Category Archives: Amelioration

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000388

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.

First Holding:

When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

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

Second Holding:

AB 333’s changes to section 186.22 apply retroactively under Estrada.

Authority:

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

Third Holding:

AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. These changes also apply to the crime of active participation in a criminal street gang.

Authority:

PEN 186.22

People v. E.H. (2022) 75 Cal.App.5th 467, 479

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

People v. Rojas (2023) 15 Cal.5th 561, 565

Amelioration, Sentencing

Case: 000384

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for the trial court to determine whether the defendant’s 2010 conviction still constitutes a serious felony and strike in like of the application of AB 333.

Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. 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:

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

Amelioration, Retroactivity, Sentencing

Case: 000382

Posted on by Gary McCurdy

Error and/or relief

The court accepted the defendant’s admission to a single prior serious felony conviction and a prior strike conviction.These admissions were based on the defendant’s 2010 conviction for assault with a deadly weapon with a gang enhancement. The court sentenced the defendant as a second striker based on his admission that his 2010 conviction of aggravated assault with a gang enhancement constituted a strike. In light of AB 333’s modifications to the elements of PC 186.22 regarding gang criminal activity, the People concede, and we agree, that the defendant’s two-strike sentence must be vacated and the matter remanded for a possible retrial of his prior conviction allegations.

Holding:

AB 333 (2021–2022 Reg. Sess.) increased the evidentiary requirements for proving gang offenses and enhancements by amending section 186.22. The defendant’s prior convictions were based on his admission to the elements of section 186.22 as it read at the time of his plea. At that time, the prosecution was not required to prove—and the defendant did not admit—the elements newly required under AB 333. These heightened requirements apply when assessing whether pre–AB 333 convictions may be used for certain sentencing purposes.

Because the defendant’s prior convictions predated AB 333, the record does not establish they satisfy the amended statute’s more stringent requirements, and because this case is not yet final, the parties agree that the trial court’s true findings on the prior strike and serious felony enhancement must be vacated and the matter remanded for resentencing. If the prosecution elects to retry those allegations, the trial court must adjudicate them applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 608

Amelioration, Sentencing

Case: 000378

Posted on by Gary McCurdy

Error and/or relief

The court resentenced the defendant under section 1172.75 by striking the now-invalid prior prison term enhancements but concluded he was not eligible for further relief under the Three Strikes Reform Act of 2012. Reversed.

Holding:

Under section 1172.75, the court must resentence an eligible defendant. The resentencing must result in a lesser sentence than originally imposed unless the court is convinced by clear and convincing evidence that imposing a lesser sentence would endanger public safety. The court must 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.

Thus, the court must apply the ameliorative provisions of the Three Strikes Reform Act unless it finds that reduction would “pose an unreasonable risk of danger to public safety” as that phrase is construed in the context of Three Strikes Reform Act. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant] pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Amelioration, Fines and fees, Retroactivity, Sentencing

Case: 000376

Posted on by Gary McCurdy

Error and/or relief

At the 2024 resentencing hearing under section 1172.5 pertaining to the defendant’s 2007 conviction, the court imposed a $5000 restitution fine, reducing the $10,000 restitution fine imposed in 2007. Since 10 years had lapsed since the original imposition of a restitution fine, it must be vacated.

First Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Second Holding:

Section 1465.9(d), applies retroactively to the defendant’s reopened sentence. The restitution fine was first imposed nearly 20 years ago and is now unenforceable and uncollectible under section 1465.9(d).

Authority:

In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

People v. Jennings (2019) 42 Cal.App.5th 664, 681 [SB 136’s changes to section 667.5, former subdivision (b), applied retroactively to sentences that were not final at the time the law became effective]

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

 

Third Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer; (2) the person was not the actual killer, but, 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; (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

PEN 1172.6.

