The Finality Line

In recent years, our Legislature has enacted an array of criminal law reforms favorable to defendants, causing a half-century-old case to be frequently pressed into service in the appellate courts. In re Estrada, 63 Cal. 2d 740 (1965), provides welcome clarity to the law but draws a line that is messier than it might seem.

Estrada established a simple rule for discerning the retroactivity of an ameliorative criminal statute. Where the Legislature is silent about retroactivity, courts presume that the new statute will apply to all defendants whose case is not yet "final" when the law goes into effect.

This finality test means that defendants receive the benefit of the legislation if they may still be granted relief in their direct appeal. Putting aside some nuances, a case becomes final when "the time for petitioning for a writ of certiorari in the United States Supreme Court has passed." People v. Covarrubias, 1 Cal. 5th 838, 935 (2016).

In 2020, 540 California appellate opinions (published and unpublished) cited to Estrada, according to a search of Westlaw's database of California cases. (As recently as 2013, just 30 cases cited Estrada; in 1989, just one case in Westlaw's database did so.)

Where an ameliorative statute is silent as to its retroactivity, Estrada provides the sort of clear rule that we appellate judges love. It eliminates the need to try to discern what the Legislature intended by offering a presumption -- a type of canon of construction -- for determining the extent of retroactivity.

Even better, when we apply Estrada, we in theory are doing precisely what the Legislature wishes. The Legislature is presumed aware of Estrada, so legislative silence represents acquiescence in Estrada's rule. The Legislature can always decide on a different rule by expressly addressing the retroactive scope of a statute. But, if it doesn't do so, Estrada tells judges just what to do: Apply the new statute to defendants whose cases are not final, and to only those defendants.

We should not, however, confuse a clear rule with a perfect one.

The term "finality" carries the sense of a moment of completion, where something is "done" in a way that is meaningful compared to things still in progress. A hard-boiled egg is fit for consumption when done; a raw one isn't.

It takes perhaps 10 minutes to hard-boil an egg, and the process for all eggs is pretty much the same. In our judicial system, however, "finality" sometimes represents more of an arbitrary line than egg-boiling. There is no "roughly 10-minute" equivalent for cases. How long it takes a case to become final can depend on various things that have little to do with the case's merits, or with notions of justice across cases.

For an example, let's consider the new law known as Assembly Bill 333, which as of January 1, 2022, will make it harder for the prosecution to prove gang offenses and enhancements under Penal Code Section 186.22. Under Section 186.22, defendants who commit a felony for the benefit of a criminal street gang receive extra imprisonment of up to 10 years. The prosecution must show a "pattern of gang activity" to prove that a criminal street gang is involved, and AB 333, among other things, restricts the type of crime that can be used to show such a pattern and precludes using the current crime in that proof.

If AB 333, silent as to retroactively, applies to a convicted defendant who has received a gang enhancement, it could be significant: The extra imprisonment term could be vacated if it was based on proof that now no longer suffices.

Let's consider some entirely hypothetical cases to see how finality works.

Assume that Fred and Larry were convicted at a joint trial in February 2021, and each received a 10-year gang enhancement following solid proof of a pattern of gang activity. But that activity was proven with a crime, such as felon-in-possession of a firearm, that AB 333 no longer permits. If AB 333 applies to Fred and Larry, their gang enhancements would be vacated based on insufficient evidence.

With the hypothetical Fred and Larry, however, different things occurred post-judgment.

Fred, aware that he had no meritorious appellate issues at the time, opted not to appeal. His case thus became final when the time to file a notice of appeal passed in March 2021. Because his case became final before January 1, 2022, he is not eligible to have his 10-year gang enhancement set aside under Section 186.22.

Larry, on the other hand, filed a notice of appeal. His appointed appellate attorney reviewed his record but, in mid-2021, filed a no-issues opening brief under Anders v. California, 386 U.S. 738 (1967), and People v. Wende, 25 Cal. 3d 436 (1979). The Court of Appeal reviewed Larry's record and affirmed the conviction, agreeing that there was no meritorious issue. Larry then petitioned for review in the state Supreme Court, which denied review in November 2021. Larry has 90 days from that point to petition the U.S. Supreme Court for certiorari.

Larry's direct appeal is not done on January 1, 2022, so his case is not final when AB 333 goes into effect. Larry therefore has some good luck: He receives the benefit of AB 333, so he might have his 10-year gang enhancement is vacated, and the case returned to the trial court. (I won't address here whether the prosecution can re-try him on the gang enhancement.)

What is the difference between Fred, whose case was final, and Larry, who lucked into receiving the benefits of the legislation? The difference was simply that Larry filed a frivolous appeal that kept his case from becoming final before AB 333 went into effect.

Consider another two hypothetical defendants, Francine and Louisa, who were convicted in trials several years ago (let's say 2017), with the People proving 10-year gang enhancements under Section 186.22.

Francine's appeal took a normal course, and she lost it in the Court of Appeal after briefing and argument, in 2019. Her case was final by the time AB 333 went into effect, and she receives no benefit from the legislation.

Louisa also lost her appeal in 2019. But her appeal raised a legal argument that the state Supreme Court was reviewing in a different case, so when she petitioned, the Supreme Court granted review and held Louisa's case for the other case. When the court decided the other case (let's hypothetically say it was People v. Lemcke, 11 Cal. 5th 644 (2021), which involved the possibility of error in a common jury instruction), the court sent Louisa's case back to the Court of Appeal to reconsider in light of the new Lemcke opinion.

Near the end of 2021, the Court of Appeal found any Lemcke error harmless in Louisa's case. She now can petition for review again, and seek a writ of certiorari. The process had the effect of ensuring that her case was not final on January 1, 2022, so she receives the benefits of AB 333. Louisa was fortunate that she raised an issue that caused her case to be held by the state Supreme Court for a substantial period, keeping it alive for the advent of AB 333. Francine's appeal ended earlier and thus became final.

Various other matters can delay finality and make a defendant lucky like Larry and Louisa: extensions for attorney briefing or for creating trial transcripts; supplemental briefing on an issue; an overburdened appellate court that takes a long time on the case; a remand to act on a minor or technical issue. All these can end up causing a case to not yet be final when an ameliorative statute goes into effect.

Such factors provide no reason why a defendant deserves the benefit of a new statute. Despite that these factors can be arbitrary, Estrada may nevertheless be the best default rule for appellate courts to apply in the face of legislative silence as to retroactivity. Other simple rules have their own problems.

On one hand, picking a date for when a statute becomes applicable to a trial court judgment (including the statute's effective date) creates obvious disparities between defendants sentenced after the date and those sentenced shortly before it. On the other hand, making a statute retroactive to all incarcerated defendants would require the courts to effectively create a burdensome petitioning process to allow meritorious claims to be identified. Regardless of the merits of other options, Estrada has been our law for decades.

Estrada's finality rule provides a clear solution to the problem of what the law of retroactivity of a criminal reform is, when the Legislature is silent. It provides certainty and can make the retroactivity determination easy for courts.

It is important, nevertheless, not to let Estrada's simplicity prohibit understanding the ways in which finality can draw an arbitrary line. Judges are bound by Estrada's rule, but to contemplate whether the default rule is in fact the best legislative one for a particular criminal law reform, one must understand the messiness of the line it draws. 