THE PEOPLE, Plaintiff and Respondent, v.
S274743
IN THE SUPREME COURT OF CALIFORNIA
June 3, 2024
Sixth Appellate District H045212; Santa Clara County Superior Court C1518795, C1756994
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Kruger, Groban, and Jenkins concurred.
Justice Groban filed a concurring opinion, in which Justice Corrigan concurred.
Justice Evans filed a dissenting opinion, in which Justice Liu concurred.
PEOPLE v. BURGOS
S274743
In 2021, the Legislature passed Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), known as the STEP Forward Act of 2021. (Stats. 2021, ch. 699, § 1.) Assembly Bill 333 amended
We granted review to determine whether
Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. This well-settled principle is
We conclude that the Estrada inference of retroactivity does not extend to
I. FACTUAL AND PROCEDURAL BACKGROUND
Around midnight on August 29, 2015, Francisco Burgos, Damon Stevenson, Jr., James Richardson, Derrik Lozano, and Gregory Byrd approached Gabriel Cortez and Danny Rodriguez near a convenience store in San Jose. A member of the group asked Cortez and Rodriguez where they were from, whether they “banged,” and if they were from “Meadowfair,” a criminal street gang. After Cortez and Rodriguez responded that they were from “right here,” a member of the group responded, “Well, we‘re Crip[s].” The group proceeded to rob Cortez and Rodriguez at gunpoint and threatened to shoot them unless they left immediately. Cortez and Rodriguez ran to Cortez‘s home.
The People filed an information charging Burgos, Stevenson, Richardson, Lozano, and Byrd with two counts of second degree robbery. (
A jury found defendants guilty of two counts of second degree robbery and also found true the gang enhancement allegations. The trial court found true
While defendants’ appeals were pending, the Legislature passed Assembly Bill 333, which became effective January 1, 2022. (See People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) Assembly Bill 333 amended
The Attorney General conceded that the amendments to
A divided Court of Appeal held that
We granted review, limited to the issue of whether
II. DISCUSSION
Defendants contend that
1. Language and Legislative History of Section 1109
Prior to the enactment of
In enacting Assembly Bill 333, the Legislature made several findings and declarations related to
The question of whether a statute applies retroactively begins with
” ‘[T]he language of
However, the presumption that a statute will apply only prospectively “is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ ” (People v. Frahs (2020) 9 Cal.5th 618, 627 (Frahs).) “In applying this principle, we have been cautious not to infer retroactive intent from vague phrases and broad, general language in statutes.” (Brown, supra, 54 Cal.4th at p. 319; see also Aetna, supra, 30 Cal.2d at p. 396 [“it must be assumed that the Legislature was acquainted with the settled rules of statutory
3. The Estrada Exception to Prospective Application of Statutes
Although
In Estrada, we held that an amendment to a statute that reduces the punishment for a particular criminal offense gives rise to an inference that the statute applies retroactively to all judgments not yet final on appeal. (Estrada, supra, 63 Cal.2d at p. 745.) We explained our reasoning as follows: “There is one consideration of paramount importance. It leads inevitably to the conclusion that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Id. at pp. 744–745.)
At the same time, we reiterated in Estrada that
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. (E.g., People v. Prudholme (2023) 14 Cal.5th 961, 968–969 [statute reducing maximum probation term for nonviolent offenses applies retroactively]; People v. Wright (2006) 40 Cal.4th 81, 95 [newly enacted affirmative defense to transporting marijuana applies retroactively]; Nasalga, supra, 12 Cal.4th at p. 798 (plur. opn. of Werdegar, J.) [amendments that increase monetary amount of property loss to trigger sentencing enhancements apply retroactively]; Tapia, supra, 53 Cal.3d at pp. 300–301 [statute specifying that certain death-penalty qualifying special circumstances must be intentional applies retroactively]; People v. Rossi (1976) 18 Cal.3d 295, 302 [amendatory statute decriminalizing the commission of certain sexual acts applies retroactively].) We have also applied the Estrada inference to statutes that give trial courts discretion to impose lesser punishment. (People v. Stamps (2020) 9 Cal.5th 685, 699 [statute eliminating restriction on trial court‘s ability to strike serious felony enhancement applies retroactively]; People v. Francis (1969) 71 Cal.2d 66, 76 (Francis) [modified treatment of marijuana possession from straight felony to either felony or misdemeanor applies retroactively].)
More recently, we have applied the Estrada inference to statutes that, while not limited to reducing punishment for a particular crime, created a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether. (Frahs, supra, 9 Cal.5th at pp. 624, 629 [statute creating pretrial diversion program in lieu of criminal prosecution for individuals suffering from qualifying mental health disorders applies retroactively]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara) [statute prohibiting prosecutors from directly filing criminal charges against minors in “adult” criminal court and giving juvenile courts sole discretion to decide whether to prosecute minors as adults applies retroactively].) We explained in Lara that although Estrada was not directly on point, “its rationale does apply. The
Notably, however, we have recognized “the limited role Estrada properly plays in our jurisprudence of prospective versus retrospective operation” and reiterated that Estrada does not “weaken[] or modify[]”
We have found Estrada inapplicable to statutes that, although arguably lessening punishment in some sense, did not implicate the central rationale behind the Estrada inference. In Brown, we held that a statute that temporarily increased the rate at which local prisoners could earn conduct credits against their sentences for good behavior did not apply retroactively under Estrada (Brown, supra, 54 Cal.4th at pp. 318, 320), even though it resulted in less time served. We emphasized that Estrada “supports an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute‘s operative date. [Citation.] We based this conclusion on the premise that ’ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.” ’ ” (Brown, at p. 323, fn. omitted.)
We concluded in Brown that although the statute‘s increased rate for earning conduct credits functioned in practice to reduce punishment, it did not fall within the scope of Estrada. We explained that “the rule and logic of
Consistent with our reasoning in Brown, both our case law and decisions by the Courts of Appeal have declined to apply the Estrada presumption to new legislation that modified aspects of how criminal cases are investigated or tried.3 (Accord, Tapia, supra, 53 Cal.3d at p. 299 [we apply laws that “address the conduct of trials” that are in effect at the time of trial]; People v. Mortimer (1873) 46 Cal. 114, 118 [Pen. Code procedures govern trial of crimes defined and committed before the code‘s enactment].) In People v. Robertson (1989) 48 Cal.3d 18, 51 (Robertson),
In People v. Cervantes (2020) 55 Cal.App.5th 927 (Cervantes), the Court of Appeal held that legislative amendments to
Similarly, in People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee), the Court of Appeal rejected the claim that the Electronic Communications Privacy Act (
In sum, we have adhered to
As noted, the question of
In this case, the Court of Appeal majority concluded that
The majority then rejected the argument that “different parts of Assembly Bill 333 should be treated differently under Estrada.” (Burgos, supra, 77 Cal.App.5th at p. 567.) It reasoned that the “legislative findings setting forth the ameliorative purposes of the bill apply to the entire bill, and they specifically address the reasons for the new bifurcation rules.” (Ibid.) Considering Assembly Bill 333‘s substantive changes to
The dissenting justice below disagreed. In his view, ”
In Montano, supra, 80 Cal.App.5th 82 and Ramos, supra, 77 Cal.App.5th 1116, the Courts of Appeal agreed with the Burgos majority. In Montano, the appellate court relied on the uncodified preamble in Assembly Bill 333 in concluding that
Other Courts of Appeal, however, have found the dissent in Burgos persuasive. (Boukes, supra, 83 Cal.App.5th 937, review granted; Perez, supra, 78 Cal.App.5th 192, review granted; Ramirez, supra, 79 Cal.App.5th 48, review granted.) In Ramirez, the appellate court concluded that “the Estrada presumption does not apply to
With this background in mind, we turn to the question of whether
Before we address whether
The parties agree that section 1109 does not contain an express statement as to its retroactivity. Defendants maintain, however, that the legislative findings and declaration of purpose accompanying Assembly Bill 333 clearly indicate the Legislature intended its provisions would apply retroactively. They contend that the Legislature‘s stated objective to reduce the prejudicial impact of gang evidence, and the concerns it expressed regarding racial and socioeconomic disparities relating to prosecution under the gang enhancement statute, demonstrate that the Legislature intended the statute‘s bifurcation provisions would apply retroactively.
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 in particular.4 However, we do not discern from these findings a “clear and unavoidable implication” that the Legislature intended Assembly Bill 333‘s bifurcation provisions to apply retroactively. (Brown, supra, 54 Cal.4th at p. 319.) Moreover, there is nothing in the legislative history to suggest that the Legislature considered the issue of retroactivity
at all. (Cf. Evangelatos, supra, 44 Cal.3d at p. 1211 [enactment‘s stated objective to remedy system of inequity and injustice in tort actions does not suggest that the retroactivity question was considered].)
Indeed, our opinion in Tran, which concerned Assembly Bill 333‘s amendments to the gang enhancement statute, also suggests that the bill‘s legislative history does not shed much light on whether the Legislature intended for its provisions to have retroactive operation. If it did, it would not have been
Most of the legislative findings appear to relate most directly to the provisions of Assembly Bill 333 that substantively narrow the gang enhancement statute, not section 1109. The legislative findings describe the function of section 1109 in more equivocal terms. (Stats. 2021, ch. 699, § 2, subd. (d)(6) [“Gang enhancement evidence can be unreliable and prejudicial to a jury” (italics added)]; id., subd. (e) [“Studies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions” (italics added)]; id., subd. (f) [“Bifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact” (italics added)].)5 These limited assertions align with the
measured nature of change in subdivision (a) of section 1109, which gives defendants the election of a bifurcated or a unitary trial, rather than making bifurcation mandatory whenever gang evidence may be introduced. In short, the legislative findings do not clearly indicate the Legislature intended section 1109 to have retroactive operation. (See Buycks, supra, 5 Cal.5th at p. 880 [statute that is ambiguous regarding retroactive application applies prospectively].)
With no “express declaration of retroactivity or a clear and compelling implication that the Legislature intended” to apply the statute retroactively (Hayes, supra, 49 Cal.3d at p. 1274), we apply
Because 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. (See Robertson, supra, 48 Cal.3d at p. 51.) The further any particular amendatory act is from a clear reduction of punishment, or removal of a class of defendants from the criminal system altogether, the less “inevitable” and “obvious” (Estrada, supra, 63 Cal.2d at p. 745) and more speculative the inference of retroactivity becomes. (Brown, supra, 54 Cal.4th at p. 325 [“a statute increasing the rate at which prisoners may earn credits for good behavior does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent“].) We decline to extend the reach of our holding in Estrada to a statute so untethered from its logic.
The reasoning we applied in Estrada leads us to conclude that there are also practical reasons why it makes sense to distinguish between the retroactive effect of new legislation reducing the punishment prescribed by law and the retroactive effect of new legislation that makes the types of changes we see in section 1109. The Legislature, as the lawmaking body of the state (
But it is more difficult to draw such an inference when a statute makes the types of changes reflected in section 1109. While the Legislature may
It makes practical sense for courts to look to the Legislature to weigh the costs and benefits of retroactive versus only prospective application, and not to infer retroactive intent from legislative silence in these circumstances. That is because “we can[not] ... say with confidence, as we did in Estrada, that the enacting body lacked any discernible reason to limit application of the law with respect to cases pending on direct review.” (Conley, supra, 63 Cal.4th at pp. 658-659; see id. at p. 658 [declining to apply Estrada where “the enacting body creates a special mechanism for application of the new lesser punishment to persons who have previously been sentenced, and ... the body expressly makes retroactive application of the lesser punishment contingent on a court‘s evaluation of the defendant‘s dangerousness“].) Here, we cannot presume the Legislature‘s silence on section 1109‘s retroactivity equates with an intent to undo or jeopardize completed trials conducted under valid and constitutional laws (and where evidence supports guilt beyond a reasonable doubt).
Defendants contend that section 1109 is sufficiently similar to the statutes at issue in Lara and Frahs to bring it within the scope of Estrada. We disagree. It is true that the statutes we considered in Lara and Frahs had substantial procedural components. But the core of the changes made by those statutes was to allow for the possibility of channeling cases involving certain classes of offenders the Legislature identified as having diminished culpability — juvenile offenders (in Lara) and offenders with mental health disorders (in Frahs) — away from ordinary criminal proceedings, thereby
Section 1109, in contrast, does not reflect an intent to benefit defendants in the same way. It is by design and function a procedural change affecting the sequence of trial proceedings in situations where the defendant elects to invoke the statute. Unlike with the statutory changes at issue in Lara and Frahs, in enacting section 1109, the Legislature did not identify any class of defendants having a characteristic potentially demonstrating diminished culpability deserving of less punishment. Instead, section 1109 is designed to provide fairer proceedings for defendants subject to the same potential punishment. No ” ‘obvious’ and ‘inevitable’ inference” of retroactivity arises based on the statute‘s operation. (See dis. opn. of Evans, J., post, at p. 4.)
Defendants who elect a bifurcated trial will still be tried in a criminal court. They will face the same charges and the same potential sentences for those charges if convicted. And in some instances, the same gang evidence introduced to establish the elements of a gang enhancement might be admissible at a bifurcated trial on the underlying charge. (See Hernandez, supra, 33 Cal.4th at p. 1048 [“the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense“]; id. at pp. 1049-1050 [“To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled“]; see also People v. Chhoun (2021) 11 Cal.5th 1, 31 [“The People are generally entitled to introduce evidence of a defendant‘s gang affiliation and activity if it is relevant to the charged offense“]; Boukes, supra, 83 Cal.App.5th at p. 948, review granted [holding any error in lack of bifurcation was harmless beyond a reasonable doubt because evidence of defendant‘s gang affiliation “would have been admissible for reasons aside from any effort to prove the special circumstance and gang enhancement findings, for instance, defendant‘s motivation for the killing“].)
Under these circumstances, the rationale of Estrada does not apply; we cannot say it is “inevitable” that the Legislature would intend retroactive
Defendants also contend that even if the Legislature‘s stated objectives in passing Assembly Bill 333 do not provide a clear indication that the Legislature intended that the measure‘s bifurcation provisions would apply retroactively, they nonetheless demonstrate that section 1109 is an ameliorative statute within the meaning of Estrada. The Court of Appeal majority likewise relied on Assembly Bill 333‘s legislative findings in concluding that Estrada‘s inference of retroactivity applies. (Burgos, supra, 77 Cal.App.5th at pp. 566-567.)
This logic is unavailing. Again, we decline to extend the reach of Estrada‘s inference to statutes like section 1109 without a clearer indication of legislative intent to mitigate punishment. As noted, section 1109‘s provisions do not directly or potentially reduce the punishment for an offense, change the elements of a substantive offense, defense, or penalty, or create an alternative avenue for certain individuals to receive lesser or no punishment. The uncodified legislative findings concerned with bifurcation establish an intent to promote fairness and reduce the potential for prejudice in trial proceedings where a gang enhancement is alleged. But they do not reflect an intent to lessen punishment within the meaning of Estrada and its progeny. Thus, they are insufficient to rebut
intended it to have retroactive application. (Aetna, supra, 30 Cal.2d at p. 395.)8
In this respect, we also find it notable that defendants and the Court of Appeal majority focus primarily on the legislative findings accompanying Assembly Bill 333 rather than the text of section 1109 itself.9 Likewise, the dissent makes a single passing reference to section 1109‘s actual provisions, noting only
that it grants a criminal defendant charged with one or more gang enhancements ” ‘the right to have the question of guilt be tried in “separate phases.” ’ ” (Dis. opn. of Evans, J., at p. 1.) But this is the inverse of our usual Estrada inquiry. Estrada and its progeny focused on the substantive statutory provisions in determining whether they gave rise to an inference of retroactivity. Consistent with standard principles of statutory interpretation, our precedent instructs that we should focus on the statute itself before examining legislative findings or legislative history. (See, e.g., Frahs, supra, 9 Cal.5th at p. 635; Lara, supra, 4 Cal.5th at pp. 303, 309.) Indeed, in determining whether Assembly Bill 333‘s amendments to
We do not dispute that the changes implemented through section 1109 are designed to serve the salutatory goals of enhancing the overall fairness of criminal proceedings and reducing the potential for prejudice. (Stats. 2021, ch. 699, § 2, subds. (d)(6), (e) & (f).) Yet we have declined to infer retroactive intent under the principles of Estrada based solely on the presence of similar remedial purposes. In Brown, we rejected the argument that the Estrada inference extends “broadly to any statute that reduces punishment in any manner” (Brown, supra, 54 Cal.4th at p. 325), explaining that such a position “would expand the Estrada rule‘s scope of operation in precisely the manner we forbade in Evangelatos” (ibid.). In the earlier Evangelatos decision, we rejected the argument that a tort reform proposition‘s purpose, to rectify the “system of inequity and injustice” (
Our Courts of Appeal have expressed a similar understanding of Estrada‘s limited applicability in a variety of contexts. In Cervantes, for example, the Court of Appeal held that statutory amendments that expanded the circumstances in which custodial interrogations must be recorded applied only prospectively (Cervantes, supra, 55 Cal.App.5th at p. 941), notwithstanding the fact that the Legislature had declared in the enactment that recording
The dissent posits that ”
It is, of course, true that procedures designed to enhance the fairness and accuracy of particular proceedings might indirectly result in reduced punishment for individual offenders, insofar as the procedures might increase the chances of acquittal. But the question before us is whether section 1109 constitutes a change within the meaning and logic of Estrada, and we have not previously applied the Estrada inference so broadly. As the dissenting Court of Appeal justice aptly put it, “Although the Legislature expressly intended section 1109 to enhance the fairness of future proceedings, there is a
Defendants also assert that the retroactivity of Assembly Bill 333 should be considered as a whole. Because the legislative findings pertain to the entirety of the bill and it is undisputed that the amendments to
B. Prospective Application of Section 1109 Does Not Violate Equal Protection Principles
In the alternative, Burgos argues that prospective-only application of section 1109 would violate the equal protection clauses of the federal and state Constitutions (
“The equal protection clause of the
“The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue.” (Hardin, supra, 15 Cal.5th at p. 847.) “[W]hen a statute involves neither a suspect classification nor a fundamental right, the ‘general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’ ” (Ibid.) Burgos concedes that rational basis review applies.
We recently clarified that “when plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not.” (Hardin, supra, 15 Cal.5th at pp. 850-851.)
We have repeatedly rejected an equal protection argument based on the timing of a statute lessening punishment for a particular offense. (People v. Floyd (2003) 31 Cal.4th 179, 188-190; Baker v. Superior Court (1984) 35 Cal.3d 663, 668-669; accord, People v. Willis (1978) 84 Cal.App.3d 952, 956; People v. Superior Court (Gonzales) (1978) 78 Cal.App.3d 134, 142-143.) We have explained the basis for this holding as follows: ”Estrada itself recognized that when the Legislature has amended a statute to lessen the punishment, its determination as to which statute should apply to all convictions not yet final, ‘either way, would have been legal and constitutional.’ [Citations.] That the Legislature‘s choice, either way, would be constitutional is the foundation for our oft-repeated statement that, in this type of circumstance, the problem is one of trying to ascertain the legislative intent — ‘did the Legislature intend the old or new statute to apply?’ [Citations.] Defendant‘s equal protection argument presumes that the Estrada rule is constitutionally compelled. As we have stated repeatedly, it is not.” (Floyd, supra, 31 Cal.4th at pp. 188-189; see People v. Aranda (1965) 63 Cal.2d 518, 532 [“A refusal to apply a statute retroactively does not violate the
Accordingly, we hold that equal protection principles do not require section 1109 to be applied retroactively.
