by Sagi Schwartzberg

The Supreme Court of California held that a defendant was entitled to retroactive application of an amended ameliorative statute because a criminal case’s judgment is not final until the entire prosecution, including the sentencing phase, is complete.

Background

In October 2014, Oscar Lopez and his passenger Sergio Vidrio stopped their car alongside another vehicle occupied by Nestor M. and Noel A. Either Lopez or Vidrio asked, “Where are you guys from?” and Nestor responded, though Noel was unable to hear what Nestor said. Lopez and Vidrio then pulled out guns and fired multiple shots into the other vehicle, killing Nestor and injuring Noel. 

Following a jury trial, Lopez was convicted of first degree murder, attempted premeditated murder, shooting at an occupied vehicle, and possession of a firearm by a felon. The jury further found that Lopez committed the crimes for the benefit of a criminal street gang, personally used a firearm, and personally and intentionally discharged a firearm causing great bodily injury or death during a crime committed for the benefit of a criminal street gang.

In a bifurcated proceeding, the trial court further found that Lopez suffered a prior strike conviction, a prior serious felony conviction, and had served three prior prison terms. It sentenced Lopez to a prison term of 141 years to life. Lopez timely appealed.

The Court of Appeal modified the sentence and conditionally reversed, remanding the case back to the trial court for resentencing pursuant to Senate Bills Nos. 620 and 1393, which expanded the trial court’s authority to strike or dismiss certain enhancements in the furtherance of justice under Penal Code § 1385. The disposition read: “The judgment as thus modified is conditionally reversed. On remand, the trial court shall consider whether to strike … the prior serious felony conviction enhancement[] or any of the firearm enhancements. If it does so … it must resentence … defendant. Otherwise, it must reinstate the modified judgment.”

While resentencing was pending, the California Legislature enacted Assembly Bill 333, which added new elements to the substantive offense and enhancements in the gang statute. The substantive changes apply retroactively to all nonfinal cases under In re Estrada, 408 P.2d 948 (Cal. 1965), which requires the presumption that the Legislature intends for the benefits of new enactments to apply as broadly as constitutionally permissible to all nonfinal cases. People v. Tran, 515 P.3d 1210 (Cal. 2022).

On October 13, 2022, the trial court held a resentencing hearing and declined to apply Assembly Bill 333 retroactively to Lopez, concluding that his conviction was final. Lopez was then resentenced to 101 years to life in prison. Lopez again timely appealed. On his second appeal, the Court of Appeal held that Lopez’s judgment was nonfinal under Estrada, but the trial court had no jurisdiction to re-adjudicate the gang enhancement based on the terms of the Court of Appeal’s remittitur. Lopez sought review from the California Supreme Court, which granted review to decide whether a defendant is entitled to retroactive application of Assembly Bill 333 where an appellate court has affirmed the underlying conviction but sentencing issues remain pending.

Analysis

The California Supreme Court addressed the question of whether a defendant is entitled to the retroactive application of Assembly Bill 333, which amended Penal Code § 186.22 to impose stricter requirements for gang-related enhancements, when an appellate court has affirmed the underlying conviction but sentencing issues remain pending on remand.

The Court’s analysis focused on the retroactivity principles established in In re Estrada, which presumes that ameliorative statutes – those reducing punishment or redefining criminal conduct to a defendant’s benefit – apply retroactively to nonfinal cases unless the Legislature clearly indicates otherwise. The Court clarified that for Estrada purposes, a “judgment” encompasses both the conviction and sentence, and a case remains nonfinal until “the criminal prosecution or proceeding as a whole is complete.” People v. Esquivel, 487 P.3d 974 (Cal. 2021). The Court stated that a judgment becomes final only when “the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed.” People v. Padilla, 509 P.3d 975 (Cal. 2022). An order leaving unresolved issues, such as sentencing, can reset the timeline for finality because as it extends the period for seeking certiorari. Hibbs v. Winn, 542 U.S. 88 (2004). 

