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Name: Retroactivity
Summary

After the trial court granted appellant’s Penal Code section 1172.6 petition, his murder conviction was redesignated as assault with force likely to cause great bodily injury with a great bodily injury enhancement, plus a substantive gang offense. At the resentencing hearing, the court declined to retroactively apply AB 333 to the gang conviction. The Court of Appeal agreed with appellant that he is entitled to the retroactive application of Assembly Bill 333. Once appellant’s collateral attack successfully vacated his murder conviction, he was entitled to the retroactive application of ameliorative laws that benefited him because the judgment was no longer final for purposes of Estrada retroactivity (In re Estrada (1965) 63 Cal.2d 740). He had a right to be resentenced “on any remaining counts in the same manner as if the petitioner had not previously been sentenced,” which included retroactive application of AB 333. The court reversed appellant’s section 186.22, subdivision (a) conviction and remanded to the trial court for possible retrial of that count in compliance with the amendments brought about by Assembly Bill 333.