Category Archives: Amelioration

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000520

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the defendant was entitled to have the trial court examine whether recent amendments under AB 333 to gang criminal activity statutes affected his conviction for carrying a loaded firearm in a public place by an active participant in a criminal street gang. Remanded.

First Holding:

Resentencing under section 1172.75 for a person serving a sentence containing a now-invalid prior prison term enhancement requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. When the trial court recalled defendant’s sentence under section 1172.75, it was effectively vacated. Once defendant’s sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Defendant, therefore, regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for purposes of Estrada. Under Estrada, ameliorative amendments to criminal statutes apply to all cases not final on appeal absent contrary legislative intent.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s] sentence effectively vacated his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163, 177 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

In re Estrada (1965) 63 Cal.2d 740, 744–745

Second Holding:

Effective January 1, 2022,AB 333 made several changes to the criminal street gang laws.

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.

And finally, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada.

Authority:

PEN 186.22

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

People v. Clark (2024) 15 Cal.5th 743, 753

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

Third Holding:

In determining whether a judgment is final for Estrada purposes, the finality inquiry focuses on whether the criminal prosecution or proceeding as a whole is complete, i.e., when the last word of the judicial department with regard to a particular case or controversy has issued.

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It is presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. AB 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

Fourth Holding:

Because AB 333 applies retroactively to all nonfinal judgments under Estrada, and defendant’s judgment is nonfinal by virtue of section 1172.75, defendant was entitled to the ameliorative effects of AB 333 at resentencing. The jury’s findings on the gang allegations made more than a decade prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Based on this record, we cannot conclude that error was harmless. Therefore, we remand for the trial court to determine, in the first instance, any effect the amendments have on defendant’s conviction on count 5 of an active participant in a criminal street gang carrying a loaded firearm in a public place.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396-400

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

Amelioration, Plea bargains, Sentencing

Case 000518

Posted on by Gary McCurdy

Error and/or relief

While defendant was on probation with an upper term suspended sentence, section 1170 was amended to preclude imposition of the upper term in the absence of aggravating factors found true beyond a reasonable doubt by a jury or by stipulation. On revocation, the court ordered execution of the upper term sentence. The sentence is reversed and the matter remanded for further proceedings at which the defendant may waive or invoke the requirements of section 1170(b). If he invokes its requirements, and the court is unable to impose the upper term in compliance with 1170, and the people or the court do not acquiesce to a term lower than the upper, the court must set aside the plea restore the parties to the status quo.

(Gary note: In this opinion, the court notes that there was a stipulated sentence as part of the plea agreement, and alludes to the Stamp rule that if the court and prosecutor are not happy with the resentencing, the plea should be set aside, restoring the parties to their status quo ante. But section 1171, effective 1/1/2025, may put the kibosh on Stamps and that line of reasoning. It was not discussed in this case. I have run across at least one unpublished opinion that seems to agree with me, which I have summarized as Case 000792, but it’s not due for posting yet. In that case, the district attorney apparently did not file a petition for review, but has asked the Supreme Court to grant review on its own motion.

(I’m not sure why the DA did not file a petition for review, because its request for the Supreme Court to grant review on its own motion was filed well before the deadline for filing a petition for review. (Any petition must be served and filed within 10 days after the Court of Appeal opinion is final, per rule 8.500(e)(1), which is normally 30 days after the opinion is filed. So while there are exceptions when there is a shorter period for finality, the deadline for filing a petition for review is 40 days after the date of the opinion. But even if no party files a petition for review within the time allowed, the Supreme Court can grant review on its own motion within a later deadline–within 30 days after the opinion in the lower court becomes final, per rule 8.512(c).) As of the writing of this summary, the Supreme Court has extended its deadline to October 21, 2026.

(Essentially, though, the court in Case 000792 said that Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing, and modification of the sentence does not require setting aside the plea bargain. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

(In the context of dealing with ameliorative provisions (including but not limited to “sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75”), section 1171(c)(3) says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The appellate court in Case 000792 held that the trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement.)

First Holding:

SB 567 amended section 1170 to limit the trial court’s ability to impose the upper term by making the middle term the presumptive prison term unless specified circumstances exist. When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in section 1170(b)(2). The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those 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.

