Category Archives: Amelioration

Abstracts and Minutes, Amelioration, Sentencing

Case 001144

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court did not orally reimpose the $10,000 originally imposed more than 10 years earlier. The abstract of judgment, however, reflects the $10,000 fine previously entered. The abstract of judgment must be corrected.

First Holding:

A written recording of a judgment, such as a minute order or abstract of judgment, may not modify the judgment, and where there is a discrepancy between the oral pronouncement of judgment and a written record, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 389

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Second Holding:

A restitution fine older than 10 years must be vacated, and no unpaid balance may be collected.

(Gary note: I “made up” that second holding, although it is a correct statement of the law. Appellate counsel raised the argument, but the appellate court concluded that it did not need to reach the issue. For whatever reason, the trial court did not reimpose a restitution fine at all. Thus, the sole problem was the incorrect abstract of judgment. Nonetheless, I thought it might be useful to remind readers of section 1465.9.)

Authority:

PEN 1465.9(d)

Amelioration, Sentencing, Vicarious liability

Case 001143

Posted on by Gary McCurdy

Error and/or relief

In light of Morris, it was error to deny the defendant’s motion to recall his sentence under section 1172.6 based on the court’s conclusion that he was ineligible because the defendant was an aider and abettor to the underlying felony.

Holding:

In Morris, the court specifically held that an aider and abettor must aid the actual killer in the commission of the fatal act itself, not merely the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671

Gary note:

This opinion was very short, because it was a remand from the Supreme Court’s grant of review, held pending the decision in Morris. This opinion does not discuss Morris and relies simply on its own recognition and the concession by the People that the defendant was not ineligible for consideration under section 1172.6 as a matter of law.

Though not cited by the court in this opinion, you can get the gist of Morris by the Supreme Court’s statement in Morris on page 678, “We interpret the statutory language to mean just what it says: the phrase ‘aided … or assisted the actual killer in the commission of murder in the first degree’ requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” The language it was interpreting was in section 188(a)(3), that malice “shall not be imputed to a person based solely on his or her participation in a crime.”

Under section 189(e)(2), when a person was not the actual killer, that person must have, “with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.”

Amelioration, Sentencing, Sixth Amendment

Case 001142

Posted on by Gary McCurdy

Error and/or relief:

The court erred by denying defendant’s petition in violation of his constitutional right to be present at the evidentiary hearing. The order denying defendant’s petition is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing with defendant’s presence or with a valid waiver.

First Holding:

Sentencing and resentencing hearings are critical stages in a criminal proceeding. Courts have consistently held that a defendant has a right to be present at proceedings that are ‘akin to a plenary sentencing hearing. This includes proceedings necessary to determine factual questions bearing on the defendant’s eligibility for resentencing. The defendant’s presence significantly contributes to the fairness of the hearing as a matter of due process. Indeed, the court’s decision at the evidentiary hearing may well turn on disputed issues of fact about which the defendant—as a participant in the events in question—may well have had something to say.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532–534

People v. Basler (2022) 80 Cal.App.5th 46, 59

Second Holding:

If a defendant was not present at the evidentiar] hearing, the reviewing court must determine whether his or her absence was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536

Chapman v. California (1967) 386 U.S. 18, 24

Third Holding:

In line with Basler, Quan, and Jackson, we cannot say defendant’s absence from the hearing was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524,

People v. Basler (2022) 80 Cal.App.5th 46,

People v. Jackson (2025) 110 Cal.App.5th 128,

Fourth Holding:

In Basler, the court noted that the entire purpose of the resentencing hearing was for the court to consider whether to vacate the defendant’s conviction and recall the defendant’s sentence, including by reviewing the record and taking new evidence, if offered, on the issue of the defendant’s actions and mens rea.

For example, the defendant may have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence. Although the trial court may, or may not, have chosen to believe what the defendant might have said, if he said anything, the reviewing court could not conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.

Further, a defendant’s decision not to testify at trial is not dispositive on the prejudice suffered by his absence at the section 1172.6 evidentiary hearing, particularly given the new focus on a defendant’s mental state and the court’s ability to consider new or additional evidence on the point.

Authority:

People v. Basler (2022) 80 Cal.App.5th 46, 59-60

Fifth Holding:

In Quan, the court could not say beyond a reasonable doubt that depriving the defendant of the right to be present at the section 1172.6 hearing was harmless. The court noted the prosecution had the burden of establishing the defendant’s reckless indifference to life, which had an objective and subjective component. Thus, if the defendant was present, he could have addressed what he knew of his confederates willingness to kill in furtherance of their objectives, or the other relevant components of the crime.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536-537

Sixth Holding:

In Jackson, the court held remand was necessary partly because of the difficulty of evaluating trial records that are often decades old in the light of significant legal changes. The court explained that the arguments of counsel and the presence of the defendant can be critical to judges deciding these issues and to the fairness of the proceeding for the defendant. Where factual and legal issues must be resolved, a hearing enables the court to inform counsel and the parties of its tentative thoughts and allows them, in turn, to respond and potentially to present a different point of view, about both the significance of the evidence and how the law applies to it.

Authority:

People v. Jackson (2025) 110 Cal.App.5th 128, 153

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.

Amelioration, Sentencing

Case 001131

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in finding the defendant ineligible under section 1172.75 where punishment for the now-invalid prior prison term enhancement was struck by the trial court at the time of the original sentencing.

First Holding:

Before the year 2020, former section 667.5 of the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term the defendant had previously served for a felony. In an effort to reduce the societal and fiscal burdens of incarceration, the Legislature amended the Penal Code to eliminate these enhancements, except in cases involving prior terms for sexually violent offenses. It later made these changes retroactive.

The operative provision states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision section 667.5(b) is legally invalid (with an exception not pertinent in this case).

Authority:

People v. Espino (2026) 20 Cal.5th 57, 60

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. That resentencing must be a full resentencing, at which the trial 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.

The resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Regardless, the resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Espino (2026) 20 Cal.5th 57, 60

Third Holding:

The phrase ‘lesser sentence’ need not refer to a shorter sentence; rather, it can be understood to mean that the new sentence must eliminate whatever adverse effects flow from the now-invalid prior prison term enhancement, even if those effects do not take the form of a longer term of imprisonment.

Authority:

People v. Espino (2026) 20 Cal.5th 57, 62

Fourth Holding:

A true finding on a prior prison term allegation is a part of the sentencing order, even when the associated punishment is stricken. It follows that, as a matter of ordinary usage, an enhancement included in the sentence in a criminal case may be ‘imposed’ even if the punishment for that enhancement is stricken. Even punishment-stricken enhancements have potential adverse consequences should a court ever conduct a resentencing to correct other errors in the defendant’s sentence.

Authority:

People v. Espino (2026) 20 Cal.5th 57, 64-65

Fifth Holding:

The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because the punishment for the now-invalid prior prison term enhancement was struck at the original sentencing.

As explained by Espino, that reasoning was in error. The matter must be reversed and remanded with directions to the court below to hold a full resentencing hearing.

Authority:

People v. Espino (2026) 20 Cal.5th 57