Category Archives: Sentencing

Amelioration, Duty of the court, Juveniles, Sentencing

Case: 000272

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded back to this course following an earlier appeal, for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261. We once again affirmed the judgment, but remanded the matter to the trial court with instructions to determine whether petitioner was entitled to a Franklin hearing. Petitioner’s appeal was not final until 2017, after Proposition 57 went into effect on November 9, 2016. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing

Holding:

Prop. 57 affords the right to a juvenile transfer hearing to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted. Prop. 57 applies to a sentence that was imposed prior to Prop. 57 but later vacated through a subsequent habeas proceeding. Here, petitioner’s case was directly filed in adult court before Prop. 57 was enacted, but his sentence was vacated through a habeas corpus petition subsequent to the effective date. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing. Respondent concedes this position. Thus, it is appropriate to grant the requested relief.

Authority:

People v. Superior Court of Riverside County (Lara) (2018) 4 Cal.5th 299, 304

People v. Padilla (2022) 13 Cal.5th 152, 159

Amelioration, Jurisdiction, Sentencing

Case: 000270

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for resentencing under section 1172.75. While review was still pending in the Supreme Court following the defendant’s appeal of his conviction, the trial court assumed jurisdiction and struck the prior prison term enhancement as directed by the Court of Appeal’s opiniion. More than a year later, the Calfiornia Department of Corrections and Rehabiltation advised that the defendant was on its list of inmates entitled to have their now-invalid prior prison term enhancements stricken. The court recalled the sentence under section 1172.75, but ultimately after the trial court discovered that it had already dismissed the now-invalid enhancement for a prior prison term, it concluded that the defendant was not eligible for resentencing. However, the trial court had no jurisdiction to strike the enhancement while the appeal was pending review in the Supreme Court.

First Holding:

Subject to limited exceptions, 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. Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Scarbrough (2015) 240 Cal.App.4th 916, 923

Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10

People v. Cunningham (2001) 25 Cal.4th 926, 1044

In re Lukasik (1951) 108 Cal.App.2d 438, 443

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

Because the trial court was without subject matter jurisdiction to strike the sentencing enhancements when it did [while the matter was still on appeal], the court’s order is void and vulnerable to direct or collateral attack at any time. Because the order striking the prior conviction enhancement is void, the only judgment that applied to defendant’s case was the original judgment that included the section 667.5 enhancement. The court therefore erred when it declined to resentence defendant by striking the section 667.5 enhancement during a new resentencing hearing.

Authority:

PEN 1172.75(c), (d)(1), (d)(2)

People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660

People v. Vasilyan (2009) 174 Cal.App.4th 443, 450

People v. Green (2024) 104 Cal.App.5th 365, 373

Duty of the court, Sentencing

Case: 000267

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court failed to calculate her presentence custody credits correctly. We agree the defendant is entitled to three additional days of presentence custody credit. We direct the trial court to prepare an amended abstract of judgment to reflect the correct amount of credit and transmit it to the California Department of Corrections and Rehabilitation.

Holding:

[GARY NOTE: There was no authority indicated in the opinion for the correction of the credit for time served, likely because the error is so obvious. For sake of completeness, the following authorities would support the court’s ruling.]

Authority:

PEN 2900.5(d) [It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.]

People v. Smith (1989) 211 Cal.App.3d 523 [A sentencing court must award credits for all days in custody up to and including the day of sentencing.]

People v. Duff (2010) 50 Cal.4th 787, 793 [At the time of sentencing, credit for time served, including conduct credit, is calculated by the court. The total number of days to be credited is memorialized in the abstract of judgment and shall be credited upon the defendant’s term of imprisonment. The credit in effect, becomes part of the sentence.]

Amelioration, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the 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.

Authority:

PEN 1172.75

Second Holding:

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.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

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

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

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

People v. Dean (2024) 99 Cal.App.5th 391, 397

Amelioration, Jurisdiction, Sentencing

Case: 000264

Posted on by Gary McCurdy

Error and/or relief

On remand from a grant of habeas corpus reversing the conviction of attempt murder, it was error for the court to simply strike the punishment attached to that reversed count and fail to conduct a full resentencing. The trial court did not explicitly state it was recalling the defendant’s sentence under section 1172.1. However, the court’s actions at the 2023 hearing make clear that it did.

