Error and/or relief
At the section 1172.75 sentence recall hearing, the court imposed a sentence longer than the original sentence, which violates section 1172.75. Remanded for a full resentencing hearing in compliance with section 1172.75.
First Holding:
Section 1172.75 makes it clear that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. Here, appellant was originally sentenced to an aggregate term of 25 years to life plus five years.
At resentencing, the trial court significantly increased appellant’s sentence when it imposed three consecutive 25-year-to-life terms, rather than concurrent terms as were previously imposed, plus three years for the great bodily injury enhancement on count 2 and a consecutive, rather than a concurrent, upper term of six years on count 3. Defendant was resentenced to an aggregate term of 75 years to life plus nine years.
Authority:
PEN 1172.75
Second Holding:
We conclude that appellant’s sentence is unauthorized since it directly violates section 1172.75(d)(1)’s proscription against imposing a longer sentence at resentencing An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case. It is well established that when the trial court pronounces a sentence which is unauthorized that sentence must be vacated and a proper sentence imposed when the mistake is brought to the attention of the reviewing court. Therefore, because defendant’s sentence is unauthorized, we vacate defendant’s sentence and remand the matter to the trial court for resentencing in compliance with section 1172.75(d).
Authority:
In re G.C. (2020) 8 Cal.5th 1119, 1130
People v. Benton (1979) 100 Cal.pp.3d 92, 102