Category Archives: Amelioration

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

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

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Ledesma (2006) 39 Cal.4th 641, 716

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

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

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

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

Amelioration, Sentencing

Case: 000293

Posted on by Gary McCurdy

Error and/or relief

In 2022, the trial court resentenced the defendant under Penal Code section 1172.75, which invalidated prior prison enhancements, by striking the enhancements. The trial court, however, left intact the Three Strikes sentences. The court should have considered whether to reduce the sentence in line with the Three Strikes Reform Act.

Holding:

A trial court is required to apply the Three Strikes Reform Act of 2012 at a section 1172.75 proceeding absent a finding the defendant poses an unreasonable risk of danger to public safety.

Authority:

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

Amelioration, Discretion, Fines and fees, Sentencing, Standard of review

Case: 000292

Posted on by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the abstract of judgment must be amended to accurately reflect his actual custody credits, and several fines and fees must be reduced or vacated.

First Holding:

Effective January 1, 2022, section 1172.75(a) invalidated sentence enhancements imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5. With exceptions not relevant here, the statute requires that sentences that include these invalid enhancements be recalled and the defendant resentenced.

Authority:

PEN 1172.75

Second Holding:

We review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion. Section 1172.75(d), vests the superior court with broad discretion based on an inherently factual inquiry. Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Garcia (2024) 101 Cal.App.5th 848, 856–857

Third Holding:

An appellate court may not substitute its judgment about appropriate sentencing for that of the trial court, but instead must give due regard to the discretion vested in that court. The appellate court can find a reversible abuse of discretion only if it concludes that no reasonable judge would have agreed with the trial court’s decision. Unless that standard is met, the appellate court must affirm the decision, even if it might have ruled differentlyin the first instance.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 258

Fourth Holding:

The abstract of judgment reflects credit for time served but reflects 326 fewer days than the defendant is entitled to. It must be corrected to reflect the correct number of days.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Fifth Holding:

The trial court imposed a $30 criminal conviction fee on each count pursuant to Government Code section 70373. It also imposed a court operation fee of $40 per count pursuant to section 1465.8, subdivision (a)(1). However, Government Code section 70373 only applies to convictions after the statute’s January 1, 2009 effective date. Similarly, the court operations fee is only applicable to convictions after the statute’s 2003 operative date. Because the defendant suffered the convictions in 1995, the criminal conviction and court operations fees must be stricken.

Authority:

PEN 1465.8

People v. Davis (2010) 185 Cal.App.4th 998, 1000

People v. Alford (2007) 42 Cal.4th 749, 753, 754

Sixth Holding:

The restitution fine must be vacated, as it was imposed more than 10 years ago. 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

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

SeventhHolding:

The parole revocation fine must be reduced from $300 to $200. At the resentencing hearing, the court imposed a $300 restitution fine and imposed and stayed a $300 parole revocation fine. However, because the trial court originally imposed a $200 restitution fine, and the court may not impose a more severe punishment on resentencing, we agree with the parties that the stayed parole revocation fine must be reduced to $200, matching the originally imposed restitution fine.

Authority:

PEN 1172.75

Amelioration, Jurisdiction, Sentencing

Case: 000286

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court failed to consider the amendments under AB 333 to the elements of gang criminal activity and gang criminal enhancements. The trial court must first, however, determine whether the defendant’s name was on a list prepared by the Department of Corrections and Rehabilitation as being a person whose sentence includes a now-invalid enhancement for a prior prison term. If it is not, then the trial court has no jurisdiction to conduct a hearing under section 1172.75.

First Holding:

A trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. The Legislature may restore jurisdiction to the trial court by enacting a statute allowing defendants with final convictions to petition for resentencing, and indeed, has done so several times.

Authority:

People v. King (2022) 77 Cal.App.5th 629, 636

Second Holding:

The Legislature did not create a right for defendants to petition for resentencing in section 1172.75. Instead, it required the secretary of the CDCR and the county correctional administrator of each county to initiate the resentencing process by identifying those persons in their custody currently serving a term for a judgment that includes an invalid enhancement and providing the name of each person to the sentencing court that imposed the enhancement. Absent action by the CDCR, the trial court lacks jurisdiction to entertain a defendant’s motion for resentencing.

Authority:

People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448

People v. Burgess (2022) 86 Cal.App.5th 375, 381

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

People v. Cota (2025) 112 Cal.App.5th 1118, 1129-1131, review granted Oct. 1, 2025, S292637 [superior court has jurisdiction to resentence a defendant if the CDCR includes the defendant in a list of eligible inmates but fails to forward the list to the superior court]

Third Holding:

The record before us does not establish that the superior court had jurisdiction to resentence the defendant under section 1172.75. Any action taken without fundamental jurisdiction is void, not simply voidable. Prior to taking any further action on remand, therefore, the court must first determine whether the CDCR in fact placed the defendant’s name on a list of defendants potentially eligible for resentencing.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 71

Fourth Holding:

The full resentencing rule applies to proceedings under section 1172.75. Under this rule, the resentencing court has jurisdiction to modify every aspect of the sentence and may revisit all prior sentencing decisions . In particular, the court may consider any changed circumstances since the original sentencing hearing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 877

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Navarro (2007) 40 Cal.4th 668, 681

Fifth Holding:

The original sentence was based in part on the jury’s finding that the defendant committed the offenses for the benefit of a criminal street gang. Without that finding, his sentence for premeditated and deliberate attempted murder would have been life with the possibility of parole after having served seven years. Because of the gang finding, however, his sentence for attempted murder required that he serve at least 15 years prior to any parole.

AB 333 restricted the circumstances in which gang enhancements under section 186.22 apply. In resentencing proceedings under section 1172.75,the court shall apply any changes in law that reduce sentences, and the defendant argued that in light of the amendments to section 186.22, a retrial on the gang allegation is necessary. The trial court disagreed, concluding the gang enhancement has been found to be true and that a retrial was not warranted.

But AB 333’s substantive amendments to section 186.22 apply retroactively to defendants whose convictions are not final. Even if a defendant’s conviction became final years ago, if his sentence is vacated as a result of subsequent legislation, it becomes nonfinal for purposes of resentencing. Thus, assuming the court had jurisdiction to vacate the defendant’s sentence, he is entitled to benefit from the recent amendments to section 186.22 at resentencing.

Authority:

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

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

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

Amelioration, Discretion, Sentencing

Case: 000284

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court only struck the now-invalid enhancement, and ortherwise left the original sentence intact. Because the court based its decision not to dismiss enhancements on the mistaken belief defendant was eligible for elderly parole, we conclude the trial court abused its discretion such that defendant’s case must be remanded for a full resentencing.

First Holding:

Section 1385(c)(1) provides that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. Section 1385(c)(2) provides in pertinent part, that 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 nine 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.

Authority:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1032

Second Holding:

We review a trial court’s sentencing decisions under section 1385 for an abuse of discretion. When a sentencing court is unaware of its discretionary powers, it cannot exercise informed discretion. 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:

PEN 1385

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

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Third Holding:

The trial court mistakenly believed defendant was eligible for elderly parole. (See sec. 3055(g).) Defendant’s sentenced under the Three Strikes law are not eligible for elderly parole. This mistaken belief tainted the trial court’s interests of justice analysis, as it relied heavily on the possibility defendant could obtain parole at a later, but certain, date regardless of its decision to dismiss enhancements. Because the trial court was mistaken about parole, we are uncertain the court would impose an identical sentence given the correct understanding that defendant’s future parole eligibility rested with the trial court alone. Accordingly, defendant is entitled to a full resentencing under the proper standard.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419 [there must be clear indication the trial court would have reached the same conclusion with fully informed discretion]

People v. Buycks (2018) 5 Cal.5th 857, 893

Amelioration, Plea bargains, Sentencing

Case: 000282

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed an upper term sentence without an appropriate factual finding or stipulation as to an aggravating factor, as required by Penal Code section 1170(b). We conclude that the defendant may raise this issue even though he stipulated to the sentence as part of a plea bargain.

First Holding:

When the defendant entered his plea in 2020, the choice to impose a lower, middle, or upper term sentence was committed to the sound discretion of the court. But when the court ultimately entered judgment in 2024, following the passage of SB 567, a trial court was permitted to impose an upper term sentence only when aggravating circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. The defendant argues that, although he agreed to the sentence in his plea agreement, the change in the law renders his agreement to an upper term sentence invalid in the absence of an appropriate finding of or stipulation to aggravating circumstances. The circumstances in French differ from those here in potentially meaningful ways. Nonetheless, in light of the significant uncertainty in this area and the potential Sixth Amendment implications, we deem it appropriate to exercise our discretion to reach the merits of the defendant’s arguments.

Authority:

PEN 1170

People v. French (2008) 43 Cal.4th 36 [defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances]

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326–327 [exercising discretion to forgive forfeiture because the application of amended section 1170, subdivision (b) implicates a constitutional right, as recognized in People v. Lynch (2024) 16 Cal.5th 730]

Second Holding:

With respect to the merits, the People argue that because the defendant agreed to a specific term of imprisonment as part of his plea bargain, section 1170(b)’s sentencing procedures are irrelevant. As we have noted, this issue has been addressed in multiple Court of Appeal decisions and is now before the Supreme Court. We therefore dispense with offering significant additional analysis, except to say we are persuaded by the logic of the courts that have allowed defendants subject to stipulated sentences to seek the benefits of Senate Bill 567. Among other things, we think this best comports with Stamps, which is the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence.

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted February 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted April 26, 2023, S279154 [same]

People v. Stamps (2020) 9 Cal.5th 685

Third Holding:

In keeping with Stamps, if the defendant waives the requirements of amended section 1170(b), the trial court shall reinstate his original sentence. If he invokes the requirements of section 1170(b), he must state whether he stipulates to the facts underlying an aggravating circumstance justifying the imposition of the upper term on count 1 and the enhancement, or whether he desires a jury or bench trial on any aggravating circumstances alleged by the People. If he stipulates to the facts underlying an aggravating circumstance justifying the upper-term sentence, the trial court shall find that the upper term may be imposed on count 1. If he requests a trial, the People will have the burden proving beyond a reasonable doubt the truth of any alleged aggravating circumstance justifying the imposition of the upper term. If the factfinder finds an aggravating circumstance true, and the trial court determines the upper term can be imposed on count 1, the court shall reinstate the original sentence. If the People fail to prove the truth of an aggravating circumstance, the trial court shall find that the sentence on count 1 cannot exceed the middle term. At that point, if the court does not approve of the plea agreement with the reduced sentence or if the People do not agree to the reduced sentence, the court shall vacate the plea in toto and return the parties to their status quo ante.

Authority:

People v. Stamps (2020) 9 Cal.5th 685

(Gary note: Is Stamps still good law? Effective 1/1/2025, section 1171 was enacted to give courts guides on how to handle various amerliorative statutes. Take a look at 1171(c)(3) in this partial rendition of section 1171 (bold and italics by me):

(Penal Code section 1171[(a) For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
(…
((c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
(…
((e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
((f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.)

Amelioration, Sentencing

Case: 000278

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because his prior prison term enhancements were not executed. This was error.

Holding:

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:

PEN 1172.75

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000277

Posted on by Gary McCurdy

Error and/or relief

AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.

First Holding:

AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 25

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

People v. Lopez (2025) 17 Cal.5th 388, 395–396

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

People v. Sek (2022) 74 Cal.App.5th 664, 667

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

The trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial. This jury trial right is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Erlinger v. United States (2024) 602 U.S. 821

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 46

Amelioration, Duty of the court, Juveniles, Sentencing

Case: 000272

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded back to this course following an earlier appeal, for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261. We once again affirmed the judgment, but remanded the matter to the trial court with instructions to determine whether petitioner was entitled to a Franklin hearing. Petitioner’s appeal was not final until 2017, after Proposition 57 went into effect on November 9, 2016. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing

Holding:

Prop. 57 affords the right to a juvenile transfer hearing to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted. Prop. 57 applies to a sentence that was imposed prior to Prop. 57 but later vacated through a subsequent habeas proceeding. Here, petitioner’s case was directly filed in adult court before Prop. 57 was enacted, but his sentence was vacated through a habeas corpus petition subsequent to the effective date. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing. Respondent concedes this position. Thus, it is appropriate to grant the requested relief.

Authority:

People v. Superior Court of Riverside County (Lara) (2018) 4 Cal.5th 299, 304

People v. Padilla (2022) 13 Cal.5th 152, 159

Amelioration, Jurisdiction, Sentencing

Case: 000270

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for resentencing under section 1172.75. While review was still pending in the Supreme Court following the defendant’s appeal of his conviction, the trial court assumed jurisdiction and struck the prior prison term enhancement as directed by the Court of Appeal’s opiniion. More than a year later, the Calfiornia Department of Corrections and Rehabiltation advised that the defendant was on its list of inmates entitled to have their now-invalid prior prison term enhancements stricken. The court recalled the sentence under section 1172.75, but ultimately after the trial court discovered that it had already dismissed the now-invalid enhancement for a prior prison term, it concluded that the defendant was not eligible for resentencing. However, the trial court had no jurisdiction to strike the enhancement while the appeal was pending review in the Supreme Court.

First Holding:

Subject to limited exceptions, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Scarbrough (2015) 240 Cal.App.4th 916, 923

Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10

People v. Cunningham (2001) 25 Cal.4th 926, 1044

In re Lukasik (1951) 108 Cal.App.2d 438, 443

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

Because the trial court was without subject matter jurisdiction to strike the sentencing enhancements when it did [while the matter was still on appeal], the court’s order is void and vulnerable to direct or collateral attack at any time. Because the order striking the prior conviction enhancement is void, the only judgment that applied to defendant’s case was the original judgment that included the section 667.5 enhancement. The court therefore erred when it declined to resentence defendant by striking the section 667.5 enhancement during a new resentencing hearing.

Authority:

PEN 1172.75(c), (d)(1), (d)(2)

People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660

People v. Vasilyan (2009) 174 Cal.App.4th 443, 450

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

Amelioration, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to this section 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. Resentencing pursuant to section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the court 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:

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

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

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

People v. Dean (2024) 99 Cal.App.5th 391, 397