Category Archives: Amelioration

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

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

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second 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. 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(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

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

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

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

In re Estrada (1965) 63 Cal.2d 740, 745

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

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

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply 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

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Amelioration, Duty of the court, Sentencing

Case: 000125

Posted on by Gary McCurdy

Error and/or relief

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility. We therefore remand the matter for a new evidentiary hearing under section 1172.6(d). At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.

First Holding:

The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by SB 1437.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Second Holding:

The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt. A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 294-296

People v. Harden (2022) 81 Cal.App.5th 45, 51

Amelioration, Duty of the court, Sentencing

Case: 000122

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. The People concede both of these points. We vacate the defendant’s sentence, and remand for a full resentencing with directions to recalculate the credit for time served.

First Holding:

Even where the defendant is serving a sentence under the Three Strikes law, on recall the trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety.

Authority:

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

Second Holding:

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 (whether in jail or prison) up to that time, including time in custody after the original sentencing.

Authority:

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

Amelioration, Duty of the court, Sentencing

Case: 000120

Posted on by Gary McCurdy

Error and/or relief

The defendant submitted both a petition for writ of habeas corpus and a motion for recall and resentencing under section 1172.6. The trial court erroneously treated both as a petition for writ of habeas corpus, which it denied without prejudice to allow the defendant to separately file a petition under section 1172.6. Though contained in the same envelope and assigned a single case number by the court clerk, there were two separate matters presented to the trial court. The matter is remanded for the trial court to give due consideration to the petition/motion filed for recall of sentence under section 1172.6. There is also an error in the abstract of judgment that should be corrected, depending on the outcome of the hearing on the petition.

First Holding:

The record indicates that defendant submitted not only a petition for writ of habeas corpus, but also a separate motion for resentencing. The title page of the habeas petition states it was being filed concurrently with a motion for recall and resentencing pursuant to section 1172.6. Defendant included a separate section 1172.6 “motion” with its own title page and caption designating it as such. That defendant, a prisoner, mailed the documents in one envelope as opposed to two, and placed his “motion” for resentencing before the exhibits to the petition for writ of habeas corpus, does not change the fact he submitted a separate “motion” to the court. As for the assignment of only one case number—for the habeas proceeding—this was a clerical matter over which defendant had no control. The trial court was required to consider the motion/petition filed under section 1172.6.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960 [where resentencing petition complies with the three facial sufficiency requirements of sec. 1172.6(b), the court proceeds to consider whether the petitioner has made a prima facie case for relief under subd. (c)]

Second Holding:

The abstract contains an error on whether the two counts were ordered served concurrently or consecutively. Should the trial court determine defendant is ineligible for relief pursuant to section 1172.6, we direct the trial court to issue an amended abstract of judgment that corrects this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment]

Amelioration, Sentencing, Statutory interpretation

Case: 000119

Posted on by Gary McCurdy

Error and/or relief

Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75. We reverse and remand for resentencing.

Holding:

A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term.

Authority:

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

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Amelioration, Sentencing, Statutory interpretation

Case: 000116

Posted on by Gary McCurdy

Error and/or relief

The defendant petitioned for recall and resentencing pursuant to section 1172.75. The question before us is whether section 1172.75 entitles the defendant to a resentencing hearing even though the prior prison term enhancements were stricken for the purposes of sentencing. We agree with defendant that he is entitled to resentencing pursuant to section 1172.75.

First Holding:

Section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing.

Authority:

PEN 1172.75

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

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Amelioration, Sentencing

Case: 000112

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in finding the defendant was ineligible for a full resentencing hearing under section 1172.75, because his judgment includes a now-invalid prison prior and thus the court’s order must be reversed. [At the original sentencing, the court had imposed and stayed the one-year prior prison term.]

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:

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

Abstracts and Minutes, Amelioration, Sentencing, Standard of review, Statutory interpretation

Case: 000106

Posted on by Gary McCurdy

Error and/or relief

The trial court modified the defendant’s sentence only to the extent required under sections 1172.75 and 1170.18, but otherwise left the balance intact, finding that the defendant remained a danger to the public. The case is remanded for the trial court to calculate the days of actual custody and to correct the abstract of judgment.

First Holding:

Because the sentence was modified under PC 1172.75, the trial court erred in not calculating the actual days in custody.

Authority:

PEN 2900.1

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

Second Holding:

We review the trial court’s finding that imposing a lesser sentence would endanger public safety under the clear and convincing evidence standard.

Authority:

PEN 1172.75(d)(1)

Third Holding:

The clear and convincing evidence standard requires the party with the burden of proof to convince the trier of fact that it is highly probable the facts which he asserts are true.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Fourth Holding:

The narrow definition of danger to public safety under PC 1170.18 does not apply to the undefined term of the Three Strikes Reform Act of 2012. [GARY NOTE: after the opinion in this case 000106 was filed, the Supreme Court ruled in Guevara that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable risk to public safety” within the meaning of section 1170.126 (enacted by initiative) in order to reconcile the application of section 1172.75 (enacted by the Legislature) to those who would otherwise qualify but are serving a sentence under the Three Strikes Law (an initiative provision).]

