82 Cal.App.5th 376
Cal. Ct. App.2022Background
- In 2004 Salgado shot at a rival gang member, killing a bystander; jury convicted him of second-degree murder, attempted murder, assaults, possession, and active participation in a criminal street gang, and found multiple gang and firearm enhancements true.
- He was originally sentenced to 63 years-to-life; this court previously affirmed on direct appeal.
- The CDCR later notified the trial court that imposition of both a gang enhancement and a firearm enhancement on certain counts conflicted with recent case law; the trial court recalled sentence under former Penal Code §1170(d)(1) and resentenced Salgado in 2021 to 41 years-to-life (including a 1-year gang enhancement).
- After resentencing, the Legislature enacted Assembly Bill 333 (amending Penal Code §186.22) and Assembly Bill 1540 (moving recall/resentencing rules to §1170.03, later renumbered §1172.1), changing substantive and procedural requirements for proving gang offenses and clarifying resentencing application.
- Salgado sought supplemental briefing arguing AB 333 applies retroactively because his judgment was not final after recall/resentencing; the Attorney General conceded many sentencing errors but contended AB 333 should not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB 333 applies retroactively to Salgado after recall/resentencing | AG: Salgado’s convictions and enhancement findings were final before AB 333, so it should not apply | Salgado: His judgment was not final after recall/resentencing, so Estrada retroactivity applies | Court: AB 333 applies because resentencing under former §1170(d) vacated the earlier final judgment; retroactive application required |
| Whether the substantive gang conviction and gang-enhancement findings must be reversed/vacated under AB 333 | AG: If AB 333 applies, reversal is required (concedes) | Salgado: The gang conviction and enhancements must be reversed because jury did not make new factual findings required by AB 333 | Court: Reversed the substantive gang offense conviction and vacated jury’s gang-enhancement findings |
| Whether retrial on gang offense/enhancements is barred by double jeopardy | AG: Prosecution should be allowed to retry under new statute | Salgado: (implicit) retrial not barred? | Court: Retrial permissible because reversal stems from change in law, not insufficiency of evidence; prosecution may retry gang allegations under AB 333 |
| Remedy on remand (resentencing/custody credits) | AG: Court should consider statutory sentencing arguments on remand | Salgado: Requests correction of clerical and credit calculation errors | Court: Remand for limited retrial on gang issues if prosecution elects; then full resentencing under §1172.1 applying all ameliorative changes and recalculated custody credits; declined to resolve other sentencing claims now |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (1965) (statutory reductions in punishment apply retroactively to judgments not yet final)
- People v. Padilla, 13 Cal.5th 152 (2021) (recall and resentencing vacates the original sentence and permits imposition of any appropriate sentence)
- People v. Sek, 74 Cal.App.5th 657 (2022) (AB 333 changed elements for gang offenses; retroactive application requires new factual findings)
- People v. Lopez, 73 Cal.App.5th 327 (2021) (AB 333 applies retroactively to nonfinal judgments)
- People v. Montes, 70 Cal.App.5th 35 (2021) (resentencing under §1170(d) effectively vacates earlier judgment)
- People v. McMurray, 76 Cal.App.5th 1035 (2022) (when resentencing law changes on appeal, remand for resentencing under updated statute is appropriate)
- People v. Buckhalter, 26 Cal.4th 20 (2001) (on resentencing, court must recalculate and credit all actual time served)