Tag Archives: Retroactivity

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000214

Posted on by Gary McCurdy

Error and/or relief

After the defendant was convicted, but before the judgment became final, AB 333 was enacted, and its application in defendant’s case. We vacate the gang enhancement allegation findings under section 186.22(b), and remand the matter to the trial court to permit the People to elect to retry the gang enhancements or, if the People do not so elect, for the trial court to proceed with resentencing petitioner in conformance with this opinion.

Holding:

AB 333 made substantial changes to the elements of criminal gang activity. These changes apply retroactively to all cases not yet final on the effective date of AB 333, January 1, 2022. A defendant is entitled to relief under AB 333 if an appellate court affirmed the judgment, but sentencing issues were pending upon remand as of its effective date.

Authority:

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

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000207

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. Defendant’s sentence is vacated, and this matter is remanded for further proceedings to include the option to retry the allegation and for resentencing.

First Holding:

Effective January 1, 2022, the Legislature enacted AB 333 to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 576

People v. Fletcher (2025) 18 Cal.5th 576, 586

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

Second Holding:

Though the prior conviction of what purported to be a serious felony was sustained in 2014, 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.

Authority:

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

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

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

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

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

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, Retroactivity, Sentencing

Case: 000182

Posted on by Gary McCurdy

Error and/or relief

In light of AB 333, the trial court’s true findings on the prior serious felony enhancement and the strike prior allegations must be reversed. It is undisputed that there was insufficient evidence that defendant’s prior gang-related conviction (sec. 186.22(a)) satisfied the more stringent evidentiary requirements imposed by the change in law. Therefore, the court erred in considering that conviction to double defendant’s sentence. Accordingly, we will vacate the sentence and remand the matter for further proceedings. The defendant’s sentence is vacated and the matter is remanded for further proceedings, including a full resentencing. On remand, the People may elect to retry, under current law, the allegation that defendant’s prior gang-related conviction qualifies as a serious felony and strike prior for purposes of the three strikes law and a prior serious felony enhancement.

First Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) narrowed liability for gang-related offenses by requiring more stringent evidentiary requirements for proving them.

Authority:

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

People v. Rojas (2023) 15 Cal.5th 561, 576

Second Holding:

AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It applies to the analogous determination under section 667(a) for prior serious felony enhancements. Thus, AB 333’s amendments to section 186.22 apply to the current determination of whether the prosecution has proven the prior serious felony enhancement allegations in this case. In other words, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 605, 607

Third Holding:

Where, as here, AB 333 applies retroactively to the determination of whether a prior gang-related conviction qualifies as a serious felony for purposes of the three strikes law and a prior serious felony enhancement we review for harmless error pursuant to Chapman. Vacating a true finding is required unless it appears beyond a reasonable doubt that the finding would have been the same under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

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

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

People v. Lewis (2006) 139 Cal.App.4th 874, 887

Fourth Holding:

At the time the defendant entered his guilty plea, the People were not required to prove, and defendant did not admit, the current evidentiary requirements of that provision, as amended by AB 333. Under these circumstances, the appropriate remedy is to vacate the true findings on the allegations that defendant’s prior gang-related conviction qualifies as a prior serious felony for purposes of the three strikes law and the prior serious felony enhancement and remand the matter to the trial court to allow the People the opportunity to retry those allegations under current law, considering the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Fines and fees, Retroactivity

Case: 000180

Posted on by Gary McCurdy

Error and/or relief

The restitution fine imposed more than 10 years ago must be stricken from the judgment.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that, 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

Second Holding:

The statute is retroactive, because On January 1, 2025, when the amendment became effective, his restitution fine was rendered uncollectible and unenforceable. There is no authority for the People’s assertion that a hearing on a petition for resentencing under section 1172.75 starts a new period of 10 years.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069 [applying the amendment to a restitution fine imposed in 2008]