People v. Burgos

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO BURGOS et al.,

Defendants and Appellants.

S274743

Sixth Appellate District

H045212

Santa Clara County Superior Court

C1518795, C1756994

June 3, 2024

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

Opinion of the Court by Guerrero, C. J.

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 Penal Code section 186.22 by imposing new

substantive requirements relating to gang enhancements and

the criminal offense of gang participation.1 (Stats. 2021, ch. 699,

§ 4.) Assembly Bill 333 also added section 1109, which provides

that, if requested by the defense, a trial court must try a gang

enhancement charge separately from the underlying offense.

(§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.) The statute likewise

provides that gang-participation offenses must be tried

separately from all other counts that do not require gang

evidence as an element of the crime. (§ 1109, subd. (b); Stats.

2021, ch. 699, § 5.)

We granted review to determine whether section 1109’s

provisions governing bifurcation apply retroactively to cases in

which the judgment is not yet final. This question has divided

the Courts of Appeal. (Compare People v. Burgos (2022)

77 Cal.App.5th 550, 565–568 (Burgos) [concluding that § 1109

applies retroactively], People v. Montano (2022) 80 Cal.App.5th

82, 105–108 (Montano) [same], People v. Ramos (2022)

77 Cal.App.5th 1116, 1128–1131 (Ramos) [same] with People v.

1

All further statutory references are to the Penal Code

unless otherwise indicated.

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Opinion of the Court by Guerrero, C. J.

Boukes (2022) 83 Cal.App.5th 937, 946–949 [concluding § 1109

does not apply retroactively], review granted Dec. 14, 2022,

S277103 (Boukes), People v. Perez (2022) 78 Cal.App.5th 192,

207 [same], review granted Aug. 17, 2022, S275090 (Perez),

People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same], review

granted Oct. 12, 2022, S275341 (Ramirez).)

Ordinarily, statutes are presumed to apply only

prospectively, unless the Legislature expressly declares

otherwise. This well-settled principle is codified at section 3 of

the Penal Code and appears in other codes as well. (See, e.g.,

Code Civ. Proc., § 3; Civ. Code, § 3.) In In re Estrada (1965)

63 Cal.2d 740 (Estrada), however, we held that an amendment

to a statute that lessened punishment for a crime gave rise to

an inference of contrary legislative intent; that is, that the

Legislature must have intended that the amendment mitigating

punishment would apply retroactively to every case to which it

constitutionally could apply. (Id. at p. 745.)

We conclude that the Estrada inference of retroactivity

does not extend to section 1109. Estrada’s principle of statutory

interpretation infers retroactivity from statutory reductions in

punishment, not from the type of prophylactic rules of criminal

procedure embodied in section 1109’s bifurcation provisions.

Accordingly, the general presumption of prospective-only

application applies to section 1109. The equal protection clauses

of the federal and state Constitutions (U.S. Const., 14th Amend.;

Cal. Const., art. I, § 7, subd. (a)) do not compel a different result.

Because the Court of Appeal concluded that section 1109 applies

retroactively, we reverse its judgment.

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Opinion of the Court by Guerrero, C. J.

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. (§§ 211, 212.5, subd. (c).) Each count

also included gang enhancement and firearm enhancement

allegations. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b) &

(e)(1).) Burgos, Stevenson, and Richardson (collectively,

defendants) moved to bifurcate trial on the gang

enhancements.2 The trial court denied the requests. At trial,

the prosecution presented evidence that the robberies were

committed in association with a criminal street gang.

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 prior conviction

allegations as to Burgos and Stevenson, and Richardson

2

Lozano pleaded guilty prior to trial and Byrd was

acquitted at trial.

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Opinion of the Court by Guerrero, C. J.

admitted his prior conviction. The court sentenced each

defendant to 21 years of imprisonment.

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 section 186.22 by narrowing the

definitions of “ ‘criminal street gang,’ ” “common benefit,” and

“ ‘pattern of criminal gang activity,’ ” and adding the

requirement that gang members “collectively engage in” the

“pattern of criminal gang activity.” (§ 186.22, subds. (e)(1)–(2),

(f) & (g).) These changes “ha[d] the effect of ‘increas[ing] the

threshold for conviction of the section 186.22 offense and the

imposition of the enhancement.’ ” (Tran, at p. 1207.) Assembly

Bill 333 also “added section 1109, which requires, if requested

by the defendant, a gang enhancement charge to be tried

separately from all other counts that do not otherwise require

gang evidence as an element of the crime.” (Tran, at p. 1206.)

The Attorney General conceded that the amendments to

section 186.22 apply retroactively, and that the true findings on

defendants’ gang enhancement allegations must be vacated.

(Burgos, supra, 77 Cal.App.5th at p. 563; cf. Tran, supra,

13 Cal.5th at p. 1207 [Assembly Bill 333’s substantive changes

apply retroactively to all nonfinal cases under Estrada].)

However, the Attorney General maintained that section 1109’s

bifurcation provisions apply only prospectively. (Burgos, at

p. 564.)

A divided Court of Appeal held that section 1109 also

applies retroactively. (Burgos, supra, 77 Cal.App.5th at

pp. 564–569.) The majority concluded that the statute meets

the criteria for retroactive application under the reasoning of

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Opinion of the Court by Guerrero, C. J.

Estrada, supra, 63 Cal.2d 740, because it “reduces the possible

punishment for a class of persons [and] provides a possible

ameliorating benefit to a class of criminal defendants.” (Burgos,

at p. 565.)

We granted review, limited to the issue of whether section

1109’s bifurcation provisions apply retroactively to cases not yet

final.

II. DISCUSSION

Defendants contend that section 1109 applies

retroactively, not just prospectively. Burgos also claims that

applying section 1109 only prospectively would violate equal

protection principles. We find both arguments unconvincing.

A. Section 1109’s Bifurcation Provisions Do Not

Apply Retroactively

1. Language and Legislative History of Section 1109

Prior to the enactment of section 1109, trial courts were

authorized, in their discretion, to bifurcate trials so that a gang

enhancement allegation would be tried separately from a

charged offense, when appropriate to avoid undue prejudice to

the defense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049

(Hernandez).) This authority came from “ ‘section 1044, which

vests the trial court with broad discretion to control the conduct

of a criminal trial.’ ” (Id. at p. 1048; see § 1044 [“It shall be the

duty of the judge to control all proceedings during the trial”].)

Section 1109 now requires the trial court to bifurcate such trials

if the defense so requests.

