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IS A NEW OR AMENDED CRIMINAL LAW RETROACTIVE?

This is a tale about how a small change in criminal law can affect a criminal defendant in a big way.

The California Legislature is always busy writing bills seeking to enact new or amended criminal laws. When these bills pass committee and are signed by the governor, they will become law. Sometimes the new or amended laws take effect while a defendant who would be affected by the new law is awaiting judgment, awaiting sentence, or already convicted and serving a sentence. Are the new or amended laws retroactive to these affected defendants?

Here is the tale of the unfortunate Mr. Robinson. His particular encounter with an amended law has been repeated in many variations and many times over the years when a new or amended law takes effect.

In 2019 Mr. Robinson pleaded guilty to several felony burglary counts and, as relevant here, he also admitted as true that he was convicted of felony grand theft within the prior five years.  At the time of his plea Penal Code section 667.5(b) imposed a one-year sentence enhancement for each prior prison or county jail term if the present offense is a felony. He was sentenced in August 2019. This is called the “final judgment.” Because Mr. Robinson had the prior felony for which he had been sentenced to prison, one year was added to his sentence. This is called a “sentence enhancement.” After the final judgment (the sentence) is rendered, a convicted felon has 60 days to appeal. Mr. Robinson did not appeal.

On January 1, 2020, Senate Bill 131 became effective. This bill amended Penal Code section 667.5(b) extending the one-year enhancement only to defendants who served a prior prison term for a sexually violent offense as defined under Welfare & Institutions Code section 6600(b). Mr. Robinson’s prior offense did not fall under this category.

While in prison, Mr. Robinson got wind of this new law and believed his one-year sentence enhancement should be reversed. Makes sense, but he was wrong.

When a new or amended law is enacted it does not apply retroactively unless there is what is called a “saving clause,” which is a clause in the new or amended law that explicitly states the law operates retroactively. Rarely do new or amended criminal laws have a savings clause, and that is also true about the amended section 667.5. When there is no savings clause, the law operates retroactively only when there is no final judgment. This is a long-standing precedent first enunciated in the case, In re Estrada (1965) 63 Cal.2d 740. As I mentioned before, a final judgment is when the judge sentences the defendant, or is it? Well, yes and no. The defendant has 60 days after final judgment to appeal. When the 60 days have passed without appeal, the judgment is then considered final.

Confused? What this meant for poor Mr. Robinson is that because he was sentenced in August and did not appeal, he was about four months too early and was stuck with the extra year on his sentence. If he had appealed, and the appeal was still pending, he likely would have been eligible to petition the court for resentencing under the new section 667.5. Or if only his criminal defense attorney would have found a way to put off sentencing until the new year…..

This may seem to be a trivial point, but it is not. A skilled Orange County criminal defense attorney will keep abreast of new laws that might affect a client. In the case of the amendment to section 667.5, it was signed into law in October 2019, which was after Mr. Robinson was sentenced. However, it had already passed committee months before and was likely to be signed into law by the governor. An astute criminal defense attorney may have advised Mr. Robinson to hold off on his plea or otherwise delay sentencing, if possible until the outcome of the Senate bill was known.

Contact Orange County criminal defense attorney William Weinberg for a complimentary consultation. He will review your matter and advise you of your options. Schedule a consultation by calling his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.