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create. As to the objective element,the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Tenth Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883

Amelioration, Sentencing

Case: 000372

Posted on by Gary McCurdy

Error and/or relief

It was error to conclude that the defendant was not eligible for resentencing under section 1172.75.. The court, the prosecutor, and the defense attorney all based their arguments and decisions on the understanding that the now-invalid prior prison term had been stricken by the appellate court in a prior appeal for reasons other than those eligible for striking under PEN 1172.75. The parties misunderstood the facts. While it is true that one prior prison term was stricken by the appellate court, there were two prior prison terms, only one of which had been stricken. Thus, when the defendant filed his PEN 1172.75 petition, he was eligible for resentencing, because he was a person described in PEN 1172.75.

First Holding:

(GARY NOTE: I decided to include this victory not so much because of its legal authorities so much as just a reminder of the importance of counsel to actually investigate the case. The parties all seemed to assume that there was one prior prison term, and that it had been stricken as a result of a prior appeal. As it happens, it was stricken because it had been used to enhance the sentence as both a prior serious felony under PC 667 and as a prior prison term under PC 667.5, whereas the law permits it to be used only once, per Jones. But the parties and the trial court missed the fact that the defendant had two prior prison terms, only one of which had been dismissed in the prior appeal.

(In my opinion, that should have been discovered far earlier than on the appeal from the denial of the PC 1172.75 petition because of a misunderstanding of the facts, particularly once the number of prior convictions became an issue when the prosecutor asserted that the defendant was not eligible. I do concede I do not know what occurred in and out of the lower court. But the Court of Appeal, which does not engage in investigation of matters outside the record on appeal, was able to determine the existence of the qualifying prior prison term just by reading the prior opinion from 2016, which states (in part and paraphrased), “The information also alleged that defendant suffered a conviction in case No. xxxxxxx, a serious felony conviction in case No. xxxxxx, and two prison convictions, one in case No. xxxxxxx, and one in case No. xxxxxx (Pen. Code, sec. 667.5(b).”)

Authority:

PEN 1172.75

People v. Jones (1993) 5 Cal.4th 1142, 1150

Second Holding:

It is unclear from the record as originally filed how the section 1172.75 proceedings had been initiated. Section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely by a defendant]

Third Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000370

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the defendant’s second petition for recall of sentence under section 1172.6 as successive, because there were changes in the statutory law between the first and the second. Remanded for the court’s consideration of the second petition.

Holding:

The defendant maintains that changes in statutory and decisional law after the denial of his first resentencing petition dictate that it not be accorded preclusive effect. On the merits, he argues that the jury’s verdict does not conclusively establish he is ineligible for relief as a matter of law. Asserting that his conviction for first degree murder may have been based on the felony murder rule, he contends he has made a prima facie case for relief and is entitled to an evidentiary hearing. The Attorney General appropriately concedes error.

Because there were several applicable changes to the law since the denial of appellant’s first petition, the second petition was not barred under principles of collateral estoppel. These include amendments to the statute limiting reliance on a prior appellate opinion to the procedural history of the case and providing that substantial evidence to support a murder conviction is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Further, caselaw has clarified that at the prima facie stage, a trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

PC 1172.6(d)(3)

People v. Jimenez (2024) 103 Cal.App.5th 994, 1005

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Lewis (2021) 11 Cal.5th 952, 972

Amelioration, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)

Amelioration, Sentencing

Case: 000366

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by: (1) refusing to strike a prior serious felony enhancement attached to the defendant’s conviction for one count of possession of a firearm after an associated gang enhancement was dismissed; and (2) maintaining an indeterminate sentence on that same count. Accordingly, we will vacate the sentence for that count, strike one of the associated serious felony enhancements, and remand for resentencing consistent with Penal Code section 667(e)(1).

First Holding:

The defendant was sentenced to a Three Strikes indeterminate sentence and the sentence was enhanced for a prior serious felony conviction. During the appeal from that conviction, AB 333 was enacted to change the elements of section 186.22 regarding the crime and enhancements for gang criminal activity. As a result of the opinion in Valencia we reversed the conviction for violation of section 186.22 in count 5, and the jury’s finding that defendant committed the attempted shooting at an occupied vehicle (count 1) and possessed a firearm (count 7) for the benefit of a criminal street gang.

