Error and/or relief
The trial court made several errors in resentencing under Penal Code section 1172.5. It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee. On remand the court must also recalculate credits and correct the abstract of judgment. [GARY NOTE: The opinion also provided extensive discussion of the application of section 1385, regarding dismissals in the furtherance or interest of justice, touching on abuse of discretion, etc., that were resolved against the defendant on appeal. I have provided a few principles and authorities on those points for educational reasons, even though they did not support relief for the defendant in this instance.]
First Holding:
Section 1172.75 declares legally invalid all one-year prior prison term enhancements except those for sexually violent offenses described in WI Code section 6600(b). Because the defendant’s two priors are not sexually violent offenses, they were legally invalid and should have been stricken.
Authority:
PEN 1172.75
Second Holding:
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) modified the gang enhancement by adding new requirements that did not previously exist. Because AB 333 retroactively applies to people, like defendant, who have been granted a resentencing hearing, the trial court erred in not assessing whether the jury’s findings in this case otherwise addressed the new requirements or whether the jury’s failure to do so was harmless beyond a reasonable doubt.
Authority:
People v. Lopez (2025) 17 Cal.5th 388, 395-396
Third Holding:
The trial court imposed a $10 administrative screening fee ostensibly under section 1463.07 in November 2018. This is unenforceable because our Legislature in 2021 repealed that section and nullified prior fees imposed under that section.
Authority:
PEN 1465.9
Fourth Holding:
It was not necessary for the trial court to respond to all of the defendant’s contentions at the sentencing hearing. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules.
Authority:
Rules of Court, rule 4.409 [sentencing factors will be deemed to have been considered unless the record affirmatively reflects otherwise]
People v. Knowles (2024) 105 Cal.App.5th 757, 765
People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322
People v. Brugman (2021) 62 Cal.App.5th 608, 637
Fifth Holding:
We review the exercise of sentencing discretion for an abuse of discretion but recognize that a trial court’s reliance on an incorrect legal standard constitutes such an abuse. Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion.
Authority:
People v. Gonzalez (2024) 103 Cal.App.5th 215, 225
Sixth Holding:
Despite the use of the phrase “shall be dismissed,” section 1385’s provisions that require a court to give great weight in favor of dismissal do not apply where a trial court finds that dismissal of the enhancements would endanger public safety.
Authority:
People v. Mendoza (2023) 88 Cal.App.5th 287, 296
People v. Mazur (2023) 97 Cal.App.5th 438, 444-446
People v. Cota (2023) 97 Cal.App.5th 318, 335-337
People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1290
People v. Anderson (2023) 88 Cal.App.5th 233, 238-241
People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21
