Criminal
Sep. 28, 2026
California's retroactivity rule needs to go back in time
The California Supreme Court should reconsider or narrow In re Estrada because its presumption of retroactivity conflicts with Penal Code section 3 and has produced an increasingly difficult and inconsistent body of law.
Dylan Calsyn
Dylan Calsyn is recently retired, having worked for more than 20 years as a research attorney with the California Court of Appeal and for three years with the California Supreme Court.
California has a statute that could hardly be clearer. Since 1872, Penal Code section 3 has provided: "No part of [the Penal Code] is retroactive, unless expressly so declared."
For nearly a century, California courts followed that command. In People v. Harmon (1960) 54 Cal.2d 9, relying on a long line of Court of Appeal decisions, the California Supreme Court held that a st...
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