Assembly Bill 333, effective January 1, 2022, introduced substantive changes to the gang enhancement statute, including: (1) requiring a “criminal street gang” to be an “ongoing, organized association or group of three or more persons,” (2) mandating that the gang’s pattern of criminal activity be “collectively engage[d] in” by members, (3) narrowing the definition of a “pattern of criminal activity” to require that the last predicate offense occur within three years of the charged offense, be committed by gang members, commonly benefit the gang, and exclude the current offense, and (4) requiring that the “common benefit” to the gang be “more than reputational.” People v. Tran, 515 P.3d 1210 (Cal. 2022); § 186.22, subds. (e) – (g). The Court stated that these changes, which lessen the scope of criminal liability, apply retroactively to nonfinal cases under Estrada. Tran.

Turning to the present case, the Court of Appeal had vacated Lopez’s sentence and remanded for resentencing under Senate Bills 620 and 1393, which expanded the trial court’s discretion to strike certain enhancements. Both parties agreed that the Court of Appeal erred in concluding the trial court lacked jurisdiction to apply Assembly Bill 333 due to the remittitur’s limited scope. The Court stated that the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. People v. Hargis, 33 Cal. App. 5th 199 (2019).

The Attorney General, however, argued that Lopez was not entitled to Assembly Bill 333’s benefits because his conviction was final when the law took effect, contending that the gang enhancement was “affirmed and final on direct appeal” and that retroactive application would impermissibly relitigate a finalized guilt determination. The Attorney General further argued that retroactivity would burden courts by requiring relitigation of gang enhancements and that the Legislature’s silence on retroactivity indicated an intent to limit its application.

The Court flatly rejected these arguments in a detailed discussion of Estrada’s retroactivity framework to clarify its application. It explained that in criminal actions, “‘judgment’ and ‘sentence’ are generally considered ‘synonymous,’” and a case remains nonfinal for Estrada purposes when any aspect, such as sentencing, is pending on appeal. People v. McKenzie, 459 P.3d 25 (Cal. 2020). The Court reasoned that because Lopez’s sentence was vacated and his case was pending resentencing when Assembly Bill 333 took effect, his judgment was not final.

Addressing the Attorney General’s concern about judicial burden, the Court noted that Lopez was entitled to litigate the gang enhancements under Assembly Bill 333’s amended standards “in the first instance.” The Court determined that there were no constitutional obstacles to retroactivity because the Legislature was presumed to be aware that retroactive application could lead to retrials of gang enhancements. The Court further rejected the argument that legislative silence limited retroactivity, stating: “Relying on legislative silence to infer an intent to limit the retroactive application of ameliorative laws would invert Estrada’s basic principle that we presume from legislative silence an intent to apply new laws as broadly as constitutional boundaries permit.” Padilla. This presumption reflects the principle that ameliorative statutes are intended to apply to “every case to which [they] constitutionally could apply” unless otherwise specified, explained the Court. Estrada.

The Court also clarified the practical implications of its holding, emphasizing that requiring defendants like Lopez to pursue a second appeal to secure retroactive relief would “tax judicial resources.” Instead, trial courts on remand for sentencing have jurisdiction to apply ameliorative laws like Assembly Bill 333, ensuring efficient administration of justice. Thus, the Court held that because Lopez’s case was not final and no constitutional barriers existed, he was entitled to the retroactive application of Assembly Bill 333’s substantive changes.

Conclusion

Accordingly, the Court reversed the Court of Appeal’s judgment and remanded the case, allowing Lopez to renew arguments for resentencing under Assembly Bill 333 and other applicable laws, including Senate Bills 567 and 81, in light of recent decisions in People v. Lynch, 552 P.3d 877 (Cal. 2024), and People v. Walker, 553 P.3d 150 (Cal. 2024). See: People v. Lopez, 562 P.3d 17 (Cal. 2025).  

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