Tag Archives: Retroactivity

Amelioration, Sentencing

Case 000943

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a remand for the trial court to determine whether his strike prior is valid under current law, in light of the AB 333 changes to the gang activity law since the convictions of the purported strike offenses.

First Holding:

The defendant is entitled to a remand for the trial court to determine whether one of his strike priors satisfies the current requirements of the gang statute.

Authority:

AB 333

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

Second Holding:

AB 333 amended section 186.22 to provide, among other things, that an offense committed on behalf of a gang may support a substantive gang offense, gang enhancement, or, by definition, a gang special circumstance finding, only if the common benefit to members of a gang is more than reputational. AB 333 applies retroactively to cases pending on appeal

Authority:

PEN 186.22

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

Third Holding:

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.

If the record contains no indication that the defendant’s prior conviction was obtained under AB 333’s more stringent requirements, and the evidence used to prove the existence of the strike prior does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt, the remedy is to provide the People an opportunity to retry the strike allegation under the current law.

And, if the People elect not to retry the strike prior or fail to prove beyond a reasonable doubt that it satisfies the requirements of AB 333, the trial court must dismiss the allegation and conduct a full resentencing.

Authority:

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

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

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

Error and/or relief

In this appeal by the People following the resentencing of the defendant under section 1172.75, we affirm the lower court’s granting of a new trial on the gang-related special circumstances and gang enhancement allegations in light of AB 333.

First Holding:

The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would have rendered the same verdict absent the instructional error created by the passage of AB 333.

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. The People recognize this general rule, but contend independent review is more fitting given that the court below was not the original trial judge and based its review on a cold transcript and exhibits.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1260

Second Holding:

Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. We will review the trial court’s order for abuse of discretion.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1262-1263

Third Holding:

In 2021, the Legislature passed AB 333, which became effective January 1, 2022. The new legislation made several changes to the definition of section 186.22 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.

Authority:

PEN 186.22

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

Fourth Holding:

Although AB 333 does not expressly address the gang-murder special circumstance set forth in section 190.2(a)(22), the latter statute defines criminal street gang by express cross-reference to section 186.22(f). The same is true for a firearm enhancement alleged pursuant to section 12022.53(e)(1).

Authority:

People v. Hin (2025) 17 Cal.5th 401, 461

People v. Cooper (2023) 14 Cal.5th 735, 746

Fifth Holding:

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. To prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. Rather, the question is whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

(Gary note: The court then proceeded to examine the written opinion of the trial judge, and discussed the judge’s reasoning and statements of findings that led the trial court to the conclusion that a new trial was warranted. Those facts and that analysis are beyond what these summaries are designed to present, because the facts relied on in an unpublished opinion cannot be related to control a result in another case, and neither can the trial court’s reasoning be cited as authority, persuasitive or otherwise.)

Authority:

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

People v. Flood (1998) 18 Cal.4th 470, 504

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

People v. Lamb (2024) 16 Cal.5th 400, 449

People v. Mil (2012) 53 Cal.4th 400, 417

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

Amelioration, Sentencing

Case 000898

Posted on by Gary McCurdy

Error and/or relief

AB 333 amendments apply retroactively because the defendant’s judgment was not final following recall of his sentence, reverse his gang conviction and gang enhancements, and remand for further proceedings consistent with this opinion.

First Holding:

In 2022, AB 333 went into effect and made the following changes to the law on gang offenses and 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. Additionally, to prove collective engagement under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

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

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments apply retroactively to appellant’s case, as the judgment became nonfinal when he returned to the trial court under section 1172.75 for recall and resentencing. When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada purposes

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 394

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

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

Third Holding:

Here, section 1172.75 required the trial court to recall the sentence and resentence appellant. The court was to apply the sentencing rules of the Judicial Council and 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. As such, appellant’s judgment became nonfinal for Estrada purposes, and the court should have addressed amendments made by AB 333.

Authority:

PEN 1172.75

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

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

Fourth Holding:

The jury’s findings on the gang allegations in 2015 were made prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Respondent concedes the record does not disclose the error was harmless beyond a reasonable doubt and that remand is required.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fifth Holding:

Upon remand the prosecution must be given an opportunity to establish the elements of the substantive gang offense charged in count 5 and the gang enhancements on counts 1 through 3 and 8 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 33, the trial court must conduct a full resentencing.

Authority:

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

 

Amelioration, Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case 000886

Posted on by Gary McCurdy

Error and/or relief

1n 1991, for a crime committed in 1989, the defendant was sentenced to life without the possibility of parole (LWOP). When his case came up for resentencing under section 1172.75 in 2025, the court believed its only discretion was to impose less than the upper term on the determinate portion of his sentence. Defense counsel agreed. This was error. The court also erred in its calculation of credit for time served. And the restitution fine must be struck.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a sentence enhancement of one additional year for each of a defendant’s prior prison or jail terms. Section 1172.75(a) now provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b) is legally invalid.

Section 1172.75(b) and (c) mandate that the Department of Corrections and Rehabilitation identify eligible individuals whose sentences include now-invalidated section 667.5 enhancements, and that the trial court shall recall the sentence and resentence the defendant.

