The defendant was entitled to conduct credits.
The defendant was awarded 175 days credit for presentence custody but no conduct credits. Because he was convicted of a violent felony, section 2933.1 limits the conduct credit to 15% of the number of days in actual custody. He thus was entitled to an award of 26 days conduct credit—i.e., 15 percent of 175.
PEN 2933.1
Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.
Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.
PEN 1172.6
A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.
People v. Quan (2023) 96 Cal.App.5th 524, 532
People v. Basler (2022) 80 Cal.App.5th 46, 57
People v. Jackson (2025) 110 Cal.App.5th 128, 150-151
The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.
Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668
Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.
Chapman v. California (1967) 386 U.S. 18, 24
People v. Nieves (2021) 11 Cal.5th 404, 461
People v. Mendoza (2016) 62 Cal.4th 856, 902
In light of the California Supreme Court’s recent decision in Fletcher, we vacate the trial court’s findings that defendant’s 2016 conviction for violating section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposing a prior serious felony conviction enhancement. Defendant’s sentence is vacated and this matter is remanded for further proceedings.
The Legislature enacted AB 333, effective January 1, 2022, to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. As noted, AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22.
AB 333
PC 186.22
People v. Fletcher (2025) 18 Cal.5th 576
People v. Rojas (2023) 15 Cal.5th 561
People v. Tran (2022) 13 Cal.5th 1169
Defendant was convicted of making criminal threats in this case more than two years after the amendment of section 186.22, but for purposes of sentencing under the Three Strikes law and imposition of a prior serious felony conviction enhancement, the trial court found true that in 2016, defendant was convicted of active participation in a criminal street gang, in violation of section 186.22(a), which is a serious felony. Courts of Appeal were split on whether prosecutors were required to prove prior gang convictions under section 186.22 as amended by AB 333 or whether it was sufficient to show a conviction under the statute in effect at the time of the prior conviction.
Based on this split of authority, defendant claimed entitlement to relief from the court’s findings related to his 2016 gang conviction because the conviction must meet the elements of section 186.22(a), as amended by AB 333. The California Supreme Court resolved the split of authority in defendant’s favor and held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.
People v. Fletcher (2025) 18 Cal.5th 576, 583
On remand, the People may elect to retry the prior conviction allegations under section 186.22(a) as amended by AB 333.
People v. Fletcher (2025) 18 Cal.5th 576, 608
On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.
At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.
People v. Lopez (2025) 17 Cal.5th 388, 396
Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.
We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.
[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]People v. Stamps (2020) 9 Cal.5th 685, 707-708
People v. Superior Court (1982) 131 Cal.App.3d 256
Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58
We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.
People v. Walker (2024) 16 Cal.5th 1024, 1033
People v. Burke (2023) 89 Cal.App.5th 237, 242
Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.
The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.
PEN 1385(c)(1)
People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]
On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.
People v. Walker (2024) 16 Cal.5th 1024
The jury found the defendant guilty of grand theft for his unlawful killing of a mountain lion that had been part of a study conducted by the a state educational institution. The conviction for grand theft must be reversed because there was no substantial evidence that the educational institution owned the mountain lion. We reverse defendant’s conviction for grand theft.
An essential element for grand theft was that the educational institution had a proprietary or possessory interest in the mountain lion. Although wild animals are collectively owned by the people of California generally, the state does not have a possessory interest in wild animals for purposes of the theft statutes.
CIV 656 [Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued.]
People v. Brady (1991) 234 Cal.App.3d 954, 957. [The well-settled rule in California is that no one holds a personal property right in wild animals or fish unless captured, tamed or otherwise reduced to possession.]
The educational institution’s temporary capture and release of the mountain lion into the wild with a tracking collar did not vest the educational institution with an interest in the mountain lion protectable by the theft statutes of this state
Moerman v. State of California (1993) 17 Cal.App.4th 452, 457-458 [state did not own for purposes of inverse condemnation tule elk captured, tagged, relocated, and monitored as part of state program]