Error and/or relief
On remand from a grant of habeas corpus reversing the conviction of attempt murder, it was error for the court to simply strike the punishment attached to that reversed count and fail to conduct a full resentencing. The trial court did not explicitly state it was recalling the defendant’s sentence under section 1172.1. However, the court’s actions at the 2023 hearing make clear that it did.
First Holding:
Courts generally lack jurisdiction to modify a defendant’s sentence once execution of the sentence has begun. Section 1172.1 provides an exception to that general rule. It states a trial court may, at any time upon the recommendation of the secretary of the CDCR or the district attorney, recall a defendant’s sentence and resentence the defendant in the same manner as if they had not previously been sentenced. When resentencing a defendant under section 1172.1, the trial court must consider postconviction factors and 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.
Authority:
PC 1172.1
People v. Karaman (1992) 4 Cal.4th 335, 344 [Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced]
People v. King (2022) 77 Cal.App.5th 629, 636–637
Second Holding:
After announcing the People were conceding the defendant’s motion for recall and resentencing, the court granted the prosecutor’s motion to dismiss the gang allegation under section 1385. Assuming the defendant’s judgment of conviction was final at the start of the hearing—as the trial court believed it to be—the court had authority to grant the People’s motion only if it first recalled the defendant’s sentence. In other words, the fact that the trial court granted the People’s motion to dismiss shows it first recalled the defendant’s sentence under section 1172.1
Authority:
PEN 1170.1
PEN 1385
People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8
People v. Kim (2012) 212 Cal.App.4th 117, 123
People v. Sek (2022) 74 Cal.App.5th 657, 666–667 [Assembly Bill 333 applies retroactively only to cases that are not yet final]
Third Holding:
By recalling the defendant’s sentence, the trial court effectively vacated the entire judgment, not just the portion related to the gang allegation. Therefore, the court was required to resentence the defendant on each count and enhancement in the same manner as if he had not previously been sentenced. The court also was required to apply changes in the law since the original sentencing.
Authority:
PEN 1172.1
People v. Arias (2020) 52 Cal.App.5th 213, 219 [the recall of appellant’s sentence effectively vacated his original sentence and commitment]
People v. Rogers (2025) 108 Cal.App.5th 340, 360 [recall of a defendant’s sentence nullifies the original sentence]
People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence]
People v. Buycks (2018) 5 Cal.5th 857, 893 [the “full sentencing rule” applies when a court recalls a sentence under former section 1170(d), a predecessor to section 1172.1]
Fourth Holding:
The court dismissed the gang allegation, but it did not orally pronounce a sentence on the murder conviction or the firearm enhancement, even by reference to the original sentence. Nor is there any indication that the court applied the changes to the law since the original sentencing.
Authority:
People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement]
People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 532 [at sentencing, the court must orally pronounce the term of imprisonment]
People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [trial court erred by failing to pronounce sentence on a count before staying its execution]
Fifth Holding:
The defendant did not forfeit his right to a full resentencing by failing to raise the issue in the trial court. Generally, a defendant must raise an issue in the trial court to preserve it on appeal. However, that general rule does not apply to an unauthorized sentence, which a defendant may challenge on appeal despite not objecting below. Here, the trial court recalled the defendant’s sentence, which effectively vacated his entire sentence. However, it never pronounced a new sentence on the murder conviction and firearm enhancement. The court’s failure to do so resulted in an unauthorized sentence.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 354
People v. Arias (2020) 52 Cal.App.5th 213, 219
People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court committed unauthorized sentencing error by failing to pronounce a sentence on a count before ordering it stayed]
Sixth Holding:
Even if the forfeiture rule applied, we would exercise our discretion to consider the issue on the merits in order to forestall an inevitable ineffective assistance of counsel claim.
Authority:
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts have discretion to consider issues not preserved for review]
People v. Monroe (2022) 85 Cal.App.5th 393, 399–400 [declining to apply forfeiture rule where defendant failed to object to the lack of full resentencing under section 1172.75]
Seventh Holding:
Where, as here, the defendant did not receive a full resentencing to which he was entitled, the proper disposition is to remand for a full resentencing. Accordingly, we remand the case for the trial court to resentence the defendant in accordance with section 1172.1. In doing so, the court must consider postconviction factors 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. When resentencing the defendant on remand, the court may not reinstate the gang allegation it dismissed under section 1385.
Authority:
PEN 1172.1
People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remanding case for resentencing where the defendant was entitled to, but did not receive, a full resentencing under section 1172.75]
People v. Saldana (2023) 97 Cal.App.5th 1270, 1278–1279 [same]
People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing]