Cascading retroactivity

The California Supreme Court recently granted review in People v. Esquivias, No. S286371, which will give the court the opportunity to address the concept of the "cascading retroactivity" of new criminal sentencing laws.

Over the last decade, the California Legislature has enacted several new sentencing laws that have either (1) narrowed the scope of (or altogether eliminated) existing criminal sentencing enhancements or (2) granted trial judges a newfound discretion on whether to impose certain enhancements. These new laws certainly apply to all defendants sentenced after they take effect, but do they apply to defendants who have already been sentenced, including to the largest subset of that group whose convictions have already become final by the time these laws take effect? (For these purposes, a conviction is final once the defendant's direct appeal has concluded and the time to petition the United States Supreme Court for a writ of certiorari has expired. In re Spencer, 63 Cal.2d 400, 405 (1965).)

More to the point, does a defendant whose conviction is final and who is entitled to relief under one new sentencing law have a right to also obtain relief under a second new sentencing law, even if the defendant would not otherwise be entitled to relief under this second law?

In other words, when and how does retroactivity cascade?

Consider this more concrete example. The Legislature enacts Law No. 1 on Jan. 1, 2018, and that law eliminates a sentencing enhancement. Defendant's conviction becomes final on Jan. 1, 2020. The Legislature enacts Law No. 2 on Jan. 1, 2022, and that second law eliminates a different sentencing enhancement. On Jan. 1, 2024, defendant files a post-conviction petition seeking relief under both Law No. 1 and Law No. 2.

As a general matter, defendant--even though his conviction has become final by the time he has filed his petition seeking relief--is entitled to relief under Law No. 1 but not Law No. 2. Penal Code section 3 erects a statutory presumption that new laws are not "retroactive, unless expressly so declared." However, the California courts will infer a legislative intent to apply a new law retroactively if that new law "mitigat[es]" or lessens "punishment for a particular criminal offense." People v. Brown, 54 Cal.4th 314, 324 (2012); In re Estrada, 63 Cal.2d 740, 744-45 (1965). This court-made rule, commonly called the Estrada rule, draws a distinction between "non-final" and "final" convictions: If a defendant's conviction is not yet final, they may take advantage of the new law, People v. Conley, 63 Cal.4th 646, 656 (2016); People v. Esquivel, 11 Cal.5th 671, 677 (2021), but if the conviction is final, they generally may not take advantage of the new law. Applying the Estrada rule, the defendant in our example would be entitled to relief under Law No. 1 (because his conviction was not yet final when it took effect) but not under Law No. 2 (because his conviction was final by the time Law No. 2 took effect). But Estrada is merely a default rule: The Legislature may specify a different rule of retroactivity.

So, when does Defendant's entitlement to relief under Law No. 1 cascade in a way that entitles him to relief under Law No. 2 (to which he would otherwise not be entitled)?

Consider four scenarios:

In the first, the Legislature explicitly spells out a procedure for retroactively applying Law No. 1 that does not allow courts to also retroactively apply Law No. 2. If, for instance, Law No. 1 eliminated what was previously a mandatory and consecutive three-year sentencing enhancement for all defendants (including those whose sentences are final), and directed trial courts to reduce each defendant's sentence by three years without conducting a resentencing, that law would ostensibly not entitle any defendant to relief under Law No. 2.

In the second scenario, the Legislature does not speak to whether relief under Law No. 1 also entitles the defendant to relief under Law No. 2. This is the case with Penal Code section 1172.75. That statute declares "legally invalid" the one-year sentencing enhancement for serving a prior felony prison term (except when served for a sexually violent offense), and specifies that defendants who are entitled to relief under this law (Law No. 1) are entitled to be "resentence[d]."  Cal. Penal Code § 1172.75(c). This triggers a court-made default rule in California that any resentencing be a "full resentencing." People v. Buycks, 5 Cal.5th 857, 873, 893 (2018). The full resentencing rule requires courts to re-evaluate all aspects of a defendant's sentence under the law as it exists at the time of resentencing, which necessarily includes correcting aspects of that sentence that have become invalid due to the retroactive application of all new sentencing laws in effect at that time. Ibid.; People v. Walker, 67 Cal.App.5th 198, 205-06 (2021). Thus, a defendant who is resentenced under Law No. 1 would be entitled to the application of Law No. 2, since Law No. 2 is the law in effect at the time of resentencing in 2024. Put differently, the retroactive application of Law No. 1 cascades to require the retroactive application of Law No. 2.

In the third scenario, a court grants habeas relief and vacates a defendant's final conviction on constitutional grounds. Is the defendant entitled to the retroactive application of Law No. 1 and Law No. 2? The California Supreme Court in People v. Padilla, 13 Cal.5th 152, 162-63 (2022), answered, "Yes." In Padilla, the defendant petitioned for a writ of habeas corpus claiming his sentence violated the Eighth Amendment. When his petition was granted and his sentence vacated, the defendant argued that he could take advantage of the newly enacted Proposition 57, which entitled the defendant to a fitness hearing as to whether he should be prosecuted as an adult or a juvenile. Padilla held that the order on habeas vacating the defendant's "final" sentence effectively hit the reset button and rendered his sentence "non-final," which meant he was entitled under Estrada to invoke Proposition 57.

The fourth scenario is the one presented in Esquivias.

There, the defendant petitioned for a writ of habeas corpus claiming his conviction was not yet final at the time that our Legislature made the imposition of a firearm enhancement discretionary with the trial judge (for our purposes, Law No. 1). The defendant was clearly entitled to relief on that ground, and the trial court granted habeas relief and struck the enhancement. But the defendant in his petition also sought to have his gang enhancement stricken for non-compliance with a new law that took effect after his conviction originally became final, and hence to which he was not entitled to relief (for our purposes, Law No. 2). The trial court declined to grant habeas relief on this second ground because he was not independently entitled to relief under Law. No. 2. On appeal, the defendant argued that the doctrine of cascading retroactivity obligated the trial court, once it granted relief to correct his sentence under Law No. 1, to grant habeas relief and vacate his sentence--thereby rendering his conviction "non-final" under Padilla--so he could take advantage of Law No. 2. The Court of Appeal (which I authored) rejected that argument, 103 Cal.App.5th 969 (2024), and the Supreme Court granted review.

Esquivias will likely call upon the Supreme Court to define the contours of the doctrine of cascading retroactivity.

Indeed, Esquivias sets up a collision between two areas of law.

On the one hand, is the law that embodies the doctrine of cascading retroactivity, which, as noted above, obligates a court to conduct a full resentencing whenever it alters any portion of a sentence.

On the other is the law of habeas corpus. That law provides that courts have the power to limit grants of habeas corpus relief to a "specific claim or claims" presented in a petition. People v. Superior Court (Pearson), 48 Cal.4th 564, 572 (2010). A rule that obligates a court, once it grants habeas relief to a defendant to retroactively apply a new law to one aspect of a sentence, to then grant habeas relief as to all aspects of the sentence--even if the defendant would not otherwise be entitled to such relief absent the court's initial, limited grant--could be seen as interfering with the power of trial courts to decide which issues to review on habeas. Esquivias, 103 Cal.App.5th at 977.

Esquivias may reconcile this conflict.