Category Archives: Jurisdiction

Amelioration, Discretion, Jurisdiction, Sentencing

Case 000531

Posted on by Gary McCurdy

Error and/or relief

The defendant, whose original sentencing occurred prior to 1/1/2020, is eligible for full resentencing under section 1172.75 where his original sentence imposed sentence (whether or not stayed) on now-invalid prior prison term enhancements, even if later his sentence was modified on other grounds after 1-1-2020.

[GARY NOTE: The court, in this unpublished case, concluded that section 1172.75 applies to the original judgment, which was before 1/1/2020, and therefore the defendant was eligible despite any subsequent resentencing under section 1172.1. The decision rested on the Court of Appeals logic in interpreting the statutes, however, and did not otherwise cite any published case law. Since an unpublished decision cannot be cited as authority, the gold extracted in this summary does not specifically address the question reached by the court in this case.]

First Holding:

Section 1172.75 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. It requires the court to vacate the entire sentence and hold a full resentencing hearing, applying any applicable ameliorative changes in the law since the original sentencing. 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. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Dixon (2025) 112 Cal.App.5th 236, 243

Second Holding:

Section 1172.1 authorizes the Secretary of the Department of Corrections and rehabilitations (CDCR) [as well as “the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case”] to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant.

The CDCR recommendation furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is an invitation to the court to exercise its equitable jurisdiction. The court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody. Whether recall on the invitation of the CDCR et al. or on its own motion, the new sentence, if any, cannot be greater than the initial sentence.

Authority:

PEN 1172.1

People v. McMurray (2022) 76 Cal.App.5th 1035, 1

Third Holding:

If the resentencing request is from the Secretary of CDCR, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General, there shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c) (an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv)).

Authority:

PEN 1172.1(b)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

Fourth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion. However, where the appeal from a resentencing order raises questions of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

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

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]

Jurisdiction

Case 000465

Posted on by Gary McCurdy

Error and/or relief

(Gary Note: This did not result in any relief but reminds us which appellate court has jurisdiction for  denials of petitions for a finding of factual innocence in misdemeanors or felonies or proceedings in which no accusatory pleading was filed.)

Here, the defendant appealed from a denial of his petition under PC 851.8 to seal and destroy his arrest record with a finding of factual innocence. While the court issued orders short of that finding, it did not make a finding of factual innocence. The defendant appealed. The Court of Appeal found it had no jurisdiction and transferred the case to the Appellate Division of the appropriate county superior court.

First Holding:

Section 851.8(a) and (b) govern the process for requesting sealing and destruction of arrest records based on factual innocence in cases in which the person was arrested and no accusatory pleading was filed. Subdivision (a) states that the person arrested may first petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. Subdivision (b) provides that in any case in which the law enforcement agency denies or fails to respond to the petition, the person arrested may file a petition in superior court asking to have the records sealed and destroyed. The court may grant the petition based on a finding of factual innocence if it concludes that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.

Authority:

People v. O’Day (2022) 85 Cal.App.5th 426, 432

Second Holding:

The appealability of orders made under section 851.8 is governed by subdivision (p), which provides: “A judgment of the court under subdivision (b), (c), (d), or (e) is subject to the following appeal path: (1) In a felony case, appeal is to the court of appeal. (2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court. The record does not show any accusatory pleading was filed in this case, and the pleadings in the record indicate that no charges were ever filed. Thus, no felony was charged. Accordingly, jurisdiction over this appeal belongs with the appellate division of the superior court. We therefore transfer this appeal to the Appellate Division of the [originating county] Superior Court pursuant to Government Code section 68915.

Authority:

People v. Nickerson (2005) 128 Cal.App.4th 33, 39–41

Third Holding:

No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto.

Authority:

GOV 68915

Jurisdiction, Sentencing

Case: 000444

Posted on by Gary McCurdy

Error and/or relief

The trial court had no jurisdiction to modify the long-final judgment in response to a letter from the Department of Corrections and Rehabilitation (CDCR) that pointed out sentencing errors (which were adverse to the defendant’s interests). The defendant appealed, but the Court of Appeal dismissed the appeal because there was no jurisdiction in the lower court, and thus nothing to appeal from.

It did, however, treat the appeal as a petition for writ of habeas corpus and granted the writ, directing the trial court to to vacate the order modifying the defendant’s’ sentence on the conviction for dissuading a witness and reinstate the original sentence imposed on that count.

First Holding:

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. However, there are limited exceptions to this rule. For example, the court has inherent power to correct a clerical error at any time. A court also may resentence a defendant in connection with a petition for writ of habeas corpus or under specified conditions provided in section 1172.1.

Authority:

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

People v. Singleton (2025) 113 Cal.App.5th 783, 787, 790–791

Second Holding:

Here, the trial court made two modifications to the defendant’s sentence long after execution of the sentence had commenced. First, the court imposed a 10-year enhancement under section 12022.5(a), rather than under section 667.6(c). A record of the court’s oral pronouncement of the original sentence could not be produced for this appeal, so it is not clear if the court misspoke while announcing the sentence, or if the mistake appeared for the first time in the minute order.

In any event, it is apparent the court intended to impose the enhancement under section 12022.5(a), as alleged in the information and found true by the jury. Therefore, the error was essentially clerical, which the trial court had inherent discretion to correct at any time.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1294 [court’s inadvertent reference to the wrong statute at sentencing was a clerical error]

People v. Singleton (2025) 113 Cal.App.5th 783, 790–791

Third Holding:

Second, the trial court modified the defendant’s sentence to impose a full consecutive middle term on the dissuading a witness count. The original sentencing court imposed a consecutive one-third the middle term on that count, as is generally required under section 1170.1(a). However, the resentencing court determined section 1170.15 required it to impose a full consecutive term, presumably because the victim of the dissuading offense also was the victim of another felony conviction. A court’s failure to impose a full consecutive term under section 1170.15 is a judicial error, not a clerical error.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 792 [a court makes a judicial error when it fails to impose the legally required sentence under section 1170.15]

Fourth Holding:

Courts of Appeal are split on whether trial courts have inherent jurisdiction to correct an unauthorized sentence, i.e., a sentence that could not lawfully be imposed under any circumstance in the particular case. The majority of appellate courts have concluded they do not but others see it differently.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. King (2022) 77 Cal.App.5th 629, 633

People v. Boyd (2024) 103 Cal.App.5th 56, 62–63

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1122–1124

People v. Singleton (2025) 113 Cal.App.5th 783, 796–797

People v. Garcia (2025) 114 Cal.App.5th 139, 144–145

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Cervantes (2025) 115 Cal.App.5th 825

In re G.C. (2020) 8 Cal.5th 1119

Jurisdiction, Plea bargains, Sentencing

Case: 000442

Posted on by Gary McCurdy

Error and/or relief

The defendant entered into a plea agreement that stipulated the length of his sentence and how it was to be served (a split sentence under Realignment). When he was eventually sentenced, the court deviated from that agreed-on sentence. The defendand appealed. While the appeal was pending, the trial court and parties attempted to modify the judgment in accordance with the plea agreement. Because the defendant was never advised of his right to withdraw his plea if the court chose to not abide by the agreed sentence under section 1192.5, the matter is reversed to allow the defendant to withdraw his guilty plea. The trial court had no jurisdiction to modify the judgment while the appeal was pending.

First Holding:

A plea of guilty or nolo contendere may specify the punishment. Where, as here, the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The advisement required by section 1192.5(c) was not given here. When the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

PEN 1192.5

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024–1025 [overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183]

Second Holding:

The three-year prison sentence originally imposed is more severe than the agreed-upon sentence of two years in county jail with one year of mandatory supervision. There is a qualitative difference between an inmate in actual prison custody and a felon released in the community under mandatory supervision.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 935 [length of jail term is significant]

People v. Silva (2016) 247 Cal.App.4th 578, 591–592 [30-day jail sentence consecutive to agreed-upon sentence allowed defendant to withdraw plea]

Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1037

Third Holding:

The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. Thus, action by the trial court while an appeal is pending is null and void. The purported changes to the sentence that were made while appeals in this matter were pending are thus void.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473

Fourth Holding:

While an appeal is pending, a trial court has inherent power to correct clerical errors in its records, including correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here the court had the power to correct the erroneous section designation in the original abstract. But it did not have the power to change the sentence while the appeals were pending. Under such circumstances, the proper procedure is to reverse the void judgment rather than dismiss the appeal.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474

Fines and fees, Jurisdiction, Plea bargains, Sentencing

Case: 000299

Posted on by Gary McCurdy

Error and/or relief

On revoking probation, the court added an additional restitution fine to the original restitution fine and modified an eight-month consecutive term to an eight-month concurrent term in the same case, and then a 16-month concurrent term in a second case. On notice from the Department of Corrections and Rehabilitation that the 8-month concurrent term was unauthorized because the the one-third of the middle term clculation applies only to consecutive terms. The trial court then converted the eight-month concurrent term to 16 months concurrent. The second restitution fine was unauthorized and must be stricken. The court had no authority to change the original eight-month consecutive term to either a concurrent eight-month term or a sixteen-month concurrent term, because at the time probation was granted, the court imposed a sentence (two years on the principal count and eight months on the subordinate offense) in that case, with execution suspended pending successful completion of probation. The matter is remanded for resentencing.

First Holding:

A restitution fine imposed at the time probation is granted survives the revocation of probation. Because of this, an additional restitution fine imposed at the time probation is revoked is unauthorized and must be stricken from the judgment.

Authority:

People v. Urke (2011) 197 Cal.App.4th 766, 779

People v. Chambers (1998) 65 Cal.App.4th 819

Second Holding:

There is a distinction between a probation grant in which imposition of sentence has been suspended (meaning, no sentence has been declared) and one where sentence has been imposed (meaning, a term has been specified) with the execution of that term suspended during the term of probation. In the former (imposition of sentence suspended), on revocation the court is free to choose whatever sentence options were available had probation never been granted. In the latter, the only choices are to reinstate probation or to revoke probation and order the previously imposed sentence executed.

Authority:

PEN 1203.2(c)

People v. Howard (1997) 16 Cal.4th 1081

People v. Scott (2014) 58 Cal.4th 1415, 1424

Third Holding:

The letter from CDCR did not constitute a recommendation for recall of the sentence and resentencing under section 1170.1 that the sentence be modified. It was merely a letter seeking clarification on whether a lawful sentence had been imposed. Thus, the court could not base its resentencing on a response to the notice contemplated by section 1170.1.

Authority:

PEN 1170.1

People v. Codinha (2023) 92 Cal.App.5th 976, 986-987

People v. Singleton (2025) 113 Cal.App.5th 783, 791–792

Fourth Holding:

When the parties negotiate a plea agreement that grants probation incorporating and conditioned upon the service of a specified term in custody, the resulting term of incarceration constitutes a material term of, the parties’ agreement. As such, the term is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court’s general statutory authority to modify probation during the probationary period. Further, a plea agreement requiring an unauthorized sentence is not enforceable. On the other hand, once the court approves a plea bargain, it cannot change the agreement without the consent of the parties. When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931, 935

In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 945 [the trial court cannot approve a plea bargain that calls for an unlawful sentence]

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757

People v. Baries (1989) 209 Cal.App.3d 313, 319 [The concurrent sentence was unauthorized and could not have been lawfully imposed. It must be vacated, and the trial court must give the defendant, if she chooses, the opportunity to withdraw her plea since it cannot be honored.]

People v. Griffin (2005) 128 Cal.App.4th 1112, 1119