Error and/or relief
On resentencing the defendant under section 1172.75, the trial court failed to pronounce sentence on two of the counts. This was error. Also, the court must recalculate the defendant’s credit for time served.
First Holding:
Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.
Once the Department of Corrections and Rehabilitation identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant.
By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A recall effectively vacates the defendant’s original sentence and commitment.
Authority:
PEN 1172.75
People v. Monroe (2022) 85 Cal.App.5th 393, 399, 402
People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]
People v. Rogers (2025) 108 Cal.App.5th 340, 360
Second Holding:
The resentencing under section 1172.75 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In resentencing, the court shall apply the sentencing rules of the Judicial Council and 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:
PEN 1172.75(d)(1)
Third Holding:
In a criminal case, judgment is rendered when the trial court orally pronounces sentence. If a sentence of imprisonment is to be imposed the sentencing judge must pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.
At a sentencing hearing, the court must orally pronounce the sentence on the record. Since the court recalled defendant’s sentence under section 1172.75, it effectively vacated his original sentence and thus should have orally pronounced all components of the sentence on the record at the resentencing hearing.
Authority:
Rules of Court, rule 4.433(c)(5)
People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9
People v. Mesa (1975) 14 Cal.3d 466, 471 [Rendition of judgment is an oral pronouncement]
Fourth Holding:
There was also an error in the sentencing, in that the sentence on one count was a life term, but the count was not a serious felony and should have been sentenced as a determinate term.
It is well established that when the trial court pronounces a sentence that is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.
Authority:
People v. Benton (1979) 100 Cal.App.3d 92, 102
Fifth Holding:
The trial court should recalculate defendant’s custody credits on remand.
Authority:
PEN 2900.5(d)
People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody.]