Section 1109 provides in relevant part: “(a) If requested

by the defense, a case in which a gang enhancement is

charged . . . shall be tried in separate phases as follows: [¶]

(1) The question of the defendant’s guilt of the underlying

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offense shall be first determined. [¶] (2) If the defendant is

found guilty of the underlying offense and there is an allegation

of a[] [gang] enhancement . . . , there shall be further

proceedings to the trier of fact on the question of the truth of the

enhancement. . . . [¶] (b) If a defendant is charged with a

violation of subdivision (a) of Section 186.22, this count shall be

tried separately from all other counts that do not otherwise

require gang evidence as an element of the crime. This charge

may be tried in the same proceeding with an allegation of an

enhancement under subdivision (b) or (d) of Section 186.22.”

In enacting Assembly Bill 333, the Legislature made

several findings and declarations related to section 1109’s

bifurcation provisions. The Legislature 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).) The Legislature further declared that “[s]tudies 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” and “[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.,

subd. (e).) The Legislature resolved that “[b]ifurcation of trials

where gang evidence is alleged can help reduce its harmful and

prejudicial impact.” (Id., subd. (f).)

2. Section 3 and the Presumption of Prospective

Application

The question of whether a statute applies retroactively

begins with section 3 of the Penal Code. Enacted in 1872, this

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Opinion of the Court by Guerrero, C. J.

provision specifies that no part of the Penal Code “is retroactive,

unless expressly so declared.” (§ 3.)

“ ‘[T]he language of section 3 erects a strong presumption

of prospective operation, codifying the principle that, “in the

absence of an express retroactivity provision, a statute will not

be applied retroactively unless it is very clear from extrinsic

sources that the [lawmakers] . . . must have intended a

retroactive application.” [Citations.] Accordingly, “ ‘a statute

that is ambiguous with respect to retroactive application is

construed . . . to be unambiguously prospective.’ ” ’ ” (People v.

Buycks (2018) 5 Cal.5th 857, 880 (Buycks); see People v. Brown

(2012) 54 Cal.4th 314, 324 (Brown) [same]; People v. Floyd

(2003) 31 Cal.4th 179, 184 (Floyd) [§ 3 “embodies the general

rule of statutory construction that ‘when there is nothing to

indicate a contrary intent in a statute it will be presumed that

the Legislature intended the statute to operate prospectively

and not retroactively’ ”]; Tapia v. Superior Court (1991)

53 Cal.3d 282, 287 (Tapia) [“It is well settled that a new statute

is presumed to operate prospectively absent an express

declaration of retrospectivity or a clear indication that the

electorate, or the Legislature, intended otherwise”]; People v.

Hayes (1989) 49 Cal.3d 1260, 1274 (Hayes) [same]; cf.

Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207–1208

(Evangelatos) [“Like similar provisions found in many other

codes,” including Pen. Code, § 3, Civ. Code, § 3 “reflects the

common understanding that legislative provisions are

presumed to operate prospectively, and that they should be so

interpreted ‘unless express language or clear and unavoidable

implication negatives the presumption’ ”]; cf. Aetna Cas. &

Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393 (Aetna)

[“It is an established canon of interpretation that statutes are

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not to be given a retrospective operation unless it is clearly made

to appear that such was the legislative intent”].)

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 interpretation, and that it would

have expressly provided for retrospective operation of the

amendment if it had so intended”].)

3. The Estrada Exception to Prospective Application

of Statutes

Although section 3’s presumption of prospectivity

ordinarily applies if a statute does not contain an express

statement of retroactivity or otherwise clearly and unavoidably

indicate that the Legislature intended the statute to operate

retroactively, this court has recognized an additional, related

exception to this rule.

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

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Opinion of the Court by Guerrero, C. J.

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 section 3’s

general rule of prospectivity still applied to an amended statute

unless there were “other factors that indicate the Legislature

must have intended” that it would operate retroactively.

(Estrada, supra, 63 Cal.2d at p. 746.) Accordingly, Estrada

stands for the principle that, “ ‘where the amendatory statute

mitigates punishment and there is no saving clause, . . . the

amendment will operate retroactively so that the lighter

punishment is imposed.’ ” (People v. Nasalga (1996) 12 Cal.4th

784, 792 (plur. opn. of Werdegar, J.) (Nasalga), quoting Estrada,

at p. 748; cf. People v. Gentile (2020) 10 Cal.5th 830, 852 [under

Estrada, “Newly enacted legislation lessening criminal

punishment or reducing criminal liability presumptively applies

to all cases not yet final on appeal at the time of the legislation’s

effective date” unless it “sets out a specific mechanism as the

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exclusive avenue for retroactive relief”], superseded by statute

on another ground as stated in People v. Wilson (2023)

14 Cal.5th 839, 869; see also People v. DeHoyos (2018) 4 Cal.5th

594, 601–603 [holding that a statute reducing punishment did

not apply retroactively under Estrada because its resentencing

provisions sufficiently indicated a contrary intent]; People v.

Conley (2016) 63 Cal.4th 646, 657–658 (Conley) [same].)

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

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Opinion of the Court by Guerrero, C. J.

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 possibility of being treated as a juvenile in

juvenile court — where rehabilitation is the goal — rather than

being tried and sentenced as an adult can result in dramatically

different and more lenient treatment. Therefore, Proposition 57

reduces the possible punishment for a class of persons, namely

juveniles.” (Lara, at p. 303.) “For this reason,” we concluded,

“Estrada’s inference of retroactivity applies.” (Ibid.)

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[]” section 3’s default rule that

amendments to a statute apply prospectively. (Brown, supra,

54 Cal.4th at p. 324; see Evangelatos, supra, 44 Cal.3d at

pp. 1208–1209 [“California continues to adhere to the time-

honored principle . . . that in the absence of an express

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retroactivity provision, a statute will not be applied

retroactively unless it is very clear from extrinsic sources that

the Legislature or the voters must have intended a retroactive

application. The language in Estrada . . . should not be

interpreted as modifying this well-established, legislatively-

mandated principle”].) Rather, Estrada informs the application

of the default rule “in a specific context by articulating the

reasonable presumption that a legislative act mitigating the

punishment for a particular criminal offense is intended to

apply to all nonfinal judgments.” (Brown, at p. 324.)

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.)

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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 Estrada is specifically

directed to a statute that represents ‘ “a legislative mitigation of

the penalty for a particular crime” ’ [citation] because such a law

supports the inference that the Legislature would prefer to

impose the new, shorter penalty rather than to ‘ “satisfy a desire

for vengeance” ’ [citation]. The same logic does not inform our

understanding of a law that rewards good behavior in prison.”

(Brown, supra, 54 Cal.4th at p. 325.) We rejected the argument

that Estrada should be understood to apply more broadly to any

statute that reduces punishment in any manner, explaining

that this contention “would expand the Estrada rule’s scope of

operation in precisely the manner we forbade” in our prior

decisions, and “does not in any event represent a logical

extension of Estrada’s reasoning.” (Brown, at p. 325.)

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,

3

The dissenting opinion attempts to downplay the

significance of our decision in Brown, asserting that we

“reversed field and repudiated Brown’s narrow reading of

Estrada” a few years later. (Dis. opn. of Evans, J., post, at p. 6;

see id. at pp. 8–9.) Rather than renouncing it, this court has

continued to cite Brown with approval in discussing principles

of retroactivity. (See, e.g., People v. Esquivel (2021) 11 Cal.5th

671, 676 [including Brown in summary of this court’s relevant

precedent evaluating whether specific legislation ameliorates

punishment]; Buycks, supra, 5 Cal.5th at p. 880 [reaffirming

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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), we held that a newly enacted death penalty law

prohibiting the consideration of nonstatutory factors in

aggravation, which the former death penalty law allowed, did

not apply retroactively under Estrada. We reasoned that the

law “had no bearing on the criminality of defendant’s conduct or

Brown’s holding]; People v. Hajek and Vo (2014) 58 Cal.4th

1144, 1195–1196 [same]; Lara, supra, 4 Cal.5th at p. 312

[agreeing that conduct credits at issue in Brown were “not

‘analogous’ to the Estrada situation, and Estrada’s logic d[id]

not apply” to them].)

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” ’ ”].)

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the severity of punishment therefor; hence the statute in effect

at the time of the offenses governs” the penalty phase retrial.

(Ibid.)

In People v. Cervantes (2020) 55 Cal.App.5th 927

(Cervantes), the Court of Appeal held that legislative

amendments to section 859.5, which expanded the requirement

of recorded custodial interrogations to all persons suspected of

committing murder, did not come within Estrada’s limited

exception to section 3’s general rule of prospective application

because the amendments did not alter or reduce criminal

punishment or treatment for past criminal conduct. (Cervantes,

at p. 940.) The Cervantes court further held that the logic of

Estrada did not apply because the legislative findings

accompanying section 859.5’s amendments indicated the

changes “were not designed to provide a clear and significant

benefit to defendants; they were designed to reduce biased

interpretation of, and ensure the accuracy of the evidence of, the

communication that occurs in an interrogation.” (Cervantes, at

p. 941.)

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 (§ 1546 et seq.), which

limited a government entity’s access to electronic device

information, applied retroactively under Estrada. (Sandee, at

p. 305, fn. 7.) The court determined that “[t]he retroactivity

principle discussed in Estrada is not applicable here because the

[statute] does not have the effect of lessening the punishment

for a crime.” (Ibid.)

In sum, we have adhered to section 3’s default rule of

prospective operation in a variety of contexts and have applied

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Estrada’s limited inference of retroactivity only to statutes that

“are analogous to the Estrada situation” and by their nature

implicate “Estrada’s logic” (Lara, supra, 4 Cal.5th at p. 312,

some italics omitted); that is, statutes that either reduce the

punishment for a criminal offense or create discretion to reduce

such punishment, or narrow the scope of criminal liability,

because such enactments give rise to an “inevitable inference

that the Legislature [or electorate] 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” (Estrada, supra, 63 Cal.2d at p. 745).

4. Conflicting Court of Appeal Decisions

As noted, the question of section 1109’s retroactivity has

divided the Courts of Appeal.

In this case, the Court of Appeal majority concluded that

section 1109’s bifurcation provisions apply retroactively under

Estrada and its progeny. (Burgos, supra, 77 Cal.App.5th at

pp. 564–569.) The majority reasoned that section 1109 applies

“to a distinct class of defendants — those charged with gang

enhancements” (Burgos, at p. 565), and “the legislative findings

in Assembly Bill 333 also show the Legislature intended to

reduce punishment specifically for people of color — who

overwhelmingly comprise the class of defendants charged with

gang enhancements” (id. at p. 566). Because the legislative

findings “repeatedly cite the disparate levels of punishment

suffered by people of color under the old law,” the majority

reasoned, section 1109 cannot be considered only “as a

‘prophylactic rule of criminal procedure’ designed to enhance the

fairness of proceedings.” (Burgos, at p. 566.) The majority

highlighted two ameliorative effects of the bifurcation

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provisions: the “increased possibility of acquittal — which

necessarily reduces possible punishment,” and the reduction of

“pressure to accept longer sentences” through unfavorable plea

deals, which “will necessarily reduce the degree of punishment

for many defendants.” (Id. at p. 567.)

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 section

186.22, which apply retroactively under Estrada, “[i]t would be

especially incongruous for the Legislature to make one isolated

section of a bill prospective-only without stating so expressly,

expecting instead that a court would somehow discern this

anomaly.” (Burgos, at pp. 567–568.)

The dissenting justice below disagreed. In his view,

“section 1109 is not an ameliorative statute within the meaning

of the Estrada rule, and therefore it is subject to the general rule

that Penal Code provisions are presumed to be prospective-

only.” (Burgos, supra, 77 Cal.App.5th at p. 569 (dis. opn. of Elia,

J.).) The dissent reasoned that our prior applications of Estrada

involved statutes that “were facially ‘ameliorative’ because they

either reduced the punishment or created discretion to reduce

the punishment for a criminal offense, or narrowed the scope of

criminal liability.” (Burgos, at p. 571 (dis. opn. of Elia, J.).)

Section 1109, by contrast, is “a prophylactic rule of criminal

procedure expressly intended to employ new procedures aimed

at enhancing the fairness of future criminal proceedings. It

makes no change to any crime or defense and makes no change

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to any punishment provision, and it does not create the

possibility of lesser punishment or any other ‘ameliorative’

benefit from which it could be inferred that failing to extend that

benefit retroactively must have been motivated by a ‘desire for

vengeance.’ ” (Burgos, at p. 572 (dis. opn. of Elia, J.).) Because

section 1109 “makes a ‘purely procedural’ change to a trial

procedure that will not have any impact ‘directly’ or indirectly

on punishment,” the dissent reasoned, the general presumption

of prospectivity applies. (Burgos, at p. 572 (dis. opn. of Elia, J.).)

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

section 1109 is ameliorative within the meaning of Estrada.

(Montano, at pp. 105–106.) The Montano court also determined

that section 1109 was sufficiently similar to the statutes in Lara

and Frahs to bring it within the scope of Estrada’s inference of

retroactivity. (Montano, at pp. 106–108.) The Ramos court

likewise determined that Assembly Bill 333’s findings and

declarations that the Legislature intended “to benefit a certain

class of criminal defendants by reducing the potentially harmful

and prejudicial impact of gang evidence through bifurcation of

gang allegations” invoked “the logic of Estrada.” (Ramos, at

p. 1131.)