First Holding:

Courts generally lack jurisdiction to modify a defendant’s sentence once execution of the sentence has begun. Section 1172.1 provides an exception to that general rule. It states a trial court may, at any time upon the recommendation of the secretary of the CDCR or the district attorney, recall a defendant’s sentence and resentence the defendant in the same manner as if they had not previously been sentenced. When resentencing a defendant under section 1172.1, the trial court must consider postconviction factors and apply the sentencing rules of the Judicial Council and apply any 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:

PC 1172.1

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

People v. King (2022) 77 Cal.App.5th 629, 636–637

Second Holding:

After announcing the People were conceding the defendant’s motion for recall and resentencing, the court granted the prosecutor’s motion to dismiss the gang allegation under section 1385. Assuming the defendant’s judgment of conviction was final at the start of the hearing—as the trial court believed it to be—the court had authority to grant the People’s motion only if it first recalled the defendant’s sentence. In other words, the fact that the trial court granted the People’s motion to dismiss shows it first recalled the defendant’s sentence under section 1172.1

Authority:

PEN 1170.1

PEN 1385

People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8

People v. Kim (2012) 212 Cal.App.4th 117, 123

People v. Sek (2022) 74 Cal.App.5th 657, 666–667 [Assembly Bill 333 applies retroactively only to cases that are not yet final]

Third Holding:

By recalling the defendant’s sentence, the trial court effectively vacated the entire judgment, not just the portion related to the gang allegation. Therefore, the court was required to resentence the defendant on each count and enhancement in the same manner as if he had not previously been sentenced. The court also was required to apply changes in the law since the original sentencing.

Authority:

PEN 1172.1

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

People v. Rogers (2025) 108 Cal.App.5th 340, 360 [recall of a defendant’s sentence nullifies the original sentence]

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [the “full sentencing rule” applies when a court recalls a sentence under former section 1170(d), a predecessor to section 1172.1]

Fourth Holding:

The court dismissed the gang allegation, but it did not orally pronounce a sentence on the murder conviction or the firearm enhancement, even by reference to the original sentence. Nor is there any indication that the court applied the changes to the law since the original sentencing.

Authority:

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement]

People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 532 [at sentencing, the court must orally pronounce the term of imprisonment]

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [trial court erred by failing to pronounce sentence on a count before staying its execution]

Fifth Holding:

The defendant did not forfeit his right to a full resentencing by failing to raise the issue in the trial court. Generally, a defendant must raise an issue in the trial court to preserve it on appeal. However, that general rule does not apply to an unauthorized sentence, which a defendant may challenge on appeal despite not objecting below. Here, the trial court recalled the defendant’s sentence, which effectively vacated his entire sentence. However, it never pronounced a new sentence on the murder conviction and firearm enhancement. The court’s failure to do so resulted in an unauthorized sentence.

Authority:

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

People v. Arias (2020) 52 Cal.App.5th 213, 219

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court committed unauthorized sentencing error by failing to pronounce a sentence on a count before ordering it stayed]

Sixth Holding:

Even if the forfeiture rule applied, we would exercise our discretion to consider the issue on the merits in order to forestall an inevitable ineffective assistance of counsel claim.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts have discretion to consider issues not preserved for review]

People v. Monroe (2022) 85 Cal.App.5th 393, 399–400 [declining to apply forfeiture rule where defendant failed to object to the lack of full resentencing under section 1172.75]

Seventh Holding:

Where, as here, the defendant did not receive a full resentencing to which he was entitled, the proper disposition is to remand for a full resentencing. Accordingly, we remand the case for the trial court to resentence the defendant in accordance with section 1172.1. In doing so, the court must consider postconviction factors and apply any 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 resentencing the defendant on remand, the court may not reinstate the gang allegation it dismissed under section 1385.

Authority:

PEN 1172.1

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remanding case for resentencing where the defendant was entitled to, but did not receive, a full resentencing under section 1172.75]

People v. Saldana (2023) 97 Cal.App.5th 1270, 1278–1279 [same]

People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing]