Error and/or relief
At a Penal Code section 1172.75 resentencing hearing, the appellant moved to dismiss one of his two prior strike convictions under Romero. In denying his Romero motion, the trial court erroneously found that the defendant was a “fourth striker.” We hold that it is reasonably probable that the trial court would have granted the defendant’s Romero motion had it not made this error. We therefore reverse the judgment and remand the matter to the trial court to reconsider the defendant’s Romero motion.
First Holding:
The Three Strikes law consists of two, nearly identical statutory schemes designed to increase the prison terms of repeat felons. In Romero, the Supreme Court held that the trial court may, in furtherance of justice, strike prior felony allegations in cases arising under the Three Strikes law pursuant to section 1385(a). At the section 1172.75 resentencing hearing in this case, the trial court was required to apply Romero and subsequent revisions to the Three Strikes law regarding enhancements.
Authority:
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 503, 504
Second Holding:
Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, SB 136 amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.
Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB 136 retroactive by adding what is now section 1172.75 to the Penal Code.
Authority:
PEN 1172.75
People v. Jennings (2019) 42 Cal.App.5th 664, 681
People v. Burgess (2022) 86 Cal.App.5th 375, 380
Third Holding:
Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 resentencing.
Authority:
People v. Rogers (2025) 108 Cal.App.5th 340, 345
Fourth Holding:
A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strike law’s sentencing scheme. The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike convictions; and (3) the defendant’s background, character, and prospects. If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant as though he had not previously been convicted of one or more serious and/or violent felonies.
Authority:
People v. Williams (1998) 17 Cal.4th 148, 161
Fifth Holding:
We review a trial court’s denial of a Romero motion for abuse of discretion.
Authority:
People v. Carmony (2004) 33 Cal.4th 367, 373
Sixth Holding:
The trial court denied the defendant’s Romero motion in part based on an erroneous belief that he was a fourth striker when he was actually a third striker. The trial court’s characterization of the defendant’s prior criminal record in denying Romero relief was erroneous and, accordingly, we conclude the trial court abused its discretion in denying the defendant Romero relief.
Regarding forfeiture, it is true that the defendant’s trial counsel did not object to the trial court’s mischaracterization of the defendant’s prior criminal record. We have discretion, however, to reach the merits of an argument that has not been preserved for review.
We exercise that discretion here because it is in the interests of justice to address the defendant’s meritorious contention. Had the court granted his Romero motion, this would have changed his sentence from an indeterminate term to a determinate one. By reaching the merits, we obviate the need to address the parties’ contentions regarding whether trial counsel was prejudicially ineffective by not objecting.
Authority:
People v. Williams (1998) 17 Cal.4th 148,v 161, fn. 6
People v. Monroe (2022) 85 Cal.App.5th 393, 400 [To forestall defendant’s ineffective assistance of counsel claim, we decline to find forfeiture under the circumstances of this case]
Seventh Holding:
Turning to whether the error was prejudicial, we conclude it was. When a trial court has given both proper and improper reasons for a sentencing choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.
A reasonable judge could have concluded the defendant’s purported fourth strike weighed strongly against granting Romero relief. Given comments by the judge in the record that favored the defendant, we conclude it is reasonably probable the court would have granted the motion had it known the defendant was a third striker and not a fourth striker. We remand for resentence.
Authority:
People v. Price (1991) 1 Cal.4th 324, 492