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 section 1109 because section 1109

‘is not an ameliorative statute within the meaning of the

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Estrada rule.’ ” (Ramirez, at p. 65, quoting Burgos, supra,

77 Cal.App.5th at p. 569 (dis. opn. of Elia, J.).) Likewise, in

Perez, the Court of Appeal held that because section 1109 is a

procedural statute that ensures a jury will not be prejudiced by

gang-related evidence, and not one that reduces the punishment

imposed or reduces the scope of application of the gang statute,

it does not give rise to an inference of retroactivity under

Estrada. (Perez, at p. 207.) The Perez court contrasted “the new

law in Lara, which was a new procedural law that had the effect

of potentially reducing the punishment for a class of

defendants,” with bifurcation under section 1109, which

“ensures a jury will not be prejudiced by the introduction of

evidence to support gang enhancement allegations.” (Perez, at

p. 207.) The Boukes court agreed, concluding that section 1109

does not apply retroactively because it does not reduce

punishment imposed on gang enhancements. (Boukes, at

p. 948.)

With this background in mind, we turn to the question of

whether section 1109’s bifurcation provisions apply

retroactively.

5. Discussion

Before we address whether section 1109’s provisions

provide the sort of relief contemplated in Estrada such that an

inference of retroactivity arises, we resolve the threshold

question of whether the statute expressly or impliedly addresses

retroactive application. As noted, if the statute expressly states

that it is retroactive or otherwise clearly and unavoidably

indicates that the Legislature intended retroactive operation,

that determination governs, regardless of whether section 1109

lessens punishment within the meaning of Estrada.

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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

4

For example, the legislative findings accompanying

Assembly Bill 333 state that “[c]urrent 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” (Stats. 2021, ch. 699, § 2, subd. (a)), “[n]o

empirical studies have produced evidence showing that gang

enhancements meaningfully reduce crime or violence” (id., subd.

(c)), and “[t]he gang enhancement statute is applied

inconsistently against people of color, creating a racial

disparity” (id., subd. (d)(1)).

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Opinion of the Court by Guerrero, C. J.

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

necessary in Tran to resort to the secondary question of whether

the amendments to section 186.22 apply retroactively under

Estrada. (Tran, supra, 13 Cal.5th at pp. 1206–1207.)

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

5

We disagree with the dissent’s characterization of the

legislative findings pertaining to section 1109 as “clear and

forceful” (dis. opn. of Evans, J., post, at p. 2) on the relevant

issue before us — i.e., whether the limited bifurcation provisions

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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 section 3’s presumption that section 1109 operates

prospectively unless the statute “lessen[s] . . . punishment”

apply retroactively to nonfinal judgments. We of course 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’ ” (dis. opn. of Evans, J., post, at p. 4,

citing Schlup v. Delo (1995) 513 U.S. 298, 325), and we are

cognizant that the Legislature identified racial disparities in the

use of gang enhancements (dis. opn. of Evans, J., post, at p. 3).

But we also note that strongly worded legislative findings

relating to racial bias and unfairness in the criminal justice

system do not necessarily convey that the Legislature intended

for section 1109 — which concerns the order of presentation of

evidence at trial, not the substantive scope of the gang

enhancements — to apply retroactively to cases that have

already been tried. (Compare Stats. 2020, ch. 317, § 2, subds.

(a)–(j) with Pen. Code, former § 745, subd. (j) [“This section

applies only prospectively in cases in which judgment has not

been entered prior to January 1, 2021”].)

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within the meaning of Estrada.6 (Estrada, supra, 63 Cal.2d at

p. 745.) We conclude that it does not.

As noted, section 1109 requires the trial court to try an

underlying offense separately from a gang enhancement if

requested by the defense, and it mandates that a substantive

gang offense be tried separately from nongang-related offenses.

By its terms, section 1109 does not directly or potentially reduce

the punishment for an offense. Nor does it change the elements

of a substantive offense, defense, or penalty enhancement.

Likewise, it does not create an alternative avenue for certain

individuals to receive lesser or no punishment. Instead, section

1109 reflects a prophylactic procedural rule that modifies the

sequence of trial proceedings. In an effort to minimize the

potentially prejudicial impact of gang evidence, it gives

defendants the option to request bifurcation at trial of the gang

enhancement allegations charged under section 186.22,

subdivision (b) and the other charged offenses.

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

6

Stevenson incorrectly suggests that the Legislature’s

failure to include an express provision regarding the prospective

application of Assembly Bill 333 supports a finding that the

Legislature intended the statute to apply retroactively. As

stated above, if a statute is silent as to retroactivity, it is

generally presumed to apply prospectively. (§ 3; Brown, supra,

54 Cal.4th at p. 320; Evangelatos, supra, 44 Cal.3d at p. 1209

[under “the general principle of prospectivity, the absence of any

express provision directing retroactive application strongly

supports prospective operation of the measure”].)

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Opinion of the Court by Guerrero, C. J.

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 (Cal. Const., art. IV, § 1), is accorded considerable

deference in deciding how to set the penalties for particular

offenses. (E.g., People v. Wilkinson (2004) 33 Cal.4th 821, 840–

841.) When the Legislature determines that one of its

enactments operates too harshly, we presume that it wants its

reevaluation, as embodied in a new law, to apply as broadly as

possible within the limits of finality. (Estrada, supra, 63 Cal.2d

at p. 745.)

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 determine that certain additional

procedures are warranted to enhance the fairness of criminal

proceedings, as it did in enacting section 1109, the Legislature

might decide to adopt a rule of prospective application for such

changes for reasons other than “a desire for vengeance.”

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Opinion of the Court by Guerrero, C. J.

(Estrada, supra, 63 Cal.2d at p. 745.) Some changes adopted by

the Legislature might enhance the fundamental fairness

already guaranteed by the Constitution and by existing

statutory protections. But applying these changes retroactively

to already-concluded proceedings will inevitably come with

systemic costs (which may affect the resources available to

ensure the timely and effective administration of justice in other

cases). Thus, even if the Legislature decides it makes good

policy sense to provide a defendant with a right to bifurcation as

specified in section 1109 on a going forward basis, it could also

reasonably intend, for reasons other than “vengeance” (Estrada,

at p. 745), that the change in the law should not apply to

defendants who have already been tried. (Cf. Jenkins v.

Delaware (1969) 395 U.S. 213, 218 [potential incongruities

“inherent in prospective decision making, i.e., some defendants

benefit from the new rule while others do not,” “must be

balanced against the impetus the technique provides for the

implementation of long overdue reforms, which otherwise could

not be practicably effected” (italics omitted)].)

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

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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

reducing those offenders’ exposure to the punishment otherwise

prescribed under applicable criminal law. (Lara, supra,

4 Cal.5th at p. 303; Frahs, supra, 9 Cal.5th at p. 624.) The crux

of the statutes at issue in Lara and Frahs, and what mattered

for purposes of our analysis, was the path to reduced

punishment based on a legislative judgment that the

punishments prescribed by law for certain offenses are

frequently inappropriate for certain classes of persons who bear

reduced culpability for their crimes. (Frahs, at p. 624 [“The

statute here is similar to the scheme we considered in Lara, in

that section 1001.36 by design and function provides a possible

ameliorating benefit for a class of persons . . . by offering an

opportunity for diversion and ultimately the dismissal of

charges”].)

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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

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Opinion of the Court by Guerrero, C. J.

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 application of the bifurcation

provisions without expressly so declaring. (Estrada, supra,

63 Cal.2d at p. 745.) Neither Frahs nor Lara goes so far as

defendants here propose. New bifurcation procedures that may,

in some instances, be beneficial to a criminal defendant in that

they conceivably could result in the exclusion of gang-related

evidence during the trial of charged offenses are not the

equivalent of a change in the legislated punishment that must

be applied to all nonfinal cases on appeal. 7 (Estrada, at p. 745;

Brown, supra, 54 Cal.4th at p. 325, fn. 15 [legislative intent to

equalize custody conduct credits, which served to reduce

punishment by decreasing days in custody, “does not, by itself,

provide a logical basis for inferring the Legislature wished to do

so retroactively”].) We decline to apply Estrada’s inference of

retroactivity when, as here, there is no alteration to criminality

or the legislated punishment.

7

In Assembly Bill 333’s findings and declarations, the

Legislature cited a decision by this court in which we recognized

that gang evidence may in some instances be prejudicial (Stats.

2021, ch. 699, § 2, subd. (e), citing People v. Williams (1997)

16 Cal.4th 153, 193). But in that case we actually upheld the

trial court’s denial of the defendant’s motion to exclude gang

evidence because the evidence was relevant to motive and

identity and its probative value outweighed its prejudicial effect

(Williams, at p. 193).

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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 section 3’s “strong

presumption of prospective operation.” (Brown, supra,

54 Cal.4th at p. 324.) “[T]he mere fact that the statute is

remedial and subject to the rule of liberal construction” cannot,

without more, give rise to the implication that the Legislature

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Opinion of the Court by Guerrero, C. J.

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

8

The dissent emphasizes that the Legislature intended to

prevent the conviction of “innocent” defendants serving

“wrongful convictions.” (Dis. opn. of Evans, J., post, at pp. 1–4,

9–12, 14–16.) We acknowledge the important remedial

purposes of the changes enacted by the Legislature, but we

decline to infer retroactivity based on such “broad, general

language in statutes.” (Brown, supra, 54 Cal.4th at p. 319.) The

Legislature chose to adopt optional bifurcation procedures that

operate in a limited manner; as noted, gang evidence may still

be admissible where relevant to the underlying charges. A

voluntary procedure which may (or may not) alter when gang

evidence is admitted at trial is not the type of ameliorative

reduction in punishment that gives rise to Estrada’s inference

of retroactivity.

9

In evaluating whether section 1109 applies retroactively

under Estrada, the Court of Appeal addressed the statutory

language only in passing, observing simply that it applies to a

distinct class of defendants (those charged with gang

enhancements or active participation in a street gang). (Burgos,

supra, 77 Cal.App.5th at p. 565.) That section 1109 applies to a

class of persons is of minimal significance in determining

whether it applies retroactively under Estrada, since it is

axiomatic that an amendatory act will affect a class of persons.

Although we took note of the fact that the stated purposes of the

enactments in Lara and Frahs were to address specific classes

of individuals, we did so in the context of identifying the

Legislature’s desire to reduce their reentry into the criminal

system. (See Lara, supra, 4 Cal.5th at p. 309; Frahs, supra,

9 Cal.5th at p. 626.)

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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 section 186.22

applied retroactively under Estrada, we relied on section

186.22’s substantive changes to the elements of the gang

enhancement rather than the accompanying legislative findings

and statements of purpose, concluding that section 186.22

applied retroactively because it increased the threshold for

conviction of the gang offense and imposition of the gang

enhancement. (Tran, supra, 13 Cal.5th at pp. 1206–1207.)

Although legislative findings may be a useful aid in confirming

whether we should presume retroactive intent based on the

ameliorative nature of a statute, we are disinclined to bypass

section 1109’s substantive provisions, which do not actually

operate to mitigate punishment, and rely on legislative findings

relating to potential prejudice in determining whether Estrada’s

inference of retroactivity applies.

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

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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” (Civ. Code, § 1431.1, subd. (a)), demonstrated that

the electorate intended for it to apply retroactively.

(Evangelatos, supra, 44 Cal.3d at p. 1213.) We explained:

“Although the ‘findings and declaration of purpose’ included in

the proposition clearly indicate that the measure was proposed

to remedy the perceived inequities resulting under the

preexisting joint and several liability doctrine and to create

what the proponents considered a fairer system under which

‘defendants in tort actions shall be held financially liable in

closer proportion to their degree of fault’ [citation], such a

remedial purpose does not necessarily indicate an intent to

apply the statute retroactively. Most statutory changes are, of

course, intended to improve a preexisting situation and to bring

about a fairer state of affairs, and if such an objective were itself

sufficient to demonstrate a clear legislative intent to apply a

statute retroactively, almost all statutory provisions and

initiative measures would apply retroactively rather than

prospectively. In light of the general principles of statutory

interpretation set out above, and particularly the provisions of

Civil Code section 3 [articulating the general rule of prospective

application], the contention is clearly flawed.” (Ibid.) These

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same principles apply here and support the prospective

application of section 1109’s bifurcation procedures. 10

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 interrogations during police

questioning of suspects “decreases wrongful convictions based

on false confessions and enhances public confidence in the

criminal justice process” (Stats. 2016, ch. 791, § 1, subd. (b)).

(See id., subd. (a)(2) [citing national study finding that false

confessions extracted during police questioning of suspects have

been identified as a leading cause of wrongful convictions].) And

in Sandee, the Court of Appeal held that the Electronic

Communications Privacy Act did not apply retroactively under

Estrada notwithstanding the likelihood that the act’s increased

restrictions on law enforcement access to electronic devices

would benefit defendants, because the law did not have the

effect of lessening the punishment for a crime. (Sandee, supra,

15 Cal.App.5th at p. 305, fn. 7.) The objective of the statutes at

issue in these decisions, like section 1109, is to enhance the

10

The dissent points out that “the statutory scheme in

Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 did not

even implicate the criminal law.” (Dis. opn. of Evans, J., post,

at p. 13, fn. 5.) But both Civil Code section 3 and Penal Code

section 3 contain a default presumption in favor of prospective

application.

33

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

fairness of a criminal proceeding. But they do not implicate the

logic of Estrada.

The dissent posits that “section 3’s presumption of

prospective effect does not apply to ‘new provisions’ — like the

one here — ‘which clearly benefit only defendants.’ ” (Dis. opn.

of Evans, J., post, at p. 5, citing Tapia, supra, 53 Cal.3d at

p. 300.) Neither the text of section 3 nor our cases support this

proposition. Our cases have instead made clear that the

presumption applies except to changes that mitigate

punishment. The statutory provisions at issue in Tapia applied

retroactively because they benefitted defendants in the specific

manner contemplated by Estrada and its progeny. (See Tran,

supra, 13 Cal.5th at p. 1207, quoting Tapia, at p. 301 [“Estrada

applies to statutory amendments ‘which redefine, to the benefit

of defendants, conduct subject to criminal sanctions’ ” (italics

added)].) Specifically, the statutory provisions found to operate

retroactively in Tapia “provide[] that the killing of a prosecutor

or judge, to constitute a special circumstance, must be

intentional” and “also provide[] that an accomplice, for a non-

felony-murder special circumstance to be found true, must have

had the intent to kill.” (Tapia, at p. 301.) Section 1109, by

contrast, does not create an affirmative defense, contract a

criminal offense, or otherwise lessen punishment by redefining

the law’s treatment of a defendant’s conduct. There is no basis

in our case law for inferring that the Legislature intended a rule

about the conduct of trials to apply retroactively to cases that

have already been tried, absent a clear indication to that effect.

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

34

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

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 manifest

distinction between the Legislature’s creation of new criminal

procedures designed to enhance fairness and its enactment of

provisions that reduce the possibility of punishment. The

underlying rationale for the Estrada rule is to avoid the

inference that the Legislature was bent on vengeance. No such

inference arises from the nonretroactivity of section 1109’s

provisions. Instead, the Legislature has clearly decided that

these new procedures offer a better way to avoid the risk of

undue prejudice than the previous procedures of discretionary

bifurcation coupled with restrictive jury instructions.” (Burgos,

supra, 77 Cal.App.5th at pp. 573–574 (dis. opn. of Elia, J.).) To

hold that any new procedures which could inure to a defendant’s

benefit come within the Estrada exception to section 3’s default

rule on that basis alone is not a “logical extension of Estrada’s

reasoning” and would represent a significant expansion of

Estrada’s scope of operation “in precisely the manner we

[previously] forbade.” (Brown, supra, 54 Cal.4th at p. 325.)

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 section 186.22 have retroactive

application, defendants argue, section 1109’s provisions should

also apply retroactively. But most of the findings relate to the

former gang enhancement provisions, not discretionary

bifurcation. Moreover, we do not examine retroactivity at the

35

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

level of the entire enactment. We focus on the nature of each

provision rather than its company. (E.g., Tapia, supra,

53 Cal.3d at pp. 286, 289, 301; Francis, supra, 71 Cal.2d at p. 78

[rejecting argument that legislative intent applicable to

chaptered laws “is ‘presumptively the same’ ”; to the contrary,

“the Legislature manifestly could have different intents with

respect to different sections contained in one chapter”]; Burgos,

supra, 77 Cal.App.5th at p. 573 (dis. opn. of Elia, J.) [“Many

legislative bills amend numerous (sometimes hundreds of)

statutes, and whether a specific amendatory statute is subject

to the Estrada rule depends on the nature of the amendment,

not the mere fact that the amendment was enacted in the

company of other amendments in a single legislative bill”].) The

mere placement of multiple provisions in a single bill does not

provide a “clear and compelling implication” that the

Legislature intended all would have retroactive application.

(Hayes, supra, 49 Cal.3d at p. 1274.) Accordingly, in the face of

the Legislature’s silence regarding Assembly Bill 333’s

application, we conclude that Estrada’s inference of

retroactivity applies to the punishment-mitigating changes to

section 186.22, but not provisions governing the conduct of trial

in section 1109. (See Brown, supra, 54 Cal.4th at p. 322 [when

statutory language does not clearly support interpretation of

retroactive application, courts must “resolve such ambiguities in

favor of prospective operation,” which “is precisely the function

of section 3 and the default rule it embodies”].)

In sum, we see no justification in Estrada and its progeny

for applying the Estrada inference of retroactivity to section

1109. We therefore turn to Burgos’s alternative claim that equal

protection principles require the statute to be applied

retroactively.

36

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

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 (U.S. Const., 14th

Amend.; Cal. Const., art. I, § 7, subd. (a)). He contends there is

no rational basis to distinguish between two classes of

individuals charged with gang enhancements, those convicted

before the effective date of section 1109, whose judgments are

not yet final, and those convicted after section 1109’s enactment.

We disagree.

“The equal protection clause of the Fourteenth

Amendment to the United States Constitution provides that no

state may ‘deny to any person within its jurisdiction the equal

protection of the laws.’ [Citation.] This provision is ‘essentially

a direction that all persons similarly situated should be treated

alike.’ [Citation.] ‘At core, the requirement of equal protection

ensures that the government does not treat a group of people

unequally without some justification.’ ” (People v. Hardin (2024)

15 Cal.5th 834, 847, fn. omitted (Hardin).)

“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

37

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

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. (Floyd, supra, 31 Cal.4th at pp. 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 Fourteenth Amendment”],

superseded by statute as stated in People v. Capistrano (2014)

59 Cal.4th 830, 868.) Burgos offers no persuasive reason to

38

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

refrain from applying our prior precedent to an amended statute

that is not ameliorative under Estrada.11

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 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 Penal Code

section 1109 governing the bifurcation at trial of gang

enhancements from the substantive offense or offenses appl[ies]

retroactively to cases that are not yet final.” Having answered

this question in the negative, we remand the matter to the Court

of Appeal to resolve any remaining claims in the first instance.

11

In Hardin, we explained that our rejection of the two-step

framework for determining equal protection challenges did not

“call into question any of this court’s precedent that purported

to dispose of an equal protection challenge upon deciding that

the challenged disparate treatment did not involve groups that

were similarly situated for purposes of the law in question.”

(Hardin, supra, 15 Cal.5th at p. 851.) Thus, Hardin does not

call into question any of our prior precedent rejecting an equal

protection argument based on the timing of a statute lessening

punishment for a particular offense, even assuming such

precedent might be said to have been premised on an application

of the two-step framework.

