gang criminal activity, sentencing courts must consider whether the conduct underlying a prior conviction that by operation of section 186.22 is alleged to be a serious or violent felony still satisfies section 186.22 as amended.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608