We remanded to give the prosecution an opportunity to retry count 5 and the gang enhancement allegations on counts 1 and 7 under amended section 186.22. The trial court granted the prosecution’s motion to dismiss count 5 and the gang enhancement allegations as to counts 1 and 7. The court denied the defendant’s request to sentence the defendant to a determinate term and rejected his argument that the basis of the count 7’s status as serious felony had been undermined by AB 333, and it was no longer a serious felony to support either the five-year enhancement for his prior serious felony or as a third strike. The court erred. Count 7 was only considered a serious felony by reason of the jury’s true finding on the gang enhancement. With the gang enhancement out of the picture, count 7 could no longer be considered a serious felony.

Authority:

PEN 186.22

PEN 667

PEN 1192.7(c)(28)

People v. Valencia (2021) 11 Cal.5th 818

Second Holding:

Count 7 was only a serious felony by reason of the gang enhancement, which had been stricken. Therefore, he was not convicted in the current case of a third strike, and was subject to only a doubling of his sentence, not a life term.

Authority:

PEN 667

Amelioration, Elements of crime, Sentencing

Case: 000362

Posted on by Gary McCurdy

Error and/or relief

The record of conviction does not show as a matter of law that defendant is ineligible for resentencing under section 1172.6 on his murder and attempted murder convictions. The jury was instructed on the natural and probable consequence doctrine, and the record does not show the jury necessarily found all elements of murder and attempted murder under current law. We therefore reverse the trial court’s order denying defendant’s petition.

First Holding:

SB 1437, effective in 2019, the Legislature amended sections 188 and 189 of the Penal Code to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and to limit the scope of the felony-murder rule. Amended section 188 provides that except as stated in the amended section 189 governing felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The bill also added what is now section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Relief is potentially available for a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter .

Authority:

SB 1437

PEN 1172.6

People v. Lee (2023) 95 Cal.App.5th 1164, 1173

People v. Lewis (2021) 11 Cal.5th 952, 957

Second Holding:

The section 1172.6 petitioning process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 . If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. A defendant who petitions for resentencing under section 1172.6 is ineligible for resentencing only if the record conclusively establishes every element of the offense. In making that determination a court may give effect to a jury’s factual finding. If the petition survives the prima facie stage, the court must hold an evidentiary hearing at which the People bear the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by SB 1437.

Authority:

PEN 1172.6.

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

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Third Holding:

Under the jury instructions given at defendant’s trial, the defendant could have been found guilty even if not the slayer, because there was a second person who was the slayer. Additionally, the finding defendant personally discharged a firearm and proximately caused great bodily injury and death does not establish the defendant intended to kill or was aware of the danger to life that his act posed. In sum, the jury verdict does not show as a matter of law defendant harbored malice aforethought. Under the trial court’s instructions, the jury could instead have concluded defendant aided and abetted an assault with a firearm the natural and probable consequences of which was murder. Thus, the entire record of conviction does not foreclose that defendant was convicted based on a now invalid theory of murder.

Authority:

People v. Offley (2020) 48 Cal.App.5th 588, 598

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Fourth Holding:

Under current law, attempted murder requires intent to kill. We cannot conclude, as a matter of law, that the record of conviction shows defendant harbored intent to kill. The jury finding that the attempted murder was committed willfully and with premeditation and deliberation shows only that the slayer harbored this mental state. The jury does not further identify the slayer. Additionally, the fact defendant intended to discharge a firearm does not show the defendant harbored a particular mental state.

Authority:

People v. Morales (2024) 102 Cal.App.5th 1120, 1132

People v. Offley (2020) 48 Cal.App.5th 588, 598 [explaining that section 12022.53(d) provides that the defendant must have intended to discharge a firearm, but does not refer to an intent to achieve any additional consequence.]

Amelioration, Discretion, Sentencing

Case: 000361

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him on one of his nonserious felony counts under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life on that count to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

As a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. The case must be remanded for the superior court to determine whether sentencing the defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it is so determined, the superior court must reimpose the indeterminate term. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878

Second Holding:

The superior court did not have the benefit of Guevara, meaning that it was not fully aware of the scope of its discretionary powers when it resentenced the defendant. We remand for resentencing because the record does not clearly indicate that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425