C. Burgos‘s Additional Arguments Exceed the Scope of Review
Burgos also contends that even if section 1109 applies prospectively only, the admission of gang evidence at his trial was unduly prejudicial and violated his due process rights. The Court of Appeal did not reach this and other claims brought by the defense in light of its holding that Assembly Bill 333 applies retroactively. (Burgos, supra, 77 Cal.App.5th at p. 564, fn. 4.)
We decline to address Burgos‘s claims of prejudice because they exceed the scope of our review. Our briefing order was limited to the question of whether “the provision of
III. DISPOSITION
We conclude that
We also disapprove People v. Montano, supra, 80 Cal.App.5th 82 and People v. Ramos, supra, 77 Cal.App.5th 1116, to the extent they are inconsistent with our opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
Concurring Opinion by Justice Groban
I agree with the majority opinion that the inference of retroactivity from In re Estrada (1965) 63 Cal.2d 740 does not extend to
Without a clear statement from the Legislature, we scour uncodified legislative findings, declarations of purpose, statements on the floor, and committee reports in an effort to decipher the Legislature‘s intent. This process is admittedly less precise than simply looking to a clear statement in the statute itself. Indeed, two of my distinguished colleagues here, analyzing exactly the same legislative materials relied on by the majority, have come to the opposite conclusion regarding retroactivity. (Dis. opn., post, at p. 1.) Going forward, the Legislature can remain silent regarding retroactivity and we will continue to use these less than perfect analytical tools to determine what we believe it meant. Or, instead, the Legislature can take a more preferable course and plainly state whether or not the statute in question is retroactive.
GROBAN, J.
I Concur:
CORRIGAN, J.
Dissenting Opinion
Whether ameliorative legislation, such as
As relevant here, section 1109 grants a criminal defendant who is charged with one or more gang enhancements (
Placing the choice whether to bifurcate proceedings involving a gang enhancement in the defendant‘s hands represented a sea change in how gang cases are tried. Previously, defendants had to rely entirely on the trial court‘s discretion to bifurcate trial of a gang enhancement from nongang offenses. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050.) In practice, that discretion was exercised only “rarely.” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 333 (2021-2022 Reg. Sess.) as amended May 28, 2021, p. 8.) Because of what was then regarded as the efficiencies of joinder, courts denied bifurcation even when admission of the gang evidence would have been excluded as “unduly prejudicial” in the trial on the nongang offenses. (Hernandez, at p. 1050; see Sen. Com. on Public Safety, Analysis of Assem. Bill No. 333, supra, as amended May 28, 2021, at p. 9.)
The legislative history of section 1109 explained the magnitude of the potential prejudice: evidence supporting a gang enhancement ” ‘may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant‘s actual guilt.’ ” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 333, supra, as amended May 28, 2021, p. 8, italics added.) The legislative history also noted the testimony of a San Joaquin County deputy district attorney and expert on gang prosecutions before the Committee on the Revision of the Penal Code, who ” ‘agreed that bifurcating evidence of gang involvement from evidence
This unfairness was of profound concern to the Legislature. In clear and forceful language, the Legislature found and declared that “[g]ang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people.” (Stats. 2021, ch. 699, § 2, subd. (d)(6), italics added.) It relied on studies showing that “allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions” and noted, as a result, that “[t]he mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.” (Id., § 2, subd. (e).) Citing the 2020 Annual Report of the Committee on Revision of the Penal Code, the Legislature found that this unfairness was borne disproportionately by “people of color, creating a racial disparity.” (Stats. 2021, ch. 699, § 2, subd. (d)(1).)
The disparity identified by the Legislature is substantial. Nearly 90 percent of individuals in the state‘s gang database are Black or Latino (Stats. 2021, ch. 699, § 2, subd. (d)(10)), and over 98 percent of people sentenced to prison for a gang enhancement in our state‘s largest county are people of color. (Id., subd. (d)(4).) The Legislature further found that “gang enhancement statutes criminalize entire neighborhoods historically impacted by poverty, racial inequality, and mass incarceration as they punish people based on their cultural identity, who they know, and where they live.” (Id., subd. (a).)
Like the Court of Appeal below, I believe the Legislature‘s concern about the conviction of innocent defendants indicates it wanted to extend the benefit of this ameliorative statute “to every case to which it constitutionally could apply.” (Estrada, supra, 63 Cal.2d at p. 745.) Legislatures as well as courts are aware that avoiding “the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system.” (Schlup v. Delo (1995) 513 U.S. 298, 325.) A legal maxim, well known to lawyers and nonlawyers alike, states “that it is better that ninety-nine . . . offenders should escape, than that one innocent man should be condemned.” (Ibid.) Against this shared background, the Legislature‘s explicit concern about preventing “wrongful convictions” of “innocent people” (Stats. 2021, ch. 699, § 2, subds. (e), (d)(6)), which it supported with empirical studies (id., subd. (e)), cannot reasonably be read as “equivocal.” (Maj. opn., ante, at p. 21.)
In short, section 1109 is an ameliorative statute that by design and function is aimed at preventing the conviction of innocent defendants. It is an
Consequently, this is yet another instance where the “logic” and “rationale” (maj. opn., ante, at pp. 12–13) of Estrada require a statute to be applied retroactively. As we have previously explained,
I.
The majority opinion evades this conclusion by disregarding the development of the Estrada doctrine over the past several decades and focusing instead only on the narrow question whether the statute here “mitigate[s] punishment.” (Maj. opn., ante, at p. 34.) While it is true that the particular statute in Estrada did act “to lessen the punishment” (Estrada, supra, 63 Cal.2d at p. 745), we have long since recognized that Estrada can apply to many other types of statutes, including those that “created an affirmative defense” (maj. opn., ante, at p. 10), “contracted a criminal offense” (ibid.), or granted courts “discretion to impose lesser punishment” (ibid., italics added). Our precedent likewise holds that a statute may be retroactive even when it is not restricted to “a particular crime” (id. at p. 11) and even though ”Estrada was not directly on point,” so long as ” ‘its rationale’ ” or ” ‘logic’ ” applies (id., at pp. 11, 16).
The foregoing amply demonstrates the folly of an unduly narrow focus on whether an ameliorative statute has a particular kind of effect on punishment. Consider People v. Brown (2012) 54 Cal.4th 314
A few years later, however, we reversed field and repudiated Brown‘s narrow reading of Estrada. We deemed it irrelevant that a new procedural provision prohibiting prosecutors from charging juveniles with crimes directly in adult court, and instead conditioning transfer to adult court on a fitness hearing in juvenile court, “did not ameliorate the punishment, or possible punishment, for a particular crime.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308, italics added (Lara).) Although the “effect” of the new rule was “different from the statutory changes in Estrada,” we reasoned that “the same inference of retroactivity should apply” because “[t]he possibility of being treated as a juvenile in juvenile court . . . can result in dramatically different and more lenient treatment.” (Lara, at pp. 308, 303.) Shortly after that, we applied the Estrada retroactivity exception to a new legislative scheme that, for most charged felonies, offered defendants the possibility of mental health diversion. (People v. Frahs (2020) 9 Cal.5th 618 (Frahs).) And in People v. Prudholme (2023) 14 Cal.5th 961 (Prudholme), we applied the Estrada retroactivity exception to a statute reducing the maximum allowable probation term for a wide range of offenses, despite the fact that the new statute was not limited to “any particular offense” (id. at p. 976) and did not even involve “punishment” but instead modified the terms of “an act of leniency” (id. at p. 968) — and despite the fact that Estrada was “not directly on point” (ibid.).
What mattered in Prudholme, as well as in these other cases, was not whether the particular statute made a “punishment-mitigating change[]” (maj. opn., ante, at p. 36) nor whether the statute happened to mirror statutes we had previously deemed to be retroactive under Estrada, but whether the “rationale of Estrada” applied. (Prudholme, supra, 14 Cal.5th at p. 968.) That rationale inquires whether the statute “by design and function provides a possible ameliorating benefit” (Frahs, supra, 9 Cal.5th at p. 624) as to punishment (see Estrada, supra, 63 Cal.2d at p. 745) or as to the issue of guilt or innocence (see People v. Wright (2006) 40 Cal.4th 81, 95 [newly enacted affirmative defense]) for an identifiable “class of persons” (Lara, supra, 4 Cal.5th at p. 308; Frahs, at p. 624). Where, as here, the Legislature enacts an ameliorative statute aimed
Even if the test for retroactivity were limited to whether the statute reflected an intent to lessen punishment, section 1109 certainly satisfies the test. The Legislature explicitly contemplated that bifurcating trial on a gang enhancement from trial on the underlying felony — like a statute narrowing the definition of a crime or recognizing a new affirmative defense — would significantly increase the possibility of acquittal and thereby ” ‘reduce the possibility of punishment.’ ” (Maj. opn., ante, at p. 35.) It is true that section 1109 is procedural, but (as the majority concedes (see maj. opn., ante, at p. 26)) so too were the statutes we considered in Lara and Frahs. (See also People v. Stamps (2020) 9 Cal.5th 685, 699 [statute “[e]liminating the prior restriction on the court‘s ability to strike a serious felony enhancement“]; People v. Francis (1969) 71 Cal.2d 66, 76 [statute “vest[ing] in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty“].) Section 1109, like these other procedural statutes, is retroactive because it reflects an intent to “ma[k]e a reduced punishment possible.” (Frahs, supra, 9 Cal.5th at p. 629.)
The majority opinion‘s occasional effort to broaden its characterization of Estrada‘s rationale — i.e., as applicable to “statutes that either reduce the punishment for a criminal offense or create discretion to reduce such punishment, or narrow the scope of criminal liability” (maj. opn., ante, at p. 16) — falls short of the mark. This characterization does not articulate an actual rationale; it merely describes the individual instances in which this court has previously found Estrada to apply.2 What‘s worse, this mechanical approach replicates Brown‘s improperly narrow reading of Estrada, which we shortly thereafter effectively repudiated in Lara, Frahs, and Prudholme. I fear this zigzag approach to applying Estrada will sow confusion in the law and exacerbate the uncertainty that has already led the lower courts time and again to arrive at conflicting decisions as to whether a given statute is retroactive. (Compare, e.g., People v. Burgos (2022) 77 Cal.App.5th 550, 565–567 with People v. Perez (2022) 78 Cal.App.5th 192, 207.) Yet we are not without the tools to solve the problem. The question for courts, properly understood, is whether a statute, by design and function, provides a clear and significant benefit to defendants as to punishment or on the question of guilt and innocence. Unlike the majority, I find it unimaginable the Legislature would have restricted its concern about convicting the innocent to only a subset of those it could constitutionally reach.
II.
The majority opinion seeks to downplay the Legislature‘s focus on preventing wrongful convictions of innocent people in two ways. First, it tries to divert attention away from the express legislative findings accompanying the enactment of section 1109. Second, it insists the Legislature could not have meant what it said about the risk of convicting innocent people when irrelevant gang evidence is included in a trial on the underlying substantive offense. Neither effort is persuasive.
A.
The majority opinion intimates there is something untoward about considering the explicit legislative findings included in the uncodified section of the bill that enacted section 1109. (See maj. opn., ante, at pp. 30–31.) Not so. As the majority opinion elsewhere concedes, the question of whether new legislation applies retroactively ” ’ “is one of trying to ascertain the legislative intent.” ’ ” (Id. at p. 38.) From the beginning we have instructed courts making that inquiry to consider “all pertinent factors” (Estrada, supra, 63 Cal.2d at p. 746), and we have reaffirmed that broad review continuously (see, e.g., Bouquet, supra, 16 Cal.3d at p. 587 [“Consistent with Estrada‘s mandate, we must address ‘all pertinent factors’ “]), including in our most recent retroactivity decisions (see, e.g., Prudholme, supra, 14 Cal.5th 961, 967 [quoting Estrada]). The majority opinion‘s contention that we have “disapproved” this practice (maj. opn., ante, at p. 14, fn. 3) is manifestly mistaken.
It is also beyond dispute that the Legislature‘s explicit findings are a valuable resource in ascertaining legislative intent. We regularly consult uncodified provisions, which are “part of the statutory law” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925), to ascertain “[t]he general intent” of legislation (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669) as well as its “express purpose and intended scope” ( People v. Valencia (2017) 3 Cal.5th 347, 362). (See generally People v. Allen (1999) 21 Cal.4th 846, 858, fn. 13 [uncodified sections “express the Legislature‘s view on some aspect of the operation or effect of the bill“].) Those findings, which are set forth above, evidence the Legislature‘s special concern about the risk of convicting innocent people.
B.
In fact, it‘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. Instances of convicting the innocent haunt our nation‘s history. (See, e.g., Stevenson, Just Mercy: A Story of Justice and Redemption (2014); The Central Park Five (Sundance Selects 2012).) It is therefore perplexing that the majority opinion describes the Legislature‘s findings on this fundamental point to be merely ” ’ “vague phrases” ’ ” and ” ’ “broad general language.” ’ ” (Maj. opn., ante, at p. 14, fn. 3.)
I view the findings differently. The Legislature stated clearly and specifically that lumping gang enhancement evidence with “evidence of the underlying charges . . . perpetuates unfair prejudice in juries and convictions of innocent people.” (Stats. 2021, ch. 699, § 2, subd. (d)(6).) The Legislature supported this finding with empirical studies showing that the jury‘s consideration of “the kind of evidence that supports a gang enhancement . . . may lead to wrongful convictions.” (Id., § 2, subd. (e).) Finally, the legislative history noted that the proposed remedy — section 1109 — would be effective. As noted above, a prosecution gang expert opined that ” ‘bifurcating evidence of gang involvement from evidence related to the underlying charges would reduce the risk of unfairly prejudicing juries and convicting innocent people.’ ” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 333, supra, as amended May 28, 2021, p. 10.)
To characterize the Legislature‘s conscious effort to remedy this type of injustice as merely a general desire “to promote fairness and reduce the potential for prejudice in trial proceedings” (maj. opn., ante, at p. 29) is not only a profound understatement but a category error. Section 1109 is not merely a “new procedure[] which could inure to a defendant‘s benefit.” (Maj. opn., ante, at p. 35.) Rather, it enables juries, at the defendant‘s option, to carefully and soberly assess the evidence regarding the charged offense without being distracted by the irrelevant and inflammatory suggestion the defendant is allegedly associated with a criminal street gang. 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” (Frahs, supra, 9 Cal.5th at p. 624) — and certainly not when the statute is aimed at preventing the conviction of an innocent defendant. Not even once.
