Category Archives: Duty of the court

Case 001097

Error and/or relief

Following resentencing under section 1172.75, the court erred in not recalculating the defendant’s credit for time served.

Holding:

The trial court must calculate actual custody credits and include any such credits in the new amended abstract of judgment. Time served in custody shall be credited at resentencing when a judgment is subsequently declared invalid or is modified during the term of imprisonment. It is the duty of the court imposing the sentence to determine the total number of days to be credited.

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Garner (2016) 244 Cal.App.4th 1113, 1118 [a judgment must include a custody credit award that includes time spent in prison prior to the resentencing hearing leading to this appeal]

Case 001096

Error and/or relief

The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.

The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.

First Holding:

Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.

In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides 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 as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

Second Holding:

When a defendant is being resentenced under section 1172.75, a resentencing 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.

At resentencing, 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.

The court shall appoint counsel to represent a defendant at resentencing proceedings.

Authority:

PEN 1172.75(d)(2), (d)(3), (d)(5)

Third Holding:

The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.

Authority:

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

Fourth Holding:

Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.

Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.

Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Case 001094

Error and/or relief

The court erred in denying the defendant’s oral motion for relief under the Racial Justice Act (RJA).

First Holding:

It is a violation of the RJA for the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or a juror to exhibit bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin or, during the defendant’s trial, in court and during the proceedings, to use racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibit bias or animus toward the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

A defendant may file a motion alleging a violation of subdivision (a). If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing, at which the defendant bears the burden of proving an RJA violation by a preponderance of the evidence.

Subject to exceptions inapplicable in this case, if the court finds an RJA violation by a preponderance of evidence, the court shall impose an enumerated remedy specific to the violation. If judgment has yet to be entered, one remedy is to reduce one or more charges. After judgment has been entered, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a).

Authority:

PEN 745

Second Holding:

The defendant argues that the trial court erred to the extent it denied his RJA motion because it was brought orally rather than by written, noticed motion. Addressing this issue of statutory interpretation de novo, we conclude the RJA does not preclude the possibility of making an oral motion. Accordingly, the court erred to the extent it denied the motion for being brought orally.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 41

Third Holding:

In interpreting a statute, our goal is to ascertain the Legislature’s intent to effectuate the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. If the language is unambiguous, the plain meaning controls. The words, however, must be construed in context, so we look to the entire section as well as the statutory framework as a whole in deciding what a word or provision means, and we attempt to harmonize terms where possible. We may reject a literal construction that is contrary to the legislative intent apparent in the statute or that would lead to absurd results.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Murphy (2001) 25 Cal.4th 136, 142

Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519

Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230

Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27

Fourth Holding:

The statutory language here is ambiguous. Section 745 does not say a defendant “must file” a motion; instead, it is permissive. But nor does the statute say that a defendant “may make” an oral motion. We therefore look to legislative findings made in support of the RJA to discern the Legislature’s intent.

When statutory language is ambiguous, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and contemporaneous administrative construction. Because uncodified findings of legislative intent are voted upon by the entire legislative body, enrolled and signed by the Governor, they may be entitled to somewhat greater weight than traditional legislative history materials.

(Gary note: Regarding the reference to “uncodified findings” in the last sentence above, Assembly Bill 2542 (2019-2020 legislative session), which enacted the Racial Justice Act, contains a few sections in the bill that were not codified, meaning they do not appear in any of California’s codes, such as the Penal Code.

(Depending on the wording, the uncodified language may or may not have the force of law. For example, section 7 of the bill directs that certain portions of the bill are effective only if a different specified bill is enacted and becomes effective by a specified date. Section 7 thus carries the force of law.

(But section 2 of the bill contains 10 findings made by the Legislature that led to its passage of the RJA. In roughly 1,329 words. Some of the findings relate the existence and effects of racism–intentional or otherwise–and others state something like “It is the intent of the Legislature that ….” Those findings and statements of intent probably do not technically carry the force of law, but may be considered by the courts in interpreting the statutes that were enacted.

(The trial court then discussed the various aspects of the findings that led it to conclude that “Given the expansiveness of the Legislature’s purpose in enacting the RJA, it is appropriate to construe the legislation liberally in favor of affording defendants an opportunity to raise potential RJA violations through an oral motion.” It cautioned, however, that it may not be the best practice to raise the motion orally, as it may create confusion over what, exactly, is being asserted.)

Authority:

People v. Woodhead (1987) 43 Cal.3d 1002, 1008

Young v. Superior Court (2022) 79 Cal.App.5th 138, 157

Fifth Holding:

In the course of the hearing, counsel appeared to concur that the proper standard was proof by preponderance of the evidence, rather than the much lower standard at the prima facie stage. Though it is not clear what standard the court applied, it erred in excluding hearsay evidence. Hearsay is not per se excludable under the RJA. The court should have considered whether the proffered hearsay “trustworthy and reliable” before excluding it.

By concluding the evidence before it was double hearsay, the court failed to consider the totality of the proffered facts in assessing whether the defendant made a prima facie showing. On this record, we conclude the defendant made such a sufficient showing at the prima facie stage. We thus reverse and remand with instructions to hold an evidentiary hearing under the RJA.

Authority:

PEN 745(c)(1)

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Sixth Holding:

The people argue that application of the higher standard was invited error, as counsel concurred. The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at defense counsel’s behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.