Authority:

People v. Valencia (2017) 3 Cal.5th 374, 374-375

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

Fifth Holding:

The abstract of judgment incorrectly reflects a determinate term of 14 years instead of 10 years, and it must be corrected. [GARY NOTE: The court did not cite authority, most likely because the error and solution are obvious. There are many relevant cases supporting this holding, some of which I have set out below.]

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

People v. Price (2004) 120 Cal.App.4th 224, 242

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

People v. Jones (2012) 54 Cal.4th 1, 89

Amelioration, Sentencing, Standard of review

Case: 000098

Posted on by Gary McCurdy

Error and/or relief

The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.

First Holding:

Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.

Authority:

PEN 1172.6

Second Holding:

Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives.

Authority:

PEN 1172.6

Third Holding:

We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing.

Authority:

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

Fourth Holding:

Since the decision to appoint counsel is not discretionary, we review that without deference as well.

Authority:

Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review, Statutory interpretation

Case: 000095

Posted on by Gary McCurdy

Error and/or relief

Because the superior court applied an incorrect legal standard in deciding whether to dismiss the five-year enhancement, we reverse the judgment and direct the court to exercise its discretion whether to strike that enhancement and to resentence the defendant.

First Holding:

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223

Second Holding:

We conclude the superior court erred by applying an incorrect legal standard in denying the defendant’s request to dismiss the five-year enhancement for the prior serious felony. Section 1385 provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so. It also provides that, in exercising its discretion, the court must consider and afford great weight to evidence offered by the defendant to prove any of nine listed mitigating factors, unless the court finds that dismissal of the enhancement would endanger public safety. If the court does not find dismissing an enhancement would endanger public safety, the court must consider whether the defendant has presented evidence of one or more of the mitigating factors listed in section 1385. If so, the court must engage in a holistic balancing with special emphasis on the [nine] enumerated mitigating factors and must dismiss the enhancement unless the court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1033, 1036

Third Holding:

Without the benefit of Walker, decided several months after the resentencing, the superior court did not apply the correct legal standard. It did not find that reducing the sentence by five years would endanger public safety. Nor did it consider dismissing the prior conviction that was more than five years old, instead relying on the fact that the original court found the prior conviction to be true. By deferring to the original trial court on whether to strike the serious felony conviction enhancement, the superior court ignored section 1172.75’s mandate to apply changes in law that reduce sentences or provide for judicial discretion. In 2015 the trial court had to impose the five-year prior serious felony enhancement under section 667, subdivision (a)(1), but effective 2019, SB 1393 gave trial courts discretion to strike that enhancement under section 1385. In addition, section 1172.75 authorized the superior court to consider postconviction factors, such as the defendant’s disciplinary record and rehabilitation while in prison, his age, and his physical condition—factors not available to the trial court in 2015.

Authority:

People v. Carter (2023) 97 Cal.App.5th 960, 968 [simply striking the one-year enhancement imposed under the repealed portion of former section 667.5(b) deprived the defendant of his right to full resentencing under the changes in the law]

People v. Coddington (2023) 96 Cal.App.5th 562, 567 [court erred by failing to provide the defendant with a full resentencing hearing, meaning a hearing in which he could have sought further sentencing relief under at least two other statutes that were enacted after his conviction]

People v. Rogers (2025) 108 Cal.App.5th 340, 361

Fourth Holding:

The superior court’s error was prejudicial because the record does not clearly indicate the court would have reached the same conclusion had it applied the correct legal standard.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424 [where the trial court fails to 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]

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

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remand was required where the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion]

Fifth Holding:

On remand, the superior court should consider whether dismissing the prior serious felony enhancement and reducing the defendant’s sentence from 25 years six months to 20 years six months would endanger public safety. If the court does not make that finding, it should dismiss the enhancement, unless it finds substantial, credible evidence of countervailing factors that neutralize the great weight of any applicable mitigating circumstance enumerated in section 1385(c)(2), including that the enhancement was based on a prior conviction that was more than five years old.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 230-231 [in assessing whether dismissing an enhancement would endanger public safety, the trial court should have considered the date on which the defendant could be released if the enhancement was dismissed, not only whether the defendant currently posed a danger to the public]

Sixth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856

Seventh Holding:

In reviewing matters of statutory interpretation we review the trial court’s decision de novo.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Braden (2023) 14 Cal.5th 791, 804 [The interpretation of a statute presents a question of law that this court reviews de novo]

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case: 000092

Posted on by Gary McCurdy

Error and/or relief

The clerk of the superior court is directed to correct the abstract of judgment to reflect that the court did not impose any prior-prison-term enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed to forward copies of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

First Holding:

As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.

Authority:

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

Second Holding:

Effective January 1, 2020, SB 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, sec. 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (sec. 667.5(b)).

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

Third Holding:

Effective January 1, 2022, SB 483 made the change retroactive to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

Fourth Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken.

Authority:

PEN 1172.75

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

Fifth Holding:

An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground.

Authority:

People v. Battle (2021) 11 Cal.5th 749, 800

Sixth Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

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

Seventh Holding:

The abstract may be corrected at any time when it does not reflect the oral pronouncements.

Authority:

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