Authority:

PEN 1170(b)

Second Holding:

The only question before us is an issue currently pending before the California Supreme Court: whether a defendant whose sentence was imposed pursuant to a stipulated plea agreement may seek relief under Senate Bill No. 567. This is an issue that has split the Courts of Appeal, including divisions within this court.

[Gary note:  The Mitchell case cited by the Court of Appeal as shown in Authority as on review was decided In May 2026, People v. Mitchell (2026) 19 Cal.5th 729.  The Supreme Court remanded the case to the Court of Appeal (which recently remanded it to the trial court) to allow the defendant to take advantage of the amelioration despite his stipulated sentence, but it followed its decision in Stamps that if the prosecution or the lower court is not happy with the modified judgment, the plea must be set aside and the parties restored to their status prior to the plea bargain.  

[But the Supreme Court’s Mitchell decision contains a footnote, which I lay out here:  “Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “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.” (sec.1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

[Section 1171 expressly applies to ameliorative statutes, and does not identify section 1170 as an ameliorative section, but it says its list of “such as” statutes is not a limitation to its application.  I suspect–and that’s ALL it is, just pure speculation–that the Supreme Court was not ready to deal with section 1171 so late in the Mitchell appeal, and would prefer to see it battled out in the superior courts and Courts of Appeal before it takes on the issue.  That way it would have the benefit of perhaps many different approaches before it has to reach the proper conclusion.]

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26, 2023, S278690 [same]

People v. Todd (2023) 88 Cal.App.5th 373, 376, review granted Apr. 26, 2023, S279154 [defendant entitled to remand]

People v. Fox (2023) 90 Cal.App.5th 826, 830 [same]

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1056, review granted Feb. 21, 2024, S283452 [same]

Third Holding:

We independently review issues of statutory construction. As ever in statutory interpretation, w]e begin with the text of the relevant provisions. If the text is unambiguous and provides a clear answer, we need go no further. If the language supports multiple readings, we may consult extrinsic sources, including but not limited to the legislative history and administrative interpretations of the language.

Authority:

People v. Fox (2023) 90 Cal.App.5th 826, 831 (review granted)

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057 (review granted) [Gary note: see my note in Second Holding]

Fourth Holding:

That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them. A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.

A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. These statutory provisions are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.

Authority:

PEN 1016.8

People v. Stamps (2020) 9 Cal.5th 685, 701

Fifth Holding:

The relevant question here is not whether the sentencing judge is bound by the parties’ stipulated sentence, but whether the defendant is entitled to the ameliorative effect of SB 567’s new sentencing provisions. The defendant is entitled to the benefit of the change in the law under section 1170. But because he agreed to the upper term in his plea bargain, if the court were to reduce his sentence to any lesser sentence, the People will have been denied the benefit of its bargain.

A limited remand is appropriate to allow the court to determine whether it may impose the upper term in compliance with the new provisions of section 1170. If it determines that it may, then the sentence of six years may be imposed. Otherwise, if the defendant declines to stipulate to factors in aggravation supporting the upper term, the plea bargain must be set aside and the parties restored to their status quo, unless the prosecution and the court are willing to accept the lower sentence.

Authority:

People v. Todd (2023) 88 Cal.App.5th 373, 380-382, review granted Apr. 26, 2023, S279154

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

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that 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 is legally invalid. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

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

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, 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.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

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

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000499

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.

First Holding:

Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).

Authority:

PEN 1172.75

Second Holding:

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

Authority:

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

Third Holding:

Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.]

Amelioration, Elements of crime, Sentencing

Case 000493

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support the trial court’s reckless indifference finding. Accordingly, we will reverse the trial court’s order denying the petition for resentencing and remand the matter with directions to grant the petition, vacate defendant’s murder conviction, and resentence him. Under the circumstances, we need not address whether defendant was a major participant or whether the trial court applied the correct standard.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule to provide, in relevant part: 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:

SB 1437

PEN 189

Second Holding:

Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty of murder under California law as amended by SB 1437. The parties may rely on evidence in the record of conviction or offer new or additional evidence at the hearing. The trial court acts as an independent fact finder and determines whether the evidence establishes beyond a reasonable doubt that the defendant would be guilty of murder under the amended sections 188 and 189 and, therefore, ineligible for relief under section 1172.6.

