Error and/or relief
After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.
First Holding:
The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.
Authority:
PEN 1172.75
People v. Monroe (2022) 85 Cal.App.5th 393, 402
People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]
Second Holding:
Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
In re Estrada (1965) 63 Cal.2d 740
People v. Burgos (2024) 16 Cal.5th 1, 28
Third Holding:
If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Sek (2022) 74 Cal.App.5th 657, 669
United States v. Tateo (1964) 377 U.S. 463, 465
Fourth Holding:
If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.
Authority:
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41