Error and/or relief
The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.
The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.
The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.
Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.
First Holding:
Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the 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.
Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘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.”
Authority:
People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171
Second Holding:
Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.
The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.
A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.
Authority:
PEN 1172.1
Third Holding:
We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.
Authority:
People v. Craig (2026) 117 Cal.App.5th 1165, 1175
People v. Olea (2025) 115 Cal.App.5th 889, 902–903
Fourth Holding:
The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.
Authority:
People v. Craig (2026) 117 Cal.App.5th 1165, 1171
Fifth Holding:
Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.
Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.
Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.
The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.
Authority:
People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]
People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175
People v. Olea (2025) 115 Cal.App.5th 889, 901-902
Sixth Holding:
The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.
When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.
There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.
Authority:
PEN 1172.1(a)(3)(B)
People v. Mendoza (2022) 74 Cal.App.5th 843, 856
Seventh Holding:
The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.
Authority:
PEN 11465.9(d)
People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903
Eighth Holding:
The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.
Authority:
People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]
People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]