Authority:

SB 1437

PEN 1172.6

People v. Cody (2023) 92 Cal.App.5th 87, 110

Third Holding:

Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. We must review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Montanez (2023) 91 Cal.App.5th 245, 270

Fourth Holding:

The major participation and reckless indifference requirements contained in capital case special circumstances section 190.2(d), and incorporated into the felony-murder rule by SB 1437, codify the holding of Tison and a prior decision on which it is based, Enmund, collectively place conduct on a spectrum. At one end of the spectrum is a defendant like Enmund, who planned and participated, as the getaway driver, in an armed robbery that resulted in the unplanned murder of the robbery victim and his wife.

At the other end of the spectrum are “actual killers and those who attempted or intended to kill. In between are defendants like the Tison brothers, who helped plan and carry out the escape of two convicted murderers from prison, including their father, who was serving a life sentence for killing a guard in the course of a previous escape. The Tison brothers brought a cache of weapons to prison, armed both murderers, and held at gunpoint guards and visitors alike. During their subsequent escape, they carjacked and kidnapped a family of four, took the family’s possessions, and the convicted murderers then killed all four family members. Although the Tison brothers did not kill or intend to kill, their major participation in the felony committed, combined with reckless indifference to human life, was sufficient to satisfy the Enmund culpability requirement.

Authority:

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

Enmund v. Florida (1982) 458 U.S. 782,

People v. Banks (2015) 61 Cal.4th 788, 794, 799, 800, 802

Fifth Holding:

Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. Although the major participation and reckless indifference elements are interrelated such that the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life, significant participation does not necessarily establish reckless indifference, which encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.

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 SB 1437 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, 883, 884

People v. Banks (2015) 61 Cal.4th 788, 801

People v. Clark (2016) 63 Cal.4th 522, 615

Tison v. Arizona (1987) 481 U.S. 137, 153

Sixth Holding:

In determining whether defendant acted with reckless indifference, we analyze the totality of the circumstances using the following factors derived from Clark: (1) Did defendant know that a weapon would be used during the felony? (2) Was defendant present during the murder and did he have an opportunity to restrain the perpetrator or aid the victim? (3) What was the duration of the interaction between the perpetrators of the felony and the victim? (4) What was defendant’s knowledge of his confederate’s propensity for violence or likelihood of using lethal force? (5) What efforts did defendant make to minimize the risk of violence during the felony? With the foregoing factors in mind, we conclude substantial evidence does not support the trial court’s finding that defendant acted with reckless indifference to human life.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

People v. Emanuel (2025) 17 Cal.5th 867, 884-88

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

Case 000481

Posted on by Gary McCurdy

Error and/or relief

Denial of the petition for recall of sentence under section 1172.6 is reversed, and the matter is remanded for the court to redetermine whether petitioner acted with reckless indifference to human life, taking into consideration his youth at the time of the offense. We also conclude substantial evidence does not support the court’s finding that petitioner aided and abetted the murder with intent to kill and the denial of the petition therefore cannot be upheld on this alternative ground.

First Holding:

Although petitioner briefly argued in the superior court that his youth should be considered in the court’s analysis of whether he was a major participant in the underlying felony and acted with reckless indifference to human life, the superior court did not address this argument. Indeed, the superior court may have felt compelled to conclude, based on the state of the law at the time, that petitioner’s youth was not a relevant factor, given that petitioner was a young adult at the time he committed the offense and not a juvenile.

We continue to find there was substantial evidence for the trial court to conclude that the defendant acted with indifference of human life, but pending this appeal, there have been cases that squarely hold that the court should consider youth of a nonjuvenile in that determination.

If we do not address this issue, petitioner may be able to file a second petition for resentencing in the superior court to have the court consider his youth as part of the totality of circumstances bearing on whether he acted with reckless indifference to human life. In the interests of justice and for the sake of judicial economy, we address this argument on the merits. We conclude that petitioner is entitled to a new evidentiary hearing to apply new law relating to the effect, if any, of his youth on the court’s reckless indifference finding.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1008

Second Holding:

We review the court’s findings for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that petitioner acted with reckless indifference.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

Third Holding:

In the first stage of this appeal–before review was granted and the matter was transferred back to this court–petitioner raised the argument (that the court should take into consideration the defendant’s youth) in his reply brief for the first time. Ordinarily, we do not consider issues raised for the first time in a reply brief. As such, this argument was not addressed in our prior opinion.

Authority:

In re Luke H. (2013) 221 Cal.App.4th 1082, 1090

Fourth Holding:

During the pendency of this appeal, the appellate court in Jones addressed the relevance of youth to the reckless indifference finding in a case involving a young adult who was 20 years old at the time of the offense.

Authority:

People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

Fifth Holding:

In Oliver, the appellate court assumed, without deciding, that the trial court was required to consider the petitioner’s youth (23 years of age) in reference to the petitioner’s mental state, but held that its failure to do so was harmless under the standard of Watson

Authority:

People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 and fn. 8

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

Sixth Holding:

In Pittman, the court applied the Watson standard and concluded there was a reasonable possibility the failure to consider the petitioner’s youth impacted the trial court’s decision. The court noted inferences of immaturity could be drawn from the fact that the petitioner was 21 years old when he participated in the attack with two peers who were 16 and 17 years old. Additionally, the crime suggested the participants acted impulsively, under the influence of rashness, and while intoxicated. Thus, the court determined the interests of justice were best served by remanding for the court to consider whether youth impacted the petitioner’s ability to form the requisite mental state for second degree murder.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417-418

Seventh Holding:

In Jiminez, the appellate court agreed that there had been a significant change in the law governing young adult offenders since the ruling on the first petition, and therefore the doctrines of collateral estoppel and law of the case did not apply. In this regard, the court noted that early cases addressing this issue of a petitioner’s youth applied only to juvenile offenders under the age of 18, and only to the major participant and reckless indifference findings.

Thereafter, however, the law was expanded to hold that youth was a consideration for other mental state requirements, including implied malice, and additionally expanded to include young adults who were in their late teens and early 20’s when they committed the crimes. Additionally, the Legislature had enacted similar changes to a variety of statutes to expand youth-related considerations to persons 25 years of age and younger. The court also determined that the error in failing to consider the petitioner’s age was not harmless under the Watson standard.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004

Amelioration, Sentencing

Case 000477

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court failed to conduct a full resentencing because it limited resentencing to only one of the several cases consolidated into an aggregate sentence. The defendant had been sentenced in the 1990s in two separate sentencing hearings involving multiple cases. Only one of the cases was enhanced by a now invalid prior prison term enhancement. That case made him eligible for resentencing under section 1172.75. The trial court conducted a resentencing hearing under section 1172.75 on only that single case, and declined to resentence on the others. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the late 1995 aggregate sentence.

First Holding:

Section 1172.75(a) provides thatany sentence enhancement that was imposed prior to January 1, 2020, 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Once the California Department of Corrections and Rehabilitation (CDCR) identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant. Here, defendant’s sentence was subject to recall and resentencing because the CDCR identified his now invalid prison prior.

Authority:

PEN 1172.75(b), (c)

Second Holding:

On recall of his sentence, defendant was entitled to a full resentencing that included all aspects of his aggregate sentence. By its plain terms, section 1172.75 requires a full resentencing not merely that the trial court strike the newly invalid enhancements. Section 1172.75(d)(2) specifies that the court shall 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.

When a sentence is subject to recall, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. Where there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices. This includes an aggregate prison term, which is not a series of separate, independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Walker (2021) 67 Cal.App.5th 198, 206

People v. Coddington (2023) 96 Cal.App.5th 562, 568

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

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Third Holding:

Defendant’s sentence is an aggregate prison term comprised of five separate cases. Even though defendant only referenced the one of the 1995 sentences instead of both of the 1995 sentences, the trial court mistakenly believed it was limited to resentencing defendant on the narrow portion of his sentence that included the prison prior. Defendant’s sentence contains interdependent component parts from multiple cases. Therefore, the court erred by treating the portion of the sentence with the invalid prison prior as an independent, separate term, rather than an integral part of the whole and reconsidering every aspect of the sentencing scheme as required. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the later 1995 aggregate sentence.

Authority:

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware of the scope of its discretionary powers, 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.

In applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 776

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Walker (2024) 16 Cal.5th 1024, 1029

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

People v. Carmony (2004) 33 Cal.4th 367, 378

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

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

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

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

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Third Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

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

People v. Arellano (2024) 16 Cal.5th 457, 468

People v. Mares (2024) 99 Cal.App.5th 1158, 1166

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.

Authority:

PEN 1172.6(c)

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

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

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Fourth Holding:

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

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

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]