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Name: People v. Mitchell (2023) 97 Cal.App.5th 1127
Case #: F084489
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/15/2023

Following remand for resentencing, appellant was entitled to the retroactive benefits of Assembly Bill No. 333. Mitchell was convicted felony offenses (including being an active gang member) and the jury found numerous gang enhancements true. Pursuant to Mitchell’s prior appeal, which occurred before AB 333 became law, his case was remanded for resentencing. By the time of the resentencing hearing, AB 333, which amended the law regarding the substantive gang offense and enhancement, had become effective. The trial court expressed concern whether the new law should be applied, but found itself bound by the scope of the remittitur and concluded that it lacked jurisdiction to address the validity of the gang conviction and the gang enhancements. On appeal from resentencing, Mitchell argued that AB 333 applies retroactively to his case. Held: Reversed. There is a presumption that the Legislature intends for ameliorative laws to apply as broadly as is constitutionally permissible, to all nonfinal judgments. AB 333 changed the definition of a criminal street gang and added elements required to prove the substantive offense and the enhancement. It is true that the remittitur defines the scope of the jurisdiction of the court to which the matter is returned. However, since Mitchell’s case never became final, he is entitled to the presumption that the ameliorative effects of AB 333 should be applied. (Disagreeing with the contrary holding in People v. Lopez (2023) 93 Cal.App.5th 1110, review granted 11/15/2023 (S281488/E080032).)