After Sentence Recall, All New Sentencing Laws Apply?

In Orange County, Victor Hugo Salgado shot at a rival gang member but killed another and was charged with one count of first degree murder (Penal Code § 187(a)), one count of attempted premeditated murder (Penal Code §§ 187(a), 664), two counts of assault with a semiautomatic firearm (Penal Code § 245(b)), one count of possession of a firearm while on probation (Penal Code § 12021(d)) and one count of street terrorism (active gang participation) (Penal Code § 186.22(a)).

As to all counts except the count of street terrorism, it was further alleged that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang (Penal Code § 186.22(b)(1)). 

As to the first degree murder count, it was alleged that Salgado personally discharged a firearm causing death (Penal Code § 12022.53(d)) and as to all counts, it was alleged that Salgado personally used a firearm to commit or attempt to commit the offense (Penal Code § 12022.5(a)).  The People also alleged a great bodily injury (GBI) enhancement (Penal Code § 12022.7) as to the two assault with a semiautomatic firearm counts.

On January 6, 2005, a jury in the Orange County Superior Court acquitted Salgado of the first degree murder charge, but committed him of second degree murder.  It also convicted him of attempted murder, but found not true the premeditation allegation.  The true also convicted him of all other counts and found true all firearm, gang and GBI allegations.

The judge sentenced Salgado to 63 years to life in state prison and Salgado appealed.  The Fourth Appellate District Court affirmed the convictions and his sentence.

On July 26, 2018, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the Orange County Superior Court noting that imposition of both a gang enhancement and a firearm enhancement on the aggravated assault convictions was contrary to recent case law and recommended resentencing under the former Penal Code § 1170(d)(1).

On August 20, 2021, Judge Elizabeth G. Macias of the Orange County Superior Court resentenced Salgado to a new term of 41 years to life, consisting of 15 years on the second degree murder, plus 25 years to life for the personal firearm discharge causing death enhancement (Penal Code § 12022.53(d)), plus one year for the gang enhancement (Penal Code § 186.22(b)(1)).  Judge Macias also imposed the low term on the attempted murder count and low term on both assault counts and ran them concurrently with the sentence on count 1.  She also imposed the low term on the possession of a firearm while on probation and the participation in a criminal street gang charges and ran those sentences concurrent as well.

After Assembly Bill (AB) 333 was passed into law effective January 1, 2022, Salgado appealed his sentence on the active participation in a street gang charge.  AB 333 applies retroactively.  See In re Estrada (1965) 63 Cal. 2d 740, 748.

Salgado argued to the Fourth Appellate District that the jury’s true findings on the gang enhancements did not make the newly required factual determinations that AB 333 requires.  In addition, Salgado argued that his entire sentence needed to be reconsidered in light of all the recent amendments to sentencing laws.

The Fourth Appellate District agreed, noting that the California Supreme Court had recently held that “once a court has determined that a defendant is entitled to resentencing, the result is the vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence.” People v. Padilla (2022) 13 Cal. 5th 152, 163. 

The prosecution responded that if the court concludes that AB 333 applies, the court should remand the matter to provide the prosecution an opportunity to prove the gang offense and the enhancements under the newly amended gang statute. 

The Fourth Appellate District agreed, explaining that because the gang enhancements were not reversed due to insufficiency of the evidence, . . . the double jeopardy clause of the Constitution will not bar retrial.”  People v. Sek (2022) 74 Cal. App. 5th 657, 669-670.  The court further explained that this was fair because at the time Salgado was tried, the law on gang enhancements required evidence that is not now required, so the prosecution did not present certain evidence. 

Consequently, the case was remanded for a limited retrial on the gang enhancement under AB 333, with instructions to recalculate Salgado’s custody credits based on actual time already served.

We present this summary because some of our clients think that with the passage of AB 333, all gang enhancements must simply be vacated because the standard is higher now.  This is not correct, as this case shows.

For more information about application of the new sentencing laws, please click on the following articles: