Error and/or relief
1n 1991, for a crime committed in 1989, the defendant was sentenced to life without the possibility of parole (LWOP). When his case came up for resentencing under section 1172.75 in 2025, the court believed its only discretion was to impose less than the upper term on the determinate portion of his sentence. Defense counsel agreed. This was error. The court also erred in its calculation of credit for time served. And the restitution fine must be struck.
First Holding:
Prior to January 1, 2020, section 667.5(b) required trial courts to impose a sentence enhancement of one additional year for each of a defendant’s prior prison or jail terms. Section 1172.75(a) now provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b) is legally invalid.
Section 1172.75(b) and (c) mandate that the Department of Corrections and Rehabilitation identify eligible individuals whose sentences include now-invalidated section 667.5 enhancements, and that the trial court shall recall the sentence and resentence the defendant.
While conducting the resentencing, section 1172.75(d)(2), provides the express instruction that 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
People v. Rhodius (2025) 17 Cal.5th 1050, 1054
Second Holding:
Section 190.2(a) provides that where there has been a finding of certain enumerated special circumstances in connection with a defendant who has been found guilty of first degree murder, the penalty is death or LWOP. Section 1385 previously provided the trial court with the discretion to strike or dismiss the special circumstances.
Although the statute only authorizes such relief upon motion of the court or application of the prosecution, the defendant nevertheless has the right to invite the court to exercise its power by an application to strike a count.
Failure by a defendant to make such a request under section 1385 results in forfeiture of the issue. In the interests of justice, and in consideration of defendant’s alternative argument of ineffective assistance of counsel, we exercise our discretion to reach a question that has not been preserved for review by a party.
Authority:
PEN 190.2(a)
PEN 1385
People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141, 1144
People v. Coleman (2024) 98 Cal.App.5th 709, 724
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6
Third Holding:
Contrary to Section 1385, however, section 1385.1 provides that a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. The section was enacted as of June 6, 1990, via voter initiative Proposition 115. The dispute here centers around whether section 1385.1 serves as a bar to the trial court’s discretion to strike section 190.2 special circumstances when the court is resentencing a defendant pursuant to section 1172.75 for a pre-June 6, 1990, crime.
Authority:
PEN 1385.1
People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141
Fourth Holding:
Ordinarily, we review the trial court’s sentencing decisions for abuse of discretion. However, defendant argues pursuant to McDavid that the trial court necessarily abused its discretion when it failed to strike his special circumstances because it was unaware that it had any discretion to do so.
We therefore examine whether the trial court had any discretion in this regard, which is a question of statutory interpretation to be reviewed de novo.
Authority:
People v. Sandoval (2007) 41 Cal.4th 825, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730, 757
People v. McDavid (2024) 15 Cal.5th 1015, 1023
Fifth Holding:
The Nguyen court noted that section 1385.1 operates only prospectively, therefore, a trial court may dismiss a special circumstance allegation attached to any murders committed before June 6, 1990, the date that section 1385.1 became effective. Nguyen specifically relied upon Tapia.
In Tapia, Proposition 115 took effect while the defendant was in the process of being prosecuted for first degree murder. The defendant challenged the trial court’s decision to conduct voir dire pursuant to the new Proposition 115 procedures.
In examining whether Proposition 115’s provisions could be applied to crimes committed prior to its effective date after consideration of ex post facto concerns, the Supreme Court separated the provisions into four separate categories depending on their impact upon defendants.
Relevant to this inquiry, the high court expressly categorized section 1385.1 as falling within the category of provisions that change the legal consequences of criminal behavior to the detriment of defendants and therefore cannot be applied to crimes committed before the measure’s effective date.
Authority:
People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141
Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-287, 297
Sixth Holding:
The mandate in section 1172.75(d)(2), that the trial court apply any other changes in law that reduce sentences or provide for judicial discretion” evidences a legislative intent that defendants are to be treated with more leniency, not less, when being resentenced pursuant to this statute. Because the trial court clearly expressed more than once its belief that it did not have any discretion with respect to the LWOP sentence on Count 1, we deem the court to have abused its discretion and reverse.
Authority:
PEN 1172.75(d)(2)
People v. McDavid (2024) 15 Cal.5th 1015, 1023 [A court acting while unaware of the full scope of its discretion is deemed to have abused it.]
Seventh Holding:
The court court failed to award the defendant 2 days of credit for time served, and we modify the judgment accordingly.
(Gary note: The court did not cite any authority, but it seems obvious that the court has the power to modify the credit for time served to the correct number. I have cited authority the court could have relied on. The issue does not seem so much a matter of the trial court refusing to award credit; rather, it was a mathematical error. I speculate that perhaps the court did not award credit for the first day in custody. Counting days is different than determining the number of days between dates. From January 1 through January 31 is 31 days, counting. But if you subtract January 1 from January 31, you will realize only 30 days. For credit for time served, the correct number is the counting number–31 in my example.)
Authority:
PEN 2900.5
Eighth Holding:
As part of defendant’s original 1991 sentencing, the court ordered him to pay $10,000 to the state Restitution Fund pursuant to Penal Code section 1202.4 (formerly Govt. Code sec. 13967(a).) In light of section 1465.9, which compels that restitution fines older than 10 years be vacated, we vacate that fine. In Salstrom, the court determined that the reference to 10 years is from the date the restitution fine was originally ordered.
Resentencing does not reset the 10-year limitation. Applying section 1465.9 to reduce defendant’s sentence as part of a section 1172.75 resentencing hearing gives effect to both statutes.
Authority:
PEN 1465.9
People v. Giordano (2007) 42 Cal.4th 644, 652-653 [detailing the history of the restitution statutes]
People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601, review granted on unrelated issues, March 11, 2026, S295038
Mejia v. Reed (2000) 31 Cal.4th 657, 663 [when two codes are to be construed, they must be read together and so construed as to give effect, when possible, to all the provisions thereof]