Error and/or relief
On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.
First Holding:
Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.
Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.
Authority:
1172.5
People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062
Second Holding:
Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.
This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.
Authority:
People v. Padilla (2022) 13 Cal.5th 152, 163
People v. Buycks (2018) 5 Cal.5th 857, 893
People v. Lopez (2025) 17 Cal.5th 388, 392
In re Estrada (1965) 63 Cal.2d 740, 744–745
People v. Tran (2022) 13 Cal.5th 1169, 1206‒1207
Third Holding:
A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.
A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.
In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.
Authority:
People v. Garcia (2024) 101 Cal.App.5th 848, 856
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
Fourth Holding:
When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391