39

PEOPLE v. BURGOS

Opinion of the Court by Guerrero, C. J.

III. DISPOSITION

We conclude that section 1109 does not apply

retroactively. Because the Court of Appeal majority concluded

otherwise, we reverse its judgment and remand the matter for

further proceedings consistent with our opinion.

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.

40

PEOPLE v. BURGOS

S274743

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 Penal Code section 1109. (Maj. opn., ante, at p. 2.)

However, I write separately to emphasize a point we have made

before: It 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.” (People v. Prudholme (2023) 14 Cal.5th 961,

980.) Instead, without an express statement from the

Legislature, we are left to attempt to glean what we think the

Legislature intended. In the last 10 years alone, we have been

compelled to make a retroactivity determination at least nine

times, including the present case. None of the new laws at issue

in these cases contained an express statement regarding

retroactivity.1

1

See People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

(amendments to Pen. Code, § 186.22 apply retroactively to

nonfinal cases); Prudholme, supra, 14 Cal.5th at page 963

(Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill

1950) applies retroactively to nonfinal cases); People v. Stamps

(2020) 9 Cal.5th 685, 699 (Senate Bill No. 1393 (2017–2018 Reg.

Sess.) applies retroactively to nonfinal cases); People v. Frahs

(2020) 9 Cal.5th 618, 624, 628–637 (Pen. Code, § 1001.36 applies

1

PEOPLE v. BURGOS

Groban, J., concurring

Our Courts of Appeal have been compelled to make this

determination with even greater regularity. There have been

well over a dozen published Court of Appeal cases in just the last

two years that have addressed the retroactivity of new laws

where no express statement regarding retroactivity was

provided by the Legislature.2

retroactively to nonfinal cases); People v. Superior Court

(Lara) (2018) 4 Cal.5th 299, 304 (Proposition 57 (approved Nov.

8, 2016) applies retroactively to nonfinal cases); People v.

Gentile (2020) 10 Cal.5th 830, 852 (Senate Bill No. 1437 (2017–

2018 Reg. Sess.) does not apply retroactively to nonfinal cases

on direct appeal); People v. DeHoyos (2018) 4 Cal.5th 594, 602–

603 (Proposition 47 (approved Nov. 4, 2014) does not apply

retroactively to nonfinal cases on direct appeal); People v. Conley

(2016) 63 Cal.4th 646, 657 (Proposition 36 (approved Nov. 6,

2012) does not apply retroactively to nonfinal cases on direct

appeal); see also People v. Esquivel (2021) 11 Cal.5th 671, 675–

676 (collecting cases).

2

See, e.g., People v. Slaton (2023) 95 Cal.App.5th 363, 376,

review granted November 15, 2023, S282047 (Evid. Code, §

352.2 does not apply retroactively to nonfinal cases on direct

appeal); People v. Ramos (2023) 90 Cal.App.5th 578, 596 ,

review granted July 12, 2023, S280073 (same); People v.

Venable (2023) 88 Cal.App.5th 445, 456, review granted May 17,

2023, S279081 (Evid. Code, § 352.2 applies retroactively to

nonfinal cases); People v. Jackson (2023) 93 Cal.App.5th 207,

212, review granted September 13, 2023, S281267 (Assembly

Bill 1950 modified the defendant’s probationary period); People

v. Shelly (2022) 81 Cal.App.5th 181, 186 (Assembly Bill 1950

applies retroactively to nonfinal cases); People v. Govan (2023)

91 Cal.App.5th 1015, 1020 (Assembly Bill No. 518’s (2021–2022

Reg. Sess.) amendments to Pen. Code, § 654 apply retroactively

to nonfinal cases); In re S.S. (2023) 89 Cal.App.5th 1277, 1288

(Assembly Bill No. 2361’s (2021–2022 Reg. Sess.) amendments

to Welf. & Inst. Code, § 707 apply retroactively to nonfinal

cases); People v. E.M. (2022) 85 Cal.App.5th 1075, 1088–1090

2

PEOPLE v. BURGOS

Groban, J., concurring

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.

[trial court erred in denying recall on the ground that Senate

Bill No. 1393 did not apply retroactively to defendant’s case

because it was final on appeal]; People v. Superior Court

(Ortiz) (2022) 81 Cal.App.5th 851, 860, footnote 2 (Pen. Code, §

1001.95 applies retroactively to nonfinal cases); In re

N.L. (2022) 81 Cal.App.5th 463, 469 (Senate Bill No. 383 (2021–

2022 Reg. Sess.) applies retroactively to nonfinal cases); People

v. Zabelle (2022) 80 Cal.App.5th 1098, 1109 (Pen. Code, § 1170’s

amended statutory language applies retroactively to nonfinal

cases); People v. Singh (2022) 81 Cal.App.5th 147, 153

(Assembly Bill No. 1259 (2021–2022 Reg. Sess.) applies

retroactively to nonfinal cases).

3

PEOPLE v. BURGOS

S274743

Dissenting Opinion by Justice Evans

Whether ameliorative legislation, such as Penal Code

section 1109,1 applies retroactively is a question of legislative

intent. (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) One

may readily discern the Legislature’s intent with respect to

section 1109 by examining its text and context, the uncodified

legislative findings accompanying its enactment, and its

legislative history. (See In re Marriage of Bouquet (1976) 16

Cal.3d 583, 587 (Bouquet) [“Consistent with Estrada’s mandate,

we must address ‘all pertinent factors’ when attempting to

divine the legislative purpose”].) That examination convinces

me that the Legislature intended this statute, which was

explicitly intended to prevent the conviction of innocent

defendants, to have retroactive effect. I therefore respectfully

dissent.

As relevant here, section 1109 grants a criminal defendant

who is charged with one or more gang enhancements (§ 186.22,

subds. (b), (d)) the right to have the question of guilt be tried in

“separate phases” (§ 1109, subd. (a)): trial on the underlying

offense and then, if necessary, trial on the truth of the gang

enhancement. (Id., subd. (a)(1) & (2).)

1

All subsequent references are to the Penal Code unless

otherwise specified.

1

PEOPLE v. BURGOS

Evans, J., dissenting

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 related

to the underlying charges would reduce the risk of unfairly

prejudicing juries and convicting innocent people.’ ” (Id. at p. 10,

italics added.)

This unfairness was of profound concern to the

Legislature. In clear and forceful language, the Legislature

2

PEOPLE v. BURGOS

Evans, J., dissenting

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,

3

PEOPLE v. BURGOS

Evans, J., dissenting

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 “obvious” and “inevitable”

inference the Legislature would have been as concerned about

wrongful convictions of innocent people that were then occurring

or already had occurred as it was about wrongful convictions

that could occur three months later, once the statute took effect.