The remaining cases on which the majority opinion relies — none of which was “designed to provide a clear and significant benefit to defendants” (People v. Cervantes (2020) 55 Cal.App.5th 927, 941) — are soundly distinguishable. Cervantes considered the retroactive effect of an amended statute requiring that custodial interrogations of murder suspects be recorded. (
Because the amendments were aimed at improving the justice system generally, they were not retroactive. (Cervantes, at p. 941; see also People v. Sandee (2017) 15 Cal.App.5th 294, 305 & fn. 7 [statute limiting governmental searches of cell phones, designed to protect Californians’ privacy, was not retroactive].)3 These examples of “new procedures which could inure to a defendant‘s benefit” (maj. opn., ante, at p. 35) or general improvements in “how criminal cases are investigated or tried” (id. at p. 13) shed little light on section 1109 and the stakes highlighted by the Legislature.
The majority opinion‘s hypothesized legislative justification for refusing to apply section 1109 retroactively likewise does not withstand scrutiny. The majority opinion suggests that the “systemic costs” of retroactive application could justify a decision not to apply the new bifurcation policy to defendants who have already been tried, noting these “completed trials” were “conducted under valid and constitutional laws (and where evidence supports guilt beyond a reasonable doubt).” (Maj. opn., ante, at pp. 25–26.) But this stated concern fails to distinguish the case before us from any of the other instances in which we have found Estrada to apply. Anytime the Legislature reduces
In this case, the Court of Appeal found it “likely” the jury improperly relied on evidence of Francisco Burgos‘s and his codefendants’ gang membership to establish their guilt of two counts of robbery, given that neither victim identified any of the defendants at trial. (People v. Burgos, supra, 77 Cal.App.5th at p. 569.) Denying Burgos, whose conviction is not yet final, the opportunity to demonstrate he would not have been convicted had the gang enhancement been bifurcated “can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance.” (Frahs, supra, 9 Cal.5th at p. 628ante, at pp. 38–39) — or even to provide for an alternate avenue of relief, and thereby rebut the inference of retroactive effect (see, e.g., Conley, supra, 63 Cal.4th at pp. 658–659) — the majority opinion cites no authority suggesting that “systemic costs” (maj. opn., ante, at p. 25) have ever led the Legislature to intend prospective-only application of an ameliorative statute that “by design and function” (Frahs, at p. 624) was aimed at preventing the wrongful conviction of innocent people. Given its express findings, there is no indication the Legislature had “a fear of too much justice,” which in this circumstance “would be repugnant to deeply rooted conceptions” against punishing the innocent. (McCleskey v. Kemp (1987) 481 U.S. 279, 339 (dis. opn. of Brennan, J.).)
III.
For all these reasons, I am unwilling to conclude the Legislature would have been so nonchalant about denying a remedy for innocent defendants who were convicted simply because the jury was allowed to consider evidence of their alleged association with gangs that was unrelated to the charged crimes a few days, weeks, or months before the effective date of section 1109. By finding otherwise, the court today seems to have lost sight of the fact that the general statutory presumption in
Unlike the majority opinion, I believe that a statute which, by design and function, provides a clear benefit to defendants on the question of guilt or innocence should apply in every case to which it constitutionally could apply — regardless of whether the statute might be characterized as more procedural than substantive. It seems rather unlikely the Legislature would have been more concerned about the elusive line between statutes that are procedural and those that are substantive than whether the previous statutory regime may have led to the conviction of innocent people whose judgments could still be corrected.
I therefore respectfully dissent.
EVANS, J.
I Concur:
LIU, J.
Notes
In contrast, the dissent relies on cases that have either been disapproved by our court as improperly expanding Estrada‘s reach or do not involve the interpretation of statutes at all. (See dis. opn. of Evans, J., post, at p. 1, citing In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587; dis. opn. of Evans, J., post, at p. 4, citing In re Johnson (1970) 3 Cal.3d 404, 413.) In Californians for Disability Rights v. Mervyn‘s, LLC (2006) 39 Cal.4th 223, 229–230, we explained that “at least in modern times, we have been cautious not to infer the voters’ or the Legislature‘s intent on the subject of prospective versus retrospective operation from ‘vague phrases’ [citation] and ‘broad, general language’ [citation] in statutes, initiative measures and ballot pamphlets. We have also disapproved statements to the contrary in certain older cases,” including Marriage of Bouquet. And Johnson addresses the standards for determining “[t]he retrospective effect of a law-making opinion” (Johnson, at p. 410, italics added), which are fundamentally different from determining the retroactive operation of a statute. (See, e.g., Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, 1057 [” ‘The general rule that judicial decisions are given retroactive effect is basic in our legal tradition’ “].) The statute at issue in People v. Robertson (1989) 48 Cal.3d 18, 51, did not implicate a defendant‘s guilt or innocence, and the statutory scheme in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 did not even implicate the criminal law at all. (Id. at p. 1210, fn. 15 [“the Estrada decision provides no guidance for the resolution of this case“].)