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California Court of Appeal: New Law Requiring Bifurcated Trial on Gang Enhancements Applies Retroactively

by David M. Reutter

The Court of Appeal of California, Sixth Appellate District, held that Assembly Bill No. 333, which changed the law on gang-related offenses, applies retroactively. The Court’s opinion reversed the judgments of convictions and remanded for new trials where the issue of guilt is bifurcated from the issue of gang-related activity.

Before the Court were the appeals of Francisco Burgos, James Daniel Richardson, and Damon Stevenson, Jr. They were charged with two counts of second-degree robbery for an incident that occurred on August 29, 2015.

The jury’s March 2017 verdict found true that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. It hung on allegations that a principal used a firearm in commission of the offense.

At a bench trial, the trial court found Burgos and Stevenson had prior convictions. Richardson admitted to his prior conviction. The court imposed sentences of six years for robbery, ten years for the gang enhancements, and five years for the prior felony offenses.

On appeal, Burgos, Richardson, and Stevenson argued the evidence was insufficient to support the conviction. The Court of Appeal disagreed and found sufficient evidence existed to support the robbery convictions for all three appellants.

Next, they argued that they were entitled to retroactive application of Assembly Bill 333 (“AB 333”), which amended Penal Code § 186.22 to, among other things, require a more stringent showing to prove a gang enhancement. AB 333 also added Penal Code § 1109, which allows the defense to request a bifurcated trial on gang enhancements.

The Attorney General conceded that appellants were entitled to retroactive application of the amendment to § 186.22 “insofar as it changed the evidentiary requirements for gang enhancements.” Thus, the enhancements had to be vacated. The Attorney General argued that on remand the prosecution should be allowed to prove the enhancements under the revised statute while leaving the robbery convictions in place. The Court agreed § 186.22 applies retroactively, and it remanded for a retrial on the gang enhancements.

It then turned to consider whether or not § 1108 applies retroactively. The Court considered three cases from the California Supreme Court that dictated its conclusion. In re Estrada, 408 P.2d 948 (Cal. 1965), has been “applied [retroactively] to new laws that expressly reduced the punishment for an offense or eliminated criminal penalties for certain conduct.” The decision in People v. Superior Court (Lara), 410 P.3d 22 (Cal. 2018), “clarified the scope of the Estrada rule, expressly holding that a new statute may apply retroactively even if it concerns purely procedural changes that do not directly reduce the punishment of a crime.” Finally, in People v. Frahs, 466 P.3d 844 (Cal. 2020) the Supreme Court reiterated the principle that a statute that provides a “possible benefit to a class of criminal defendants” should be applied retroactively in the absence of an express savings clause limiting the statute to prospective-only application.

The Court found § 1109 applies to a distinct class of defendants—those charged with gang enhancements. Legislative “findings in Assembly Bill 333 also show the Legislature intended to reduce punishment for people of color—who overwhelmingly comprise the class of defendants charged with gang enhancements,” according to the Court.

“The findings further establish that the bifurcation of gang enhancements at trial is intended to ameliorate the prejudicial impact of trying enhancements together with the offense,” the Court wrote. “In other words, one of the ameliorative effects of bifurcation is that some defendants will actually be acquitted of the underlying offense absent the prejudicial impact of gang violence.”

The Legislature further found, “The mere specter of gang pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.” That finding led the Court to conclude, “the new bifurcation statute will necessarily reduce the degree of punishment for many defendants with gang enhancements, even if they never have to invoke its prophylactic protections at trial.”

Thus, the Court held that AB 333 applies retroactively, including the section that added Penal Code § 1109 for the bifurcation of trials between the guilt phase and gang-related allegations.

Accordingly, the Court reversed the judgments of convictions and vacated the true finding on all gang-related allegations under § 186.22. And the Court remanded the matter to the trial court for further proceedings. See: People v. Burgos, 77 Cal. App. 5th 550 (2022). 

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People v. Burgos



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