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California Supreme Court

Jun. 4, 2024

Supreme Court rules gang enhancement law only applies prospectively

The law went into effect on Jan. 1, 2022, and imposed new requirements on gang enhancements in criminal cases, including the option for defendants to request to be tried on the underlying offense first and then to present gang participation evidence in a subsequent proceeding.

Courtesy of the California State Supreme Court

The state Supreme Court, divided 5-2, concluded that a 2021 state law that allows criminal defendants to seek separate trials on gang enhancements can only be applied prospectively.

The decision, reversing a 6th District Court of Appeal ruling, resolves an ongoing dispute that affected several cases in California's appellate courts over what to do with criminal cases that were not final at the time.

The state Legislature passed AB 333, the STEP Forward Act of 2021, which imposed new requirements on gang enhancements in criminal cases, including the option for defendants to request to be tried on the underlying offense first and then to present gang participation evidence in a subsequent proceeding. The law, signed by Gov. Gavin Newsom, went into effect on Jan. 1, 2022.

The question in the case was what do about the court's 1965 precedent - In re: Estrada, 63.Cal.2d 740 - which held that the Legislature must have intended that an amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply.

Chief Justice Patricia Guerrero, noting the law was silent on how AB 333 would apply, ruled in favor of prosecutors. ""We conclude that the Estrada inference of retroactivity does not extend to section 1109," she wrote for the majority in reference to a section of the law.

"Estrada's principle of statutory interpretation infers retroactivity from statutory reductions in punishment, not from the type of prophylactic rules of criminal procedure embodied in section 1109's bifurcation provisions," added Guerrero, an appointee of Gov. Gavin Newsom. People v. Burgos et al., 2024 DJDAR 4773 (Cal. S. Ct., filed May 25, 2022).

She remanded the case for further proceedings.

But Justice Kelli M. Evans, a Newsom appointee, dissented and was joined by Justice Goodwin H. Liu, an appointee of Gov. Jerry Brown. She wrote that the law's purpose was to make it more difficult to convict defendants who had to defend against gang allegations while fighting the underlying charges at the same time.

"Unlike the majority, I find it unimaginable the Legislature would have restricted its concern about convicting the innocent to only a subset of those it could constitutionally reach," Evans added.

Five men were charged with robbing two people outside a San Jose convenience store in 2015. One pleaded guilty and a second defendant was acquitted. The other three - Francisco Burgos, Damon Stevenson, Jr., James Richardson - were found guilty after a trial where prosecutors presented evidence the robberies were committed in association with their involvement in a criminal street gang.

A Santa Clara County Superior Court jury found the trio guilty of second degree robbery with gang enhancements and they were sentenced to 21 years in prison. While Burgos and his co-defendants appealed, AB 333 passed and went into effect.

The state attorney general's office conceded that part of the law about the gang enhancement allegations applied retroactively and agreed to vacate them. But prosecutors disagreed about Section 1109's bifurcation provision, saying that only applied prospectively.

6th District Court of Appeal Administrative Presiding Justice Mary J. Greenwood reversed the convictions, noting that "the legislative findings in Assembly Bill 333 also show the Legislature intended to reduce punishment specifically for people of color-- who overwhelmingly comprise the class of defendants charged with gang enhancements."

Justice Joshua P. Groban, in a concurring opinion, expressed frustration that the question of whether a law should be applied retroactively keeps coming up.

"Without a clear statement from the Legislature, we scour uncodified legislative findings, declarations of purpose, statements on the floor, and committee reports in an effort to decipher the Legislature's intent," wrote Groban, a Brown appointee.

"This process is admittedly less precise than simply looking to a clear statement in the statute itself," he added. "Indeed, two of my distinguished colleagues here, analyzing exactly the same legislative materials relied on by the majority, have come to the opposite conclusion regarding retroactivity."

Justice Carol A. Corrigan, an appointee of Gov. Arnold Schwarzenegger, concurred with Groban.

Solomon R. Wollack -- a Pleasant Hill attorney who represents Richardson -- and Soquel attorney Laurie S. Wilmore -- who represents Burgos -- declined to comment. The state attorney general's office also did not return an email as of press time.


Craig Anderson

Daily Journal Staff Writer

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