Is California’s AB 333 Gang Law Retroactive?

California’s Assembly Bill 333 (AB 333) represents a shift in how the state prosecutes alleged gang-related offenses. Enacted to address concerns about the broad application of gang enhancements, the law altered legal definitions and trial procedures under California Penal Code section 186.22. This has led to a question for many individuals previously convicted: whether these changes apply to past cases. The answer depends on the legal status of a conviction when AB 333 went into effect on January 1, 2022, examining retroactivity for cases that were not yet final and for those where convictions had been finalized.

Key Changes Under Assembly Bill 333

Assembly Bill 333 introduced several amendments to California’s gang enhancement law. One of the most substantial changes was narrowing the definition for a “pattern of criminal gang activity.” Previously, prosecutors could establish this pattern using a wide range of offenses. Under AB 333, the law now requires proof that the predicate offenses—the crimes used to establish the pattern—”commonly benefited” the criminal street gang in a way that was more than just reputational. This “common benefit” requirement created a stricter standard of proof, and the new law mandates that the benefit derived from the predicate offenses must be shared jointly by gang members, such as through financial gain or securing a tactical advantage.

The legislation also added a new procedural safeguard for defendants. Under the newly created Penal Code section 1109, a defendant can request that the trial for the underlying felony be separated, or “bifurcated,” from the trial on the gang enhancement allegations. This allows the jury to first decide guilt on the base charge without being exposed to potentially prejudicial evidence related to gang affiliation. The trial on the gang enhancement only proceeds if the defendant is first found guilty of the underlying crime.

These modifications raise the evidentiary bar for prosecutors seeking to apply a gang enhancement. The law now demands a more direct and tangible link between the alleged crimes and the activities of a criminal street gang. By redefining what constitutes a pattern of activity and how a gang benefits from a crime, AB 333 aims to ensure these enhancements are applied only in cases with clear evidence of organized gang conduct.

Determining Retroactivity for Non-Final Cases

Whether AB 333’s changes apply to older cases hinges on the legal principle of retroactivity for convictions that were not yet final when the law became effective. A conviction is considered “non-final” if the defendant is still in the process of a direct appeal or if the time to file an appeal has not yet expired. The legal foundation for this retroactivity is a California Supreme Court decision, In re Estrada. This ruling established a presumption that when the legislature enacts a new law that lessens punishment for a crime, it applies to all cases that are not yet final.

Courts have affirmed that the substantive changes made by AB 333, which heighten the prosecution’s burden of proof, fall under the Estrada rule. In People v. Tran, the California Supreme Court confirmed that these amendments apply retroactively to all non-final cases. As a result, defendants whose cases were on direct appeal when AB 333 took effect are entitled to have their gang enhancements reviewed under the new legal standards.

However, the law’s procedural change—the right to a bifurcated trial—has been treated differently. In People v. Burgos, the California Supreme Court established that this provision does not apply retroactively. The court found that this procedural rule does not reduce punishment in the same direct way as the substantive changes. Therefore, defendants with non-final cases can benefit from the new definitions but are not entitled to a new, bifurcated trial.

Application to Final Convictions

The legal landscape is different for individuals whose convictions were final before AB 333 became law. A conviction is considered final once a defendant has exhausted all direct appeal opportunities and the judgment has been entered. For this group, the presumption of retroactivity established by In re Estrada does not apply.

California courts have affirmed that the substantive benefits of AB 333 do not extend to cases that are already final. The state’s interest in the finality of concluded cases means the legal standards in place at the time of the conviction are upheld. An individual whose conviction and sentence were final cannot petition a court to have their gang enhancement reviewed under the new definitions.

The Process for Seeking Relief

For individuals with non-final convictions who may be eligible for relief, the process unfolds through the appellate court system. The primary avenue for raising the issue is during the direct appeal of the conviction. An attorney will file a brief with the appellate court arguing that the case should be sent back to the trial court for reconsideration in light of the new law. The legal filing must demonstrate that the conviction was not final as of January 1, 2022, and that the evidence presented at trial may not satisfy the updated requirements.

If the appellate court agrees, it will vacate the gang enhancement finding and remand the case to the trial court. At this stage, the prosecution has the option to either retry the gang enhancement allegation under the new, stricter standards or to abandon the enhancement altogether. If the prosecution chooses to proceed, a new hearing will be held where they must present evidence meeting AB 333’s requirements. For non-final cases, the direct appeal remains the standard method for seeking relief.