Error and/or relief
The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.
(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)
First Holding:
Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.
In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.
Authority:
PEN 1172.1
People v. Olea (2025) 115 Cal.App.5th 889, 896-897
Second Holding:
Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.
Authority:
PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]
People v. Brinson (2025) 112 Cal.App.5th 1040, 1046
People v. Olea (2025) 115 Cal.App.5th 889, 896-897
People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]
Third Holding:
Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.
Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.
Authority:
People v. Brinson (2025) 112 Cal.App.5th 1040, 1046
People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]
Fourth Holding:
The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.
Authority:
People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]
Fifth Holding:
(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)
Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.
We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.
Authority:
People v. Espino (2026) 20 Cal.5th 57
People v. Rhodius (2025) 17 Cal.5th 1050, 1067