Monthly Archives: September 2026

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000911

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.

(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)

First Holding:

Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.

In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Authority:

PEN 1172.1

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

Second Holding:

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.

Authority:

PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]

Third Holding:

Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.

Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]

Fourth Holding:

The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]

Fifth Holding:

(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)

Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.

Authority:

People v. Espino (2026) 20 Cal.5th 57

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

Abstracts and Minutes

Case 000910

Posted on by Gary McCurdy

Error and/or relief

The abstract prepared following the hearing on the petition to recall the sentence under section 1172.75 does not reflect the court’s order updating the calculation of credit for time served, and it must be corrected accordingly.

Holding:

The abstract of judgment does not reflect defendant’s postsentence credits of more than 5,000 actual days announced by the court during the resentencing hearing. This is a clerical error. Courts may correct clerical errors at any time.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Amelioration, Sentencing

Case 000909

Posted on by Gary McCurdy

Error and/or relief

At a hearing pursuant to Penal Code section 1172.75, the court found the defendant ineligible for resentencing. Over the period during which the resentencing was being resolved, the defendant was released from prison and placed on parole. The court concluded that he was no longer eligible for relief because he was no longer serving a term of imprisonment.

The court erred in concluding that the defendant was no longer entitled to a resentencing hearing. We reverse and remand to the trial court with directions to hold a full resentencing hearing.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b), to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code. In 2021, SB 483 made this change retroactive.

It enacted what is now Penal Code section 1172.75, which declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054-1055

Second Holding:

Resentencing pursuant to section 1172.75 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.

The trial court must apply the sentencing rules of the Judicial Council as well as any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

In addition, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Fourth Holding:

Section 1172.75 requires that the defendant be incarcerated at the beginning of the process, when correctional officials identify those persons in their custody currently serving a term for a judgment that includes a now-invalid one-year prior prison term enhancement. It does not require the defendant thereafter remain incarcerated until the time of resentencing to maintain his or her eligibility for relief.

Nor is resentencing such a subsequently released defendant an empty exercise, as it can afford practical relief that includes shortening the applicable parole term. Thus, a person who has been released on parole prior to the resentencing hearing remains eligible and should still be resentenced.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057, 1061

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000908

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of three charges, including two counts of conspiracy. Under the circumstances in this case, he could be convicted of only a single count of conspiracy. We reverse the conviction on count 3.

First Holding:

The defendant was charged with explosion causing mayhem and great bodily injury in count 1, conspiracy to discharge a firearm from a motor vehicle in count 2), and conspiracy to commit assault with a firearm in count 3. Both conspiracy convictions both convictions arose from a single agreement and the single criminal objective of shooting the victim.

A defendant may be convicted of only a single count of conspiracy based on a single agreement. It is well settled that the essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. The gist of the crime of conspiracy is the agreement or confederation of the conspirators to commit one or more unlawful acts. The conspiracy is the crime, and that is one, however diverse its objects.

Authority:

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669

People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [One agreement gives rise to only a single offense, despite any multiplicity of objects]

Braverman v. United States (1942) 317 U.S. 49, 53

Second Holding:

Where a defendant argues the evidence was insufficient to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. This standard applies whether direct or circumstantial evidence is involved. The evidence presented in this case supports only that there was a single agreement to commit one shooting of the victim.

Authority:

People v. Prince (2007) 40 Cal.4th 1179, 1251

Third Holding:

That the single shooting may have violated two separate criminal statutes is immaterial.

Authority:

People v. Patrick (1981) 126 Cal.App.3d 952, 965 [noting that a single agreement to commit acts which, if completed, would constitute more than one substantive crime, is but a single conspiracy]

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 [Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes]

Fourth Holding:

If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. Here, because the maximum punishment for count 2 is seven years and the maximum punishment for count 3 is four years , count 3, having the lesser maximum term, must be reversed.

Authority:

PEN 182(a)

Probation Parole PRCS, Sentencing

Case 000907

Posted on by Gary McCurdy

Error and/or relief

The trial court is directed to prepare and send a certified copy of an amended abstract of judgment to the Department of Corrections and Rehabilitation, noting that the defendant’s [more than 500] days of excess presentence custody credit are to be applied to his parole period.

First Holding:

Any excess presentence custody credits that a defendant accrues must be applied to his parole period.

Authority:

PEN 2900.5(a) and (c)

People v. Morales (2016) 63 Cal.4th 399, 405

Second Holding:

The Department of Corrections and Rehabilitation and the Board of Parole Hearings determine when a defendant is discharged from parole, and any excess credits are taken into account. In an abundance of caution, we will direct the trial court to amend the abstract of judgment to note that the defendant’s excess credits shall be applied to his parole period.

Authority:

PEN 3000(b)

PEN 3001

Cal. Code Regs., tit. 15, secs. 2515, 2345, 2535–2537