Error and/or relief
The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.
First Holding:
Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. It shall not result in a longer sentence than the one originally imposed.
The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. 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:
PEN 1172.75
Second Holding:
Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.
Authority:
People v. Rogers (2025) 108 Cal.App.5th 340, 36
People v. Monroe (2022) 85 Cal.App.5th 393, 402
People v. Valenzuela (2019) 7 Cal.5th 415, 424-425
Third Holding:
Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.
Authority:
PEN 1172.75
People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]
People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]