Error and/or relief
On resentencing the defendant under section 1172.75, the trial court declined to consider dismissing a firearm enhancement, citing its desire not to get involved in changing the sentence of the original sentencing court and not to usurp the role of the parole board in assessing when defendant was ready for release. Because these rationales reflect an abdication of the court’s duty to exercise its sentencing discretion, we must reverse and remand for the court to exercise that discretion at a new, full resentencing.
First Holding:
The failure to exercise discretion is an abuse of discretion.
Authority:
People v. Bigelow (1984) 37 Cal.3d 731, 744
Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449
Second Holding:
Where, as here, a defendant was originally sentenced for a prior prison term enhancement that arose from a conviction that was not a sexually violent offense, that defendant is entitled to a full resentencing where that enhancement is to be stricken and where the trial court is to apply 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.
Authority:
People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 875
Third Holding:
The law regarding the 25 years-to-life firearm enhancement has changed since defendant’s original sentencing hearing in 2004: At that time, a trial court did not have discretion to dismiss that enhancement; since January 1, 2018, trial courts have had the power to dismiss firearm enhancements under section 12022.53 entirely or to substitute a lesser firearm enhancement in their place.
Authority:
PEN 12022.53
People v. Tirado (2022) 12 Cal.5th 688, 695-696
Fourth Holding:
Although we review a trial court’s discretionary sentencing decisions for an abuse of discretion a trial court abuses its discretion when it refuses to exercise that discretion. That is what happened here: What was supposed to be a full resentencing was merely a reaffirmation of a prior sentence and an abdication of discretionary decision-making to others whom the trial court believed were (or had been) better suited to the task. Section 1172.75 requires trial courts to get involved where, as here, the governing law has changed in a way that makes a lower sentence a possibility. What is more, section 1172.75 also enables a trial court to consider postconviction factors, which would be given no weight were a trial court to defer to the original sentence entered before any postconviction conduct comes to pass.
Authority:
PEN 1172.75
People v. Carmony (2004) 33 Cal.4th 367, 374
People v. Bigelow (1984) 37 Cal.3d 731, 744
People v. Rogers (2025) 108 Cal.App.5th 340, 361
Fifth Holding:
The presumption of regularity is rebutted when a trial court affirmatively indicates that it is not following the law.
Authority:
People v. Carter (2014) 227 Cal.App.4th 322, 324
People v. Panozo (2021) 59 Cal.App.5th 825, 839 [where the record is not silent, but rather is ‘at the very least ambiguous as to whether the court understood its statutory obligation, remand is appropriate]
Sixth Holding:
Upon remand, the court is to conduct the full resentencing mandated by section 1172.75. At that time, the court should calculate defendant’s actual custody credits from the date of arrest through the date of resentencing.
Authority:
PEN 2900.1
PEN 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]