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California Supreme Court:
Retroactivity Does Not Apply to Gang-Crime Bifurcation
Chief Justice Guerrero Says That Case Law Holding That Legislative Sentencing Changes May Be Applied to Cases Not Yet Final Does Not Stretch to Such Procedural Rules
By a MetNews Staff Writer
The California Supreme Court held yesterday that Penal Code §1109 which requires that gang-participation offenses and enhancements be tried separately from all other charged offenses that do not require gang evidence as an element of the crime, does not apply retroactively to cases in which a judgment of conviction is not yet final.
The question arose in case against five defendants who were convicted by a jury of two counts of second-degree robbery and against whom gang enhancements were found to be true.
Chief Justice Patricia Guerrero authored the opinion reversing the judgment of the Sixth District Court of Appeal, which in turn reversed a judgment of conviction by Santa Clara Superior Court Judge Cynthia Sevely. Justices Carol A. Corrigan, Leondra R. Kruger, Joshua Groban, and Martin J. Jenkins joined in the opinion.
Justice Kelli Evans dissented and Justice Goodwin H. Liu joined in her opinion.
Guerrero noted that ‘[t]his question has divided the Courts of Appeal” and expressly disapproved the 2022 Fifth District Court of Appeals decisions in People v. Montano and People v. Ramos.
2022 Statute
Appealing their convictions were Francisco Burgos, Damon Stevensen Jr. and James Richardson who were convicted of robbing Gabriel Cortez and Danny Rodriguez near a convenience store in San Jose around midnight on Aug. 29, 2015.
The defendants request to bifurcate trial on the gang enhancements was denied. Sevely sentenced each man to 21 years in state prison.
While the defendant’s appeals were ending, the Legislature in 2021 passed Assembly Bill 333 which amended Penal Code §186.22 by narrowing certain gang-related definitions and adding new requirements. The bill also added §1109 to the code, which provides, in part:
“(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows:
“(1) The question of the defendant’s guilt of the underlying offense shall be first determined.
“(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement….”
A divided Sixth District Court of Appeal held that §1109 applied retroactively to the defendants’ convictions in this case, saying that there was no dispute that the changes to §186.22 apply retroactively. The majority reasoned, in an opinion by Presiding Justice Mary J. Greenwood, that the bifurcation process was akin to sentencing mitigation revisions which were held to be retroactive under the 1965 California Supreme Court decision in People v. Estrada.
Estrada Case
Guerrero noted that Penal Code §3, providing that no part of the Penal Code is to be treated as retroactive unless “expressly so declared,” creates a strong presumption of prospective-only application when a statute does not expressly address retroactivity. However, she pointed out, “this court has recognized an…exception to this rule.”
The chief justice quoting Justice Raymond E. Peters (now deceased) as saying in Estrada:
“When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply….This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance….”
Guerrero explained that the Estrada rule has been expanded in application, saying:
“We have applied Estrada’s inference of retroactivity to legislation that created an affirmative defense, contracted a criminal offense, or otherwise lessened punishment in some meaningful manner. These laws have included statutes addressing penalty enhancements as well as statutes concerned with substantive offenses.”
The jurist also pointed to the expansion of retroactivity to cases involving juveniles or persons suffering from mental health disorders, but said “[w]e have found Estrada inapplicable to statutes that, although arguably lessening punishment in some sense, did not implicate the central rationale behind the Estrada inference.”
Language and Intent
Noting that there is no dispute that the section does not contain an express statement as to retroactivity, she turned to the question of whether it was impliedly addressed. Finding that it was not, she said:
“There is no question that the legislative findings accompanying Assembly Bill 333 reflect significant concerns about gang enhancements in general, including about their usefulness in stemming crime and their disproportionate impact on people of color….However,…there is nothing in the legislative history to suggest that the Legislature considered the issue of retroactivity at all.”
Turning to the question of whether the statute operates to mitigate punishment, Guerrero said:
“By its terms, section 1109 does not directly or potentially reduce the punishment for an offense. Nor does it change the elements of a substantive offense, defense, or penalty enhancement. Likewise, it does not create an alternative avenue for certain individuals to receive lesser or no punishment. Instead, section 1109 reflects a prophylactic procedural rule that modifies the sequence of trial proceedings.”
She declared that “[b]ecause the procedures established by section 1109 do not alter the criminality of defendant’s conduct or the severity of punishment, the logic of Estrada does not apply,” adding:
“We decline to apply Estrada’s inference of retroactivity when, as here, there is no alteration to criminality or the legislated punishment.”
Evans’ View
Evans disagreed, saying that the primary analysis should turn on legislative intent and opined that the Legislature’s purpose in enacting the statute was to address a concern over the prejudicial nature of evidence relating to gang activities and concerns over racial disparity.
“[I]t’s no exaggeration to say that convicting the innocent is what the law abhors most. Such a scenario is the subject of some of our culture’s most enduring literature and film, from To Kill a Mockingbird to The Shawshank Redemption,” she wrote. “Instances of convicting the innocent haunt our nation’s history.”
Evans continued:
“Never before have we denied retroactive effect to a statute that ‘by design and function provides a possible ameliorating benefit for a class of persons’…— and certainly not when the statute is aimed at preventing the conviction of an innocent defendant. Not even once.”
Groban wrote separately only to express concern that the legislature’s tendency to “remain silent regarding retroactivity” required the courts to use “less than perfect analytical tools” and encouraged the legislature to “plainly state whether or not the statute in question is retroactive.”
The case is People v. Burgos, 2024 S.O.S. 1762.
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