While conducting the resentencing, section 1172.75(d)(2), provides the express instruction that the court shall apply the sentencing rules of the Judicial Council and 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.

Authority:

PEN 1172.75

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

Second Holding:

Section 190.2(a) provides that where there has been a finding of certain enumerated special circumstances in connection with a defendant who has been found guilty of first degree murder, the penalty is death or LWOP. Section 1385 previously provided the trial court with the discretion to strike or dismiss the special circumstances.

Although the statute only authorizes such relief upon motion of the court or application of the prosecution, the defendant nevertheless has the right to invite the court to exercise its power by an application to strike a count.

Failure by a defendant to make such a request under section 1385 results in forfeiture of the issue. In the interests of justice, and in consideration of defendant’s alternative argument of ineffective assistance of counsel, we exercise our discretion to reach a question that has not been preserved for review by a party.

Authority:

PEN 190.2(a)

PEN 1385

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141, 1144

People v. Coleman (2024) 98 Cal.App.5th 709, 724

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

Third Holding:

Contrary to Section 1385, however, section 1385.1 provides that a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. The section was enacted as of June 6, 1990, via voter initiative Proposition 115. The dispute here centers around whether section 1385.1 serves as a bar to the trial court’s discretion to strike section 190.2 special circumstances when the court is resentencing a defendant pursuant to section 1172.75 for a pre-June 6, 1990, crime.

Authority:

PEN 1385.1

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Fourth Holding:

Ordinarily, we review the trial court’s sentencing decisions for abuse of discretion. However, defendant argues pursuant to McDavid that the trial court necessarily abused its discretion when it failed to strike his special circumstances because it was unaware that it had any discretion to do so.

We therefore examine whether the trial court had any discretion in this regard, which is a question of statutory interpretation to be reviewed de novo.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730, 757

People v. McDavid (2024) 15 Cal.5th 1015, 1023

Fifth Holding:

The Nguyen court noted that section 1385.1 operates only prospectively, therefore, a trial court may dismiss a special circumstance allegation attached to any murders committed before June 6, 1990, the date that section 1385.1 became effective. Nguyen specifically relied upon Tapia.

In Tapia, Proposition 115 took effect while the defendant was in the process of being prosecuted for first degree murder. The defendant challenged the trial court’s decision to conduct voir dire pursuant to the new Proposition 115 procedures.

In examining whether Proposition 115’s provisions could be applied to crimes committed prior to its effective date after consideration of ex post facto concerns, the Supreme Court separated the provisions into four separate categories depending on their impact upon defendants.

Relevant to this inquiry, the high court expressly categorized section 1385.1 as falling within the category of provisions that change the legal consequences of criminal behavior to the detriment of defendants and therefore cannot be applied to crimes committed before the measure’s effective date.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-287, 297

Sixth Holding:

The mandate in section 1172.75(d)(2), that the trial court apply any other changes in law that reduce sentences or provide for judicial discretion” evidences a legislative intent that defendants are to be treated with more leniency, not less, when being resentenced pursuant to this statute. Because the trial court clearly expressed more than once its belief that it did not have any discretion with respect to the LWOP sentence on Count 1, we deem the court to have abused its discretion and reverse.

Authority:

PEN 1172.75(d)(2)

People v. McDavid (2024) 15 Cal.5th 1015, 1023 [A court acting while unaware of the full scope of its discretion is deemed to have abused it.]

Seventh Holding:

The court court failed to award the defendant 2 days of credit for time served, and we modify the judgment accordingly.

(Gary note: The court did not cite any authority, but it seems obvious that the court has the power to modify the credit for time served to the correct number. I have cited authority the court could have relied on. The issue does not seem so much a matter of the trial court refusing to award credit; rather, it was a mathematical error. I speculate that perhaps the court did not award credit for the first day in custody. Counting days is different than determining the number of days between dates. From January 1 through January 31 is 31 days, counting. But if you subtract January 1 from January 31, you will realize only 30 days.  For credit for time served, the correct number is the counting number–31 in my example.)

Authority:

PEN 2900.5

Eighth Holding:

As part of defendant’s original 1991 sentencing, the court ordered him to pay $10,000 to the state Restitution Fund pursuant to Penal Code section 1202.4 (formerly Govt. Code sec. 13967(a).) In light of section 1465.9, which compels that restitution fines older than 10 years be vacated, we vacate that fine. In Salstrom, the court determined that the reference to 10 years is from the date the restitution fine was originally ordered.

Resentencing does not reset the 10-year limitation. Applying section 1465.9 to reduce defendant’s sentence as part of a section 1172.75 resentencing hearing gives effect to both statutes.

Authority:

PEN 1465.9

People v. Giordano (2007) 42 Cal.4th 644, 652-653 [detailing the history of the restitution statutes]

People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601, review granted on unrelated issues, March 11, 2026, S295038

Mejia v. Reed (2000) 31 Cal.4th 657, 663 [when two codes are to be construed, they must be read together and so construed as to give effect, when possible, to all the provisions thereof]

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, 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, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. 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.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

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

Third Holding:

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. The resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

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

Fourth Holding:

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.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

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

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

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459