What is the test for retroactive application in a criminal case?

The due process clause "bars retroactive application of a judicial construction of a criminal statute that is unexpected and indefensible by reference to the law expressed before the conduct in issue." ( People v. Crew (2003) 31 Cal.4th 822, 853, 3 Cal.Rptr.3d 733, 74 P.3d 820 ; see Bouie v. City of Columbia (1964) 378 U.S. 347, 352-355, 84 S.Ct. 1697, 12 L.Ed.2d 894.) "[R]etroactive application turns on whether the change effects 'an unforeseeable judicial enlargement of a criminal statute' [citation] and whether defendant had 'fair warning that ... contemplated conduct constitutes a crime.' [Citation.]" ( People v. Martinez (1999) 20 Cal.4th 225, 239, 83 Cal.Rptr.2d 533, 973 P.2d 512.)