Tag Archives: Retroactivity

Amelioration, Sentencing

Case: 000384

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for the trial court to determine whether the defendant’s 2010 conviction still constitutes a serious felony and strike in like of the application of AB 333.

Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, 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. 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:

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

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, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)