Category Archives: Amelioration

Amelioration, Sentencing

Case: 000247

Posted on by Gary McCurdy

Error and/or relief

The defendant is not eligible to have a full resentencing under section 1172.75 because no now-invalid prior prison term enhancement had ever been imposed, a pre-condition for invocation of section 1172.75. The abstract of judgment must be corrected because it erroneously indicates that the enhancement for the prior prison term was stayed, when it is clear from the record that the court actually struck the enhancement rather than impose and stay it.

First Holding:

Appellate courts may exercise their authority to correct clerical errors, including correcting an abstract of judgment and may strike statements in the abstract to conform with the court’s oral pronouncement. Because the trial court explicitly stated, “The court is likewise going to strike the 667.5(b) prison prior,” the enhancement should not have been listed in the abstract of judgment, and we have the authority to order the abstract’s correction without requiring an accompanying resentencing. We order that correction accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

People v. Zackery (2007) 147 Cal.App.4th 380, 388

Second Holding:

The question in this case was left open by the Supreme Court in People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2 and, as is discussed below, is factually distinguishable from the issue to be decided in People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted October 23, 2024, S286987, which hinges on the “imposition” of a stricken prison prior enhancement’s punishment. Pending briefing before the Supreme Court is limited to the following issue: “Is a defendant entitled to resentencing under Penal Code section 1172.75 when the judgment in the defendant’s criminal case includes a prior-prison-term enhancement that was imposed but for which punishment was stricken?” (Espino, S286987, Supreme Ct. Mins., July 30, 2025.)

[Gary Note: Espino was decided by the Supreme Court on July 2, 2026. It did firmly hold that section 1172.75 applies when the punishment for a now-invalid prior prison term enhancement was stricken, not merely stayed as it was in Rhodius. Footnote 1 of the Supreme Court opinion in Espino seems to make it clear that it was not deciding the issue that arose in this Case 000247. Footnote 1: “Our decision in Rhodius also left open whether a prior prison term enhancement is “imposed” (sec. 1172.75(a)) “when an enhancement, not just its associated punishment, [is] stricken” (Rhodius, supra, 17 Cal.5th at p. 1066, fn. 2). As that question is not at issue in this case, we do not address it.”

I can tell you that a petition for review in this case (the one for which this is the summary, 000247) was denied a few months ago, before Espino was decided. It seems it will take a different case to convince the Supreme Court to decide whether a person is eligible for relief under section 1172.75 in cases where the court struck the enhancement itself (and thus had nothing on which to impose and either stay or strike punishment.)]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2

People v. Espino (2024) 104 Cal.App.5th 188, 194 (review granted 10/23/24, S286987

People v. Espino (2026) ___ Cal.5th ___ (S286987, decided July 2, 2026)

Amelioration, Fines and fees, Juveniles, Retroactivity

Case: 000243

Posted on by Gary McCurdy

Error and/or relief

Because of legislation enacted since the disposition hearing, the $100 restitution fine is ordered stricken in this Welfare and Institutions Code section 602 juvenile proceeding.

Holding:

While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now states that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Welfare and Institutions Code section 602. Because the judgment is not final, the appellant is entitled to the ameliorative benefits of this amendment.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740

Amelioration, Duty of the court, Sentencing

Case: 000242

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to update the credits for time served, and awarded only the credits allowed at the original sentencing 12 years earlier. This was error, and the matter is remanded for the trial court to recalculate the proper credits as of the date of the resentencing hearing.

Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 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]

Amelioration, Sentencing

Case: 000239

Posted on by Gary McCurdy

Error and/or relief

Here, where the petition was facially sufficient, it was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage without appointing counsel and without a hearing. The trial court in this case appointed no counsel, conducted no hearing, and did not consider briefing, arguments of either party, or any other portion of the trial record, which necessarily informs the prima facie inquiry. On this record, with multiple participants in the shooting incident, as well as the jury’s instruction on the natural and probable consequences doctrine, a theory of implied malice, we cannot say it would be a waste of judicial resources to send the case back to the trial court to conduct its obligations under section 1172.6.

First Holding:

Effective January 1, 2019, the Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. It also added section 1170.95, now section 1172.6, to provide a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Thereafter, it expanded the path to resentencing under the law to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723-724

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

A petition under section 1172.6 that includes a declaration by petitioner that the petitioner is eligible for relief , based on all the requirements of section 1172.6, subdivision (a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558-559

Third Holding:

The prima facie inquiry is limited A petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. Indeed, in assessing petitions from individuals convicted after a jury trial, the jury instructions will be critical. The record of conviction also includes documents such as verdict forms. If the record [of conviction, including the court’s own documents, contains facts refuting the allegations made in the petition, then ‘the court is justified in making a credibility determination adverse to the petitioner. The court may deny the petition at the prima facie stage only if the record of conviction conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971, 974

People v. Strong (2022) 13 Cal.5th 698, 720 [factfinding is prohibited at the prima facie stage]

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Patton (2025) 17 Cal.5th 549, 563

People v. Gallardo (2024) 105 Cal.App.5th 296, 301

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

People v. Hickman (2025) 110 Cal.App.5th 1262, 1268

Amelioration, Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000232

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for mental health diversion because substantial evidence did not support the court’s conclusion that his mental illnesses were not a significant factor in the commission of the underlying offenses.

First Holding:

In 2018, the Legislature enacted provisions to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

PEN 1001.35

PEN 1001.36

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

Section 1001.36 provides that a defendant is eligible for pretrial diversion if the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert, and the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

If the defendant is eligible, the court also must determine whether the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. Therefore, we review a trial court’s factual findings in support of its ruling for substantial evidence.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Fourth Holding:

The trial court failed to apply the presumption that, given the timely diagnoses of mental health disorders, the mental condition contributed to his behavior. The burden then was on the prosecution to rebut the presumption by producing clear and convincing evidence tha there was no causal connection.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fifth Holding:

However, while eligibility and suitability are preconditions, mental health diversion remains discretionary even if they are met. Because of the existence of this residual discretion, the proper remedy is to remand with instructions for the trial court to consider both eligibility and suitability, along with making relevant findings, in accordance with the current law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Abstracts and Minutes, Amelioration, Sentencing

Case: 000231

Posted on by Gary McCurdy

Error and/or relief

The jury’s true finding in 2023 that the defendant suffered a prior serious felony and strike offense based on a past gang related conviction was error. We vacate the prior serious felony and strike conviction and remand for retrial and resentencing. Further, the abstract of judgment must be corrected because it reflects a conviction for first degree robbery when it should be second degree robbery.

First Holding:

In 2021, the Legislature amended the law prohibiting criminal gang activity law. In many respects, it changed the elements of a section 186.22 offense that the prosecution here did not prove. For a pre-AB 333 section 186.22 offense to qualify as a prior serious felony and strike offense, the prosecution was required to prove that the defendant’s past conduct met the post-AB 333 section 186.22 elements.

Authority:

PEN 186.22

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 582-583

Second Holding:

The abstract of judgment must be corrected.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate court could have cited]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000214

Posted on by Gary McCurdy

Error and/or relief

After the defendant was convicted, but before the judgment became final, AB 333 was enacted, and its application in defendant’s case. We vacate the gang enhancement allegation findings under section 186.22(b), and remand the matter to the trial court to permit the People to elect to retry the gang enhancements or, if the People do not so elect, for the trial court to proceed with resentencing petitioner in conformance with this opinion.

Holding:

AB 333 made substantial changes to the elements of criminal gang activity. These changes apply retroactively to all cases not yet final on the effective date of AB 333, January 1, 2022. A defendant is entitled to relief under AB 333 if an appellate court affirmed the judgment, but sentencing issues were pending upon remand as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

People v. Lopez (2025) 17 Cal.5th 388

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the factual allegations were proved. If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Third Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

Amelioration, Discretion, Sentencing, Standard of review

Case: 000210

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s sentence and remand for full resentencing. The trial court abused its discretion when declining to fully strike the firearm enhancement or strike it and impose a lesser firearm enhancement. The trial court errantly focused only on the defendant’s past and present danger to public safety, and not whether striking the enhancement would endanger public safety in the future. The trial court erred in deciding whether striking the enhancement would endanger public safety because, as the record of the sentencing hearing indicates, it focused solely on defendant’s past conduct and the circumstances of the murder. In the context of section 1385, the key question is forward looking—whether striking the enhancement would likely endanger public safety. Thus, even if the trial court struck the enhancement, the defendant would still be serving an indeterminate 15-to-life term with parole eligibility subject to the Parole Board and Governor’s review. The trial court must consider this future-looking issue for purposes of public safety.

First Holding:

A trial court’s decision not to dismiss an enhancement pursuant to section 1385 is reviewed for abuse of discretion. An abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard. A court acting while unaware of the scope of its discretion is understood to have abused it.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Tirado (2022) 12 Cal.5th 688, 694 [reminding that a defendant is entitled to sentencing decisions made by a court exercising informed discretion]

Second Holding:

Effective January 1, 2022,Penal Code section 1385 was amended to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. It reads, in part, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so …. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” Subparagraphs (A) to (I) list nine distinct mitigating circumstances, including, as is relevant here, subparagraph (C) where the application of an enhancement could result in a sentence of over 20 years. Subparagraph (C) states in this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

People v. Sek (2022) 74 Cal.App.5th 657, 674

Third Holding:

Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence. For a defendant facing a lengthy indeterminate sentence, the inquiry should also take into account that the defendant’s release from prison is contingent on review by the Board of Parole Hearings (and for murder convictions, by the Governor), who will have the opportunity to assess the defendant’s dangerousness at that time. This future review will act as a safety valve against a release that would endanger the public and is relevant to a trial court’s analysis of whether the dismissal of an enhancement imposed on a defendant serving an indeterminate prison term will endanger public safety.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

 

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000207

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. Defendant’s sentence is vacated, and this matter is remanded for further proceedings to include the option to retry the allegation and for resentencing.

First Holding:

Effective January 1, 2022, the Legislature enacted AB 333 to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 576

People v. Fletcher (2025) 18 Cal.5th 576, 586

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Though the prior conviction of what purported to be a serious felony was sustained in 2014, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

APeople v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

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. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall 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

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674