Tag Archives: Retroactivity

Elements of crime, Retroactivity, Sentencing

Case 001141

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing the defendant for a term in prison that had not yet been enacted at the time of the crime.

First Holding:

On September 9, 2010, the Chelsea King Child Predator Prevention Act of 2010 went into effect, significantly increasing the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions.

The penalty for continuous sexual abuse of a minor under section 288.5 changed from 25 years to life from the former sentence of 15 years to life.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 237, fn. 4

In re Vaquera (2024) 15 Cal.5th 706, 713-714 [The amendment to section 667.61 added subdivision (j)(2)to increase the penalty to 25 years to life]

Second Holding:

Our state and federal Constitutions prohibit ex post facto laws. Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto.

The offenses the jury found defendant had committed against the victim necessarily occurred prior to when she turned 14 years of age prior to the effective date of Chelsea’s Law. Thus, the increased punishment under Chelsea’s Law effective on September 9, 2010, was not applicable, and the court erred in imposing a 25-year-to-life sentence. The sentence is vacated, and the matter is remanded for further proceedings.

Authority:

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Amelioration, Duty of the court, Retroactivity, Sentencing, Standard of review

Case 001116

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.

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.

Authority:

People v. E.H. (2022) 75 Cal.App.5th 467, 477

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

Second Holding:

Under Estrada, in the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date. When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.

Authority:

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

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

Third Holding:

When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Salgado (2022) 82 Cal.App.5th 376, 380-381 [the defendant was entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under section 1170(d)]

Fourth Holding:

The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.

Authority:

People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]

Chapman v. California (1967) 386 U.S. 18

Fifth Holding:

The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 668-669

Sixth Holding:

Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Standard of review

Case 001115

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 163

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740, 744–745

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

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.

In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 856

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Duty of the court, Retroactivity, Sentencing, Sixth Amendment

Case 001096

Posted on by Gary McCurdy

Error and/or relief

The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.

The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.

First Holding:

Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.

In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

Second Holding:

When a defendant is being resentenced under section 1172.75, a resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

The court shall appoint counsel to represent a defendant at resentencing proceedings.

Authority:

PEN 1172.75(d)(2), (d)(3), (d)(5)

Third Holding:

The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673

Fourth Holding:

Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.

Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.

Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Amelioration, Retroactivity, Sentencing

Case 001037

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding the defendant was not eligible for resentencing under section 1172.75 because his prior prison term enhancement had been stayed. Remanded for full resentencing.

First Holding:

Effective January 1, 2020, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. The amendment was retroactive to any case in which the judgment was not final. In 2022, what is now section 1172.75(a) became effective and made the change retroactive to now-invalid prior prison term enhancements imposed before January 1, 2020.

Authority:

PEN 667.5(b)

PEN 1172.75

People v. Lopez (2019) 42 Cal.App.5th 337, 340-342

Second Holding:

The statute requires the Department of Corrections and Rehabilitation (CDCR) to prepare a list of inmates serving a term that included imposition of a now-invalid prior prison term enhancement, and notify the appropriate sentencing court. Upon receiving names from CDCR, the sentencing court must review each person’s current judgment to confirm that it includes a qualifying enhancement and, if it does, it must recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(c)

Third Holding:

The trial court concluded that the defendant was not eligible for relief because the execution of the imposition of sentence on the now-invalid prison term enhancement had been stayed, and thus he was not serving a sentence so enhanced. Since then, however, the Supreme Court has clarified that such individuals are not ineligible for resentencing under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068 [Where a qualifying prison prior was imposed and stayed, the defendant is entitled to a section 1172.75 resentencing hearing]