But for the doctrine to apply, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In cases involving an action affirmatively taken by defense counsel, courts have found a clearly implied tactical purpose to be sufficient to invoke the doctrine.

It is not sufficiently clear on this record that counsel had a tactical purpose. It supports the conclusion that counsel simply misunderstood certain details of the RJA when he brought the oral motion. For example, he characterized the motion as a post-judgment motion. But it was prejudgment, though it was presented after the jury verdict. In a criminal case, judgment is rendered when the trial court orally pronounces sentence. Here, the sentencing had not yet happened when the RJA motion was made, so no judgment had been entered.

In light of counsel’s apparent misunderstandings, we conclude that the invited error doctrine is inapplicable. In any event, its application is discretionary, not automatic.

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025) para. 8:248.13

Seventh Holding:

We review de novo a determination that an RJA movant has failed to make a prima facie showing. A defendant makes a prima facie showing if the defendant produces facts that, if true, establish that there is a substantial likelihood that an RJA violation] occurred.

A substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not. The court should should not make credibility determinations at the prima facie stage. It should accept the truth of the defendant’s allegations unless they are conclusory, unsupported by the evidence presented in support of the claim, or demonstrably contradicted by the court’s own records.

On this record—with these principles in mind and considering the totality of the proffered facts—we conclude that there is more than a mere possibility that an RJA violation occurred. The defendant has therefore made a prima facie showing of one or more RJA violations and is entitled to an evidentiary hearing.

Authority:

PEN 745(h)(2)

PEN 745(c)

People v. Howard (2024) 104 Cal.App.5th 625, 650

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Case 001075

Error and/or relief

The trial court erred in imposing and staying enhancements under section 12022.7(e) on counts 2, 3, and 4, and under section 12022.7(a) on count 2, because the jury did not find those allegations true.

Holding:

In their appellate briefing, the parties agree that the trial court erred in imposing and staying enhancements under section 12022.7, subdivision (e) on counts 2, 3, and 4, and under section 12022.7, subdivision (a) on count 2, because the jury did not find those allegations true. In keeping with the parties’ concessions, we strike these four enhancements.

Authority:

Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.]

Case 001073

Error and/or relief

The trial court applied an incorrect legal standard in denying relief on the defendant’s petition for relief under section 1203.4. We remand to enable the trial court to determine whether defendant is still on probation for another offense, which would affect her present eligibility for relief

First Holding:

The defendant filed a motion for dismissal of her conviction under section 1203.4, having previously successfully been discharged from probation early (she had completed all of the terms of her probation, which the trial court at the hearing on her motion for early discharge from probation expressly found to be very commendable). The trial court denied the petition for relief under 1203.4 on the basis that it was too soon after her probation was terminated.

A person is eligible for section 1203.4 relief if she proves that (1) (a) she has fulfilled the conditions of probation for the entire period of probation, (b) she has been discharged prior to the termination of probation, or (c) it is otherwise in the interest of justice to grant relief, and (2) she is not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense.

Authority:

PEN 1203.4(a)

People v. Holman (2013) 214 Cal.App.4th 1438, 1459

People v. Johnson (2012) 211 Cal.App.4th 252, 263 [burden of proof on applicant for relief]

Second Holding:

Although a court retains discretion whether to grant relief in the third, interests of justice scenario, relief is mandatory and must be granted in either of the first two scenarios—assuming the defendant meets the additional requirement that she is not serving a sentence, on probation, or charged with an offense at the time of her petition.

Because relief in this scenario is mandatory, the trial court’s stated concerns about defendant having only been off probation slightly over a year and relief being not in the interest of justice have no bearing on the propriety of relief.

Authority:

People v. Butler (1980) 105 Cal.App.3d 585, 587

People v. Guillen (2013) 218 Cal.App.4th 975, 1001

People v. E.B. (2020) 51 Cal.App.5th 47, 54

Third Holding:

Early termination of probation for reasons other than good conduct does not qualify as a discharge from probation

Authority:

People v. Johnson (2012) 211 Cal.App.4th 252, 262-263

Fourth Holding:

The record is unclear whether the defendant was on probation for a different offense at the time she submitted her petition for relief under section 1203.4. Thus, we must remand for the court to make that determination.

Authority:

People v. Wilkinson (2008) 163 Cal.App.4th 1554, 1574 [remanding to trial court to finish the analysis it would have performed if the court had not made error]

Fifth Holding:

Section 1203.4 is a rehabilitative provision that rewards a person who has successfully completed probation. It authorizes a person who previously entered a guilty or no contest plea to withdraw the plea (or, if convicted by other than plea, to have the verdict of guilty set aside), have the charges underlying the conviction dismissed, and thereafter be released from all penalties and disabilities resulting from the offense.

This dismissal does not, strictly speaking, expunge the conviction, because charges dismissed under section 1203.4 may be treated as convictions for some purposes.

(Gary note: Read section 1203.4 carefully with regard to that preceding statement. While it’s certainly a nice closure, and maybe more than a simple pat on the back, it does not give the person a completely clean slate.)

Authority:

People v. Woodward (2025) 116 Cal.App.5th 379, 398,

People v. Park (2013) 56 Cal.4th 782, 803

People v. Seymour (2015) 239 Cal.App.4th 1418, 1429