(Estrada, supra, 63 Cal.2d at p. 745; cf. In re Johnson (1970) 3

Cal.3d 404, 413 [“the more directly the new rule in question

serves to preclude the conviction of innocent persons, the more

likely it is that the rule will be afforded retrospective

application”].) “[T]o hold otherwise would be to conclude that

the Legislature was motivated by a desire for vengeance,” as

there can be no penological justification for denying the benefit

of section 1109 to innocent defendants whose convictions are not

yet final. (Estrada, at p. 745.)

Consequently, this is yet another instance where the

“ ‘logic’ ” and “rationale” (maj. opn., ante, at pp. 12–13) of

4

PEOPLE v. BURGOS

Evans, J., dissenting

Estrada require a statute to be applied retroactively. As we

have previously explained, section 3’s presumption of

prospective effect does not apply to “new provisions” — like the

one here — “which clearly benefit only defendants.” (Tapia v.

Superior Court (1991) 53 Cal.3d 282, 300; see People v. Conley

(2016) 63 Cal.4th 646, 657 (Conley) [“The Estrada rule rests on

an inference that, in the absence of contrary indications, a

legislative body ordinarily intends for ameliorative changes to

the criminal law to extend as broadly as possible”].) Section

1109 should therefore be given retroactive effect.

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 (Brown), which similarly

5

PEOPLE v. BURGOS

Evans, J., dissenting

attempted to cabin Estrada’s scope only to the specific

circumstances which, to that point, our case law happened to

have addressed. In rejecting an attempt to make retroactive a

temporary increase in the rate at which county jail inmates

could earn conduct credits, Brown purported to limit Estrada to

“ ‘ “[a] legislative mitigation of the penalty for a particular

crime” ’ ” and deemed it significant that the increase in credits

for good behavior “does not represent a judgment about the

needs of the criminal law with respect to a particular criminal

offense.” (Brown, at p. 325, second italics added.)

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

6

PEOPLE v. BURGOS

Evans, J., dissenting

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 at benefiting defendants, it “represents a legislative

judgment that the lesser penalty or the different treatment is

sufficient to meet the legitimate ends of the criminal law.”

(Estrada, at p. 745, italics added.)

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

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Evans, J., dissenting

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

2

In fact, it’s not even an accurate description. If the test

under Estrada were solely whether “ ‘the Legislature has

amended a statute to lessen the punishment’ ” (maj. opn., ante,

at p. 38), then the amended statute at issue in Brown, supra, 54

Cal.4th 314, which temporarily increased the rate at which

county inmates could earn conduct credits (and thus “earlier

release from custody” (id. at p. 322)), would have had retroactive

effect. But Brown correctly did not restrict its analysis to the

statute’s effect on punishment. We reasoned instead that the

amended credits statute, enacted in the face of “a state fiscal

emergency” (id. at p. 318), was not designed to confer a benefit

on defendants; rather, it was designed to “offer[] incentives for

future good behavior.” (Id. at p. 324, italics added.)

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Evans, J., dissenting

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

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Evans, J., dissenting

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 (Prudholme) [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

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Evans, J., dissenting

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

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Evans, J., dissenting

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.

C.

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. (§ 859.5, subds. (a), (b), (d); Stats. 2016,

ch. 791, § 2.) In enacting the amendments, the Legislature had

made findings that recorded interrogations would generally

promote fairness neutrally to both the prosecution and the

defense and reduce the likelihood of prejudice arising from

inaccurate reports of what transpired. (Stats. 2016, ch. 791, § 1,

subd. (a)(2), (3).) In particular, the Legislature believed that

recorded interrogations would not only “decrease[] wrongful

convictions based on false confessions” (id., § 1, subd. (b)), but

also “ ‘prevent disputes about how an officer conducted himself

or herself or treated a suspect during the course of an

interrogation, prevent a defendant from lying about the account

of events he or she originally provided to law enforcement, and

spare judges and jurors the time necessary and the need to

assess which account of an interrogation to believe.’ ”

(Cervantes, at p. 941, quoting Stats. 2016, ch. 791, § 1, subd. (b).)

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Evans, J., dissenting

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 punishment, expands the

opportunities for diversion, limits the ability to try a minor as

an adult, or increases the possibility of acquittal by, say, adding

a new element to (or otherwise narrowing) an offense,

3

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”].)

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Evans, J., dissenting

retroactive application of the new statute could equally “undo or

jeopardize completed trials conducted under valid and

constitutional laws (and where evidence supports guilt beyond

a reasonable doubt).” (Id. at p. 26.) In Frahs, supra, 9 Cal.5th

618, for example, a defendant who had been convicted of second

degree robbery, found to have suffered a prior serious felony

conviction, and sentenced to nine years in prison was allowed to

seek eligibility for mental health diversion under section

1001.36 — despite the fact the defendant had been found guilty

beyond a reasonable doubt under valid and constitutional laws

as they then existed.

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. 628.) While the Legislature may

be free, as a constitutional matter, to apply such a statute either

retroactively or prospectively (see maj. opn., ante, 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

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Evans, J., dissenting

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 section 3 that statutes operate prospectively “is

not a straitjacket.” (Estrada, supra, 63 Cal.2d at p. 746.) As we

recently observed, this presumption “should not be followed

blindly in complete disregard of factors that may give a clue to

the legislative intent.” (Prudholme, supra, 14 Cal.5th at p. 967.)

Section 1109’s explicit focus on the risk of wrongful conviction of

innocent people offers much more than a clue.

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

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Evans, J., dissenting

conviction of innocent people whose judgments could still be

corrected.

I therefore respectfully dissent.

EVANS, J.

I Concur:

LIU, J.

16

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Burgos

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 77 Cal.App.5th 550

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S274743

Date Filed: June 3, 2024

__________________________________________________________

Court: Superior

County: Santa Clara

Judges: Cynthia A. Sevely and Helen E. Williams

__________________________________________________________

Counsel:

Laurie Wilmore, under appointment by the Supreme Court; and

Conrad Petermann, under appointment by the Court of Appeal, for

Defendant and Appellant Francisco Burgos.

Jean M. Marinovich, under appointment by the Supreme Court, for

Defendant and Appellant Damon Stevenson, Jr.

Solomon R. Wollack, under appointment by the Supreme Court, for

Defendant and Appellant James Richardson.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Jeffrey M. Laurence, Assistant Attorney General,

Alice B. Lustre, Seth K. Schalit and J. Michael Chamberlain, Deputy

Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Solomon R. Wollack

Attorney at Law

P.O. Box 23933

Pleasant Hill, CA 94523

(925) 671-2501

Jeffrey M. Laurence

Assistant Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3812