Does a Pre-AB 333 Strike Stay a Strike after AB 333?

On August 28, 2016, at about 1:00 a.m., Luis Quintanar and two of his friends encountered another man in a Riverside church parking lot.  Quintanar asked the man, “What’s up, G?” 

The man started arguing with Quintanar and in response, Quintanar tried to calm down the man.  However, the man pulled out a gun and fired one shot into the air.  Quintanar called the man a bitch and tried to raise his hands in the air, but the man shot Quintanar in the chest, killing him.

A detective interviewed Thomas Ryan Scott about the shooting and Mr. Scott denied being present.  However, when the detective suggested the shooting might have been in self-defense, Mr. Scott changed his story and explained that Quintanar approached him in the parking lot and demanded “weed” from him.  One of the men pushed Mr. Scott and Quintanar hit him with his skateboard.

Mr. Scott explained that he then fired a warning shot into the air and the three men tried to wrestle away the gun, but in the tussle, Quintanar was shot.  Mr. Scott was then arrested.

The Riverside District Attorney’s Office charged Mr. Scott with murder, but in a jury trial, he was found guilty of voluntary manslaughter (Penal Code § 192(a)), with a personal firearm enhancement (Penal Code § 12022.5(a)) and of unlawful possession of a firearm (Penal Code § 29800). 

Mr. Scott also admitted one prior conviction ads a “strike,” a 2009 conviction for unlawful taking of a vehicle (Vehicle Code § 10851) with a gang enhancement (Penal Code § 186.22(b)) found true associated with it (“[A]ny felony offense, which would also constitute a felony violation of Section 186.22, is a strike.”  Penal Code § 1192.7(c)(28).  This includes ‘any felony offense’ that was committed for the benefit of a criminal street gang within the meaning of 186.22(b)(1).  People v. Briceno (2004) 34 Cal. 4th 451, 456.). 

He also admitted one prior serious felony conviction and one prior prison term enhancement, but the trial court dismissed these at sentencing.  He was then sentenced to a total of 33 years and four months in prison.  His sentence was “doubled” for his prior “strike.”

Mr. Scott then filed a petition for resentencing after Assembly Bill (AB) 333 was passed, arguing that changes to Penal Code § 186.22(b) brought on by AB 333, effective January 1, 2022, meant his prior strike was no longer a strike.

The trial court denied his petition, noting that Mr. Scott admitted his prior strike was a strike on February 2, 2022, after AB 333 was effective.  On the record, in fact, he said, “I admit the strike prior.”

On appeal to the Fourth Appellate District, Mr. Scott argued that his admission of a prior strike on February 2, 2022, was a mere admission that he suffered the prior conviction and not its legal effect as a strike.

Putting aside this attempt to distinguish his admission, the Fourth Appellate District respectfully denied his contention on the merits that a change in the law can vitiate a prior strike.  The Fourth District held that the status of a prior as a strike is fixed at the time of the conviction.

The appellate court acknowledged a defendant is entitled to the benefit of an ameliorative amendment while his or her appeal is pending.  Here, however, the conviction for the 2009 strike was final in 2022.  There was no appeal pending for the 2009 conviction in 2022.  As the appellate court stated, “defendant’s 2009 conviction is long since final.”

We bring this summary to the reader’s attention because we have received several phone calls from prisoners and the family of prisoners on this exact issue and, likewise on firearm enhancements under Senate Bill 620.  Our answer, even before this opinion was issued, was exactly as the Fourth Appellate District ruled, as it just made sense that a long final conviction could not be recharacterized as sought unless specifically addressed by the Senate Bill at issue, which SB 333 did not state.

For more information about how a conviction or sentence is regarded from a different jurisdiction, please click on the following articles: