The abstract of judgment reflects the wrong count of conviction, and must be corrected.
Section 1 of the abstract of judgment incorrectly states the defendant was convicted on count “04,” rather than count “03.” We order the trial court to correct that clerical error.
People v. Mitchell (2001) 26 Cal.4th 181, 185, 188
The record is ambiguous whether the trial court misunderstood its discretion to dismiss or strike an enhancement pursuant to Penal Code section 1385. Accordingly, we vacate the sentence and remand for resentencing.
Section 1385 governs a trial court’s discretion to dismiss various elements of an action or sentence. Under section 1385(a), the trial court may in furtherance of justice, order an action to be dismissed. This authority includes the power to dismiss or strike a sentencing enhancement.
Section 1385(b)(1) states that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. In other words, striking an enhancement is different from striking the punishment for the enhancement.
PEN 1385
People v. Thomas (1992) 4 Cal.4th 206, 209
People v. Tang (2025) 109 Cal.App.5th 1003, 1010
Prior to 2022, section 1385 did not provide direction as to how courts should exercise that discretion” to dismiss or strike enhancements. Effective January 1, 2022, SB 81 amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice.
SB 81 added subdivision (c) to section 1385, which now provides, in part:
(1) Notwithstanding any other law, 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.
(2) 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 enumerated mitigating circumstances 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.
As relevant here, the enumerated mitigating circumstances include that the current offense is connected to mental illness and the current offense is connected to prior victimization or childhood trauma.
PEN 1385(c)(2)(A) through (I) [a list of nine mitigating circumstances to be given great weight)
People v. Anderson (2023) 88 Cal.App.5th 233, 238
People v. Dain (2025) 115 Cal.App.5th 235, 246
Under section 1385(c), 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.
That is, 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. If a trial court dismisses an enhancement pursuant to section 1385(c), then both the enhancement and its punishment must be dismissed.
PEN 1385(c)
Cal. Rules of Court, rule 4.428(c)(3)
People v. Walker (2024) 16 Cal.5th 1024, 1029
We review a court’s sentencing choices for abuse of discretion. A defendant is entitled to a sentencing decision made in the exercise of informed discretion. We presume the court knows and applies the applicable law, absent evidence to the contrary. Where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion. Additionally, a record that is, at best, ambiguous about whether the court understood its sentencing discretion warrants remand.
(Gary note: The opinion then discusses how it concludes that the record is ambiguous on whether the court understood the scope of it discretion.)
People v. Nielsen (2026) 119 Cal.App.5th 816, 823
People v. Fuhrman (1997) 16 Cal.4th 930, 944
People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [Remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.]
People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853
The proper remedy is a remand for resentencing. Remand would be unnecessary if the record clearly indicated that the trial court would have reached the same conclusion even if it had been aware of its discretion. But we cannot conclude that the record here so clearly indicates such a result. That is, the record does not demonstrate with unusual clarity that remand would be an idle act.
People v. Fuhrman (1997) 16 Cal.4th 930, 944
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
People v. Flores (2020) 9 Cal.5th 371, 432
The presence of a mitigating circumstance enumerated in section 1385(c)(2) does not dictate that an enhancement should be dismissed. Instead, the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement.
This means that, absent a danger to 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.
People v. Walker (2024) 16 Cal.5th 1024, 1033
People v. Bravo (2025) 107 Cal.App.5th 1144, 1157
The defendant further argues that the court erred in limiting his conduct credit to 15% under section 2933.1 We reject the People’s contention that the defendant forfeited his claim of conduct credit error by failing to object below.
To the extent his claim could be forfeited, we would exercise our discretion to consider it because it involves a pure question of law presented by undisputed facts and to forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. However, given our disposition, we do not reach the merits of the defendant’s challenge to his conduct credit award.
People v. Hines (1997) 15 Cal.4th 997, 106
In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7
People v. Williams (2000) 78 Cal.App.4th 1118, 1126
At defendant’s resentencing hearing under section 1172.75, the court should have recalculated his credit for time served. The reimposed restitution fine should have been stricken, as it was imposed more than 10 years earlier.
The court failed to update the defendant’s credit for time served as of his resentencing. We remand for that purpose.
People v. Buckhalter (2001) 26 Cal.4th 20, 37
People v. Montalvo (1982) 128 Cal.App.3d 57, 62
The restitution fine imposed in 2013 should be stricken as it is more than 10 years old. Section 1465.9(d), effective January 1, 2025, 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. On remand, the court must vacate that order.
PEN 1465.9(d)
The trial court erred in denying the defendant’s motion under section 1473.7(a) to withdraw his no contest plea and vacate his conviction because he did not meaningfully understand the immigration-related consequences of his plea and that this was prejudicial
We reverse the order denying the defendant’s section 1473.7 motion. We remand the case to the trial court with directions to grant his motion, vacate his conviction, and permit him to withdraw his plea.
Section 1473.7 permits noncitizens who are no longer in criminal custody to seek vacatur of a conviction or sentence if they can show, by a preponderance of the evidence, the conviction or sentence is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
To obtain relief under section 1473.7(a)(1), a defendant must satisfy two elements. The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.
Next, the defendant must show that his misunderstanding constituted prejudicial error.
Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.
If the court finds the defendant has made both of these showings and has established that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization, it must grant the motion and allow the defendant to withdraw the plea.
PEN 1473.7
People v. Curiel (2023) 92 Cal.App.5th 1160, 1172
People v. Espinoza (2023) 14 Cal.5th 311, 319
People v. Vivar (2021) 11 Cal.5th 510, 529
We independently review a defendant’s entitlement to relief under section 1473.7(a)(1). In so doing, we exercise our independent judgment to determine whether the facts satisfy the rule of law.
We defer to the trial court’s factual findings to the extent they turn on the credibility of a witness’s live testimony. But when, as here, the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.
People v. Vivar (2021) 11 Cal.5th 510, 524-525, 527, 528
People v. Espinoza (2023) 14 Cal.5th 311, 320
A defendant establishes prejudice by showing that there is a reasonable probability that the person would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and the options for defending against those consequences.
A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.
Because immigration consequences may be more important to a noncitizen defendant than any term of incarceration, the focus of this inquiry is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.
People v. Hernandez (2026) 20 Cal.5th 598, 626
Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.
Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.
People v. Espinoza (2023) 14 Cal.5th 311, 320-321
A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.
(Gary note: The court then dug into the details of this particular case and determined that the defendant demonstrated by the requisite preponderance of evidence that he did not fully understand the immigration consequences because of incorrect advice by his attorney, and that had he been properly informed, there was a reasonable probability that he would not have entered that plea.)
People v. Espinoza (2023) 14 Cal.5th 311, 321
Whether the defendant could have secured a more favorable deal or prevailed at trial does not conclusively determine whether he established prejudice under section 1473.7. This is so because the focus is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.
Accordingly, our Supreme Court has explained that in evaluating whether a defendant would have rejected a plea on the hope or expectation of negotiating a different bargain without immigration consequences, we need not decide whether the prosecution would actually have offered a different bargain — rather, we should consider evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.
People v. Padron (2025) 109 Cal.App.5th 950, 964
People v. Vivar (2021) 11 Cal.5th 510, 528-529
(Gary note: This is not technically a holding or principle, but the Court of Appeal listed several cases where defendants with similar convictions were able to achieve surprisingly lenient, immigration-neutral sentences. I have included them below because they could prove useful comparisons on the the likelihood that a first degree burglary charge may be resolved in an immigration neutral manner.)
People v. Kim (2009) 45 Cal.4th 1078, 1085 [Defendant was convicted of first degree burglary, but imposition of sentence was suspended and he was sentenced to five years’ probation on the condition he serve 180 days in jail]
People v. Preston (2015) 239 Cal.App.4th 415, 420 [following defendant’s guilty plea to one count of burglary and one misdemeanor count of false representation of identity to a peace officer, the trial court suspended imposition of sentence and placed defendant on five years’ probation]
People v. Ulloa (2009) 180 Cal.App.4th 601, 603 [defendant convicted of first degree, residential burglary, receiving stolen property, and misdemeanor vandalism sentenced to three years of formal probation and 120 days in jail]
People v. Romero (2002) 99 Cal.App.4th 1418, 1423 [defendant convicted of first degree burglary and, contrary to probation officer’s recommendation of a two-year prison sentence, given 36 months’ probation and 180 days in jail]
The court erred in staying the greater firearm enhancement under section 654 in order to impose a lesser firearm enhancement, rather than striking it under section 1385.
After considering the defendant’s youth as a mitigating factor, the court chose to sentence the defendant on the firearm enhancement under section 12022.5(a) (for 10 years) instead of under section 12022.53(c) (punishable by 20 years). The court purported to stay the 12022.53(c) enhancement under section 654.
PEN 12022.5(a)
PEN 12022.53(c)
Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
PEN 654
In general, we review for abuse of discretion the trial court’s decision not to strike a sentence enhancement under section 1385(a). However, the trial court purported to stay the 20-year enhancement pursuant to section 654. Under Corpening, at step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo.
In Gonzales, the Supreme Court found that section 654 did not apply to whether the trial court properly stayed the punishment for the firearm enhancement at issue in that case. Although the trial court correctly stayed all of the prohibited firearm enhancements, it incorrectly issued those stays under section 654, which applies only to offenses punishable in different ways, not to prohibited enhancements committed in the commission of an unstayed offense.
Thus, the issue we resolve is one of statutory interpretation regarding the trial court’s interpretation of its authority to impose, stay, or strike firearm enhancements under sections 12022.53(c), 12022.5(a), and 1385.
People v. Mendoza (2023) 88 Cal.App.5th 287, 298
People v. Corpening (2016) 2 Cal.5th 307, 312
People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, fn. 5
The court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. Under the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court.
People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17
People v. King (2022) 77 Cal.App.5th 629, 635
The court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by section 12022.53.
(Gary note: The appellate court cited several passages from section 12022.53 that reflect that a LESSER enhancement may be stayed (rather than stricken) when both the lesser and the greater are found true, as only one can be imposed. It reviewed the language the trial court used in sentencing the defendant to the lesser firearm enhancement, and concluded that the intention of the trial court could only be carried out by striking the greater enhancement under section 1385, which is permitted by section 12022.53(h).)
PEN 12022.53(h)
PEN 1385