Resolving a split in Court of Appeal decisions, a 5-2 Supreme Court today holds in People v. Burgos that a statutory change providing for the delay of introducing gang evidence at trial doesn’t apply retroactively. It’s another case involving a part of 2021’s Assembly Bill 333, legislation that has taken up quite a bit of the court’s time.

Among other things, AB 333 added Penal Code section 1109 that requires gang offense charges to be tried separately and similarly allows, on a defendant’s request, the delay of the trial of gang enhancements. The court’s opinion by Chief Justice Patricia Guerrero follows the general rule that, unless the Legislature provides otherwise, statutes apply prospectively, and the opinion doesn’t invoke the corollary of In re Estrada (1965) 63 Cal.2d 740 that an amendment lessening punishment evinces a legislative intent for retroactivity. Unlike other parts of AB 333, the majority states, “the procedures established by section 1109 do not alter the criminality of defendant’s conduct or the severity of punishment,” and thus “the logic of Estrada does not apply.” It also rejects an equal protection challenge to that result.

Justice Kelli Evans writes a dissent, which Justice Goodwin Liu signs. Looking mostly to enacted, but uncodified, statements of legislative intent, Justice Evans contends “the Legislature intended this statute, which was explicitly intended to prevent the conviction of innocent defendants, to have retroactive effect.” She says the Legislature found that introducing evidence relevant to a gang enhancement before the jury has determined guilt or innocence can lead to wrongful convictions and that “this unfairness was borne disproportionately by ‘people of color, creating a racial disparity.’ ”

Justice Evans criticizes the majority for reading the Estrada doctrine too narrowly. She says the “ ‘rationale of Estrada’ ” requires determining “whether the statute ‘by design and function provides a possible ameliorating benefit’ [citation] as to punishment [citation] or as to the issue of guilt or innocence [citation] for an identifiable ‘class of persons’ [citations].” She asserts, “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’ [citation] — and certainly not when the statute is aimed at preventing the conviction of an innocent defendant. Not even once.”

Justice Joshua Groban, joined by Justice Carol Corrigan, signs the court’s opinion but issues a separate concurrence to emphasize that “[i]t would be preferable for ‘the Legislature, and the electorate with respect to ballot measures, to consider the retroactive application of new laws and to regularly express their intent regarding if and how they should be applied retroactively.’ ” (See: Scolding the Legislature for lack of clarity, Supreme Court rules statute can retroactively reduce probation without negating plea deal.) Because of the lack of such expressions, Justice Groban writes, “In the last 10 years alone, we have been compelled to make a retroactivity determination at least nine times, including the present case” and the Courts of Appeal have done so “well over a dozen [times] in just the last two years.”

The court reverses the Sixth District’s 2-1 published opinion. It also disapproves the Fifth District’s decisions in People v. Montano (2022) 80 Cal.App.5th 82 and People v. Ramos (2022) 77 Cal.App.5th 1116. Review was denied in both Montano and Ramos, but in those cases only the defendants sought review, probably of issues other than the one addressed in today’s opinion.

Some other AB 333 cases:

Supreme Court explains how to prove a gang enhancement

Application of legislation limiting what is a gang crime doesn’t violate state constitution

New legislation requires reversal of gang enhancement

Gang enhancement struck, but death penalty affirmed for torture-robbery-burglary murder