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S.C. Says Case Not Final if Resentencing Pending on Remand
Opinion Says Criminal Judgment Is Not Complete, for Purposes of Whether New Legislation May Be Applied to Reduce Penalty, Where Conviction Was Affirmed on Appeal if Sentencing Remains Open
By Kimber Cooley, associate editor
A criminal case is not final, for purposes of whether new legislation may be retroactively applied to reduce the defendant’s liability or sentencing, when the conviction has been affirmed on direct appeal but the matter has been remanded to the trial court for reconsideration of sentencing-related issues, the California Supreme Court held yesterday.
The question arose in a murder case against Oscar Lopez, who had been convicted of first-degree murder, and other related charges, relating to the 2014 deadly shooting of Nestor Miranda in San Bernardino County.
In January 2018, Lopez was sentenced to a prison term of 141 years to life, based on the charges and enhancements, including allegations that he committed the crimes for the benefit of a criminal street gang, personally used a firearm, and had suffered a prior conviction for a serious felony.
On appeal, Div. Two of the Fourth District Court of Appeal affirmed his conviction but remanded for reconsideration of his sentence in light of newly enacted laws, effective in 2018 and 2019, that expanded the trial court’s authority to strike or dismiss enhancements based on prior serious felony convictions and firearm use.
While Lopez was awaiting resentencing in the trial court, the Legislature enacted Assembly Bill 333 in 2021, which narrows the definition of “criminal street gang” for purposes of the sentencing enhancement and a related substantive offense. Lopez contends the evidence presented at his trial was insufficient to support the enhancement as amended.
On Oct. 13, 2022, San Bernardino Superior Court Judge Bridgid M. McCann declined to apply the legislative changes to Lopez’s case, saying his conviction was final. She struck the prior serious felony enhancement and resentenced the defendant to 101 years to life in prison.
Lopez appealed again.
Court of Appeal’s View
In a divided opinion, authored by Presiding Justice Manuel A. Ramirez and joined in by Justice Douglas P. Miller, Div. Two affirmed, holding that the judgment was not final for purposes of whether Lopez was entitled to the benefits of Assembly Bill 333 but concluding that “because we had reversed solely with respect to the sentence…, the trial court did not have jurisdiction to reconsider the gang enhancement.”
Justice Michael J. Raphael dissented, saying “the legislation the majority agrees applies retroactively to non-final cases applies to this one” and “[t]hat is all we need to know to remand the case and direct the trial court to apply the new law.”
Justice Goodwin H. Liu authored yesterday’s opinion for a unanimous court, reversing the judgment. He wrote:
“A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final…and the benefits of supervening ameliorative legislation apply retroactively.”
As to the jurisdiction of the trial court, Liu remarked:
“[B]oth parties agree the Court of Appeal was incorrect in concluding Assembly Bill 333 cannot be applied retroactively to Lopez’s case due to the superior court’s limited jurisdiction as defined by the remittitur. The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.”
Estrada Case
Liu pointed to the 1965 California Supreme Court case of In re Estrada as setting forth the guiding principles for when new legislation, which provides for reduced punishment on an offense, applies retroactively. He said:
“In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all nonfinal cases….The focus is on finality because ameliorative enactments can constitutionally apply to any case where the judgment is not yet final….For purposes of Estrada, the test for finality is ‘whether the criminal prosecution or proceeding as a whole is complete.’….The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability.”
The jurist explained that “[a] case is final when ‘the courts can no longer provide a remedy to a defendant on direct review’ ” and that, “[f]or Estrada purposes, the ‘judgment’ means the [conviction] and the sentence.”
He noted that later jurisprudence has established that “Estrada applies to statutory amendments ‘which redefine, to the benefit of defendants, conduct subject to criminal sanctions.’ ” Assembly Bill 333 is such an amendment, as it changed, among other things, the definition of “gang” in Penal Code §186.22 as well as what the prosecution is required to prove to support the enhancement.
Finality of Case
Turning to Lopez’s case, Liu opined:
“Assembly Bill 333 took effect on January 1, 2022, before Lopez exhausted his remedies on direct appeal. At that point, the criminal proceeding was pending before the superior court following the Court of Appeal’s vacatur of sentence and remand for resentencing….[T]here is no [constitutional prohibition]…to requiring retroactive application of ameliorative laws where a criminal conviction has been affirmed on direct appeal but sentencing issues remain pending on remand before the superior court. Accordingly, and as we presume the Legislature intended, Lopez was entitled to the benefit of Assembly Bill 333.”
The Office of the Attorney General argued that the gang enhancement was “affirmed and final on direct appeal at the time the new legislation went into effect,” pointing to cases following Estrada which seemed to distinguish between “final” and “nonfinal” parts of a criminal’s judgment.
Unpersuaded, Liu commended that the cases did not stand for the premise that judgments may be bifurcated or “change the principle that, for purposes of Estrada, ‘[t]he cutoff point for application of ameliorative amendments is the date when the entire case or prosecution is reduced to a final judgment.’ ”
Relitigation of Guilt
The justice was similarly unmoved by the prosecution’s concerns applying the bill’s provisions to Lopez’s case would amount to relitigating guilt as the enhancement had already been proven at trial and affirmed on appeal. Liu said:
“In light of Estrada, we presume the Legislature was aware that retroactive application of Assembly Bill 333 would result in the retrial of gang offenses and enhancements. If the Legislature wished to avoid such retrials, it could have ‘provide[d] for a different or more limited form of retroactivity, or for no retroactivity at all.’ ”
He added:
“Lopez’s case ‘does not come near whatever limits there may be on the power of lawmakers to impose their commands retroactively.’….Because Estrada requires ameliorative legislation to be applied as broadly as constitutionally permissible, and because Lopez’s judgment was not reduced to a final disposition, his case is not final for purposes of Estrada. Accordingly, he is entitled to retroactive application of Assembly Bill 333’s substantive changes.”
Trial Court Jurisdiction
Addressing the jurisdiction of the superior court to provide relief under applicable ameliorative laws after the case was conditionally reversed and remanded, Liu declared:
“[T]he Court of Appeal determined the superior court did not have jurisdiction to apply Assembly Bill 333 when the matter was before it on remand to address sentencing issues….But the superior court’s jurisdiction as set forth in a remittitur does not determine whether an ameliorative law applies retroactively. It would tax judicial resources to require defendants like Lopez to take a second appeal to secure a second remand to the superior court in order to obtain any relief to which they may be entitled.”
He concluded that “[o]n remand, Lopez may renew his arguments that he is entitled to resentencing” under other applicable laws.
The case is People v. Lopez, 2025 S.O.S. 201.
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