Category Archives: Sentencing

Amelioration, Sentencing

Cases 000046, 000047, 000048, and there is no 000049

Posted on by Gary McCurdy

Error and/or relief

[GARY’S NOTE: Three cases held exactly the same and are lumped together here, and there is no case 000049 (as a result of blogger error).]  Under the authority of Rhodius, we reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing. Under section 1172.75, a person is eligible for resentencing consideration even if the prior prison term enhancement had been stayed or stricken.

First Holding:

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

PEN 667.5(b)

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

Appellate Principles, Jurisdiction, Sentencing

Case 000041

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing conducted after the remittitur issued, the trial court declined to strike or reduce the Penal Code section 12022.53(d) firearm enhancement and reimposed the sentence of 50 years to life. The parties agree that the trial court lacked jurisdiction to conduct the earlier hearing (while the appeal was up in higher court, the trial court permitted the prosecution to file new circumstance in aggravation) and the matter must be remanded for a new resentencing hearing. Accordingly, we reverse and remand for a new sentencing hearing conducted in accordance with Senate Bill 567.

First Holding:

It is well established that 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.

Authority:

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

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

Second Holding:

This jurisdictional rule serves to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided, and prevents the trial court from rendering an appeal futile by altering the appealed judgment by conducting other proceedings that may affect it.

Authority:

People v. Awad (2015) 238 Cal.App.4th 215, 224

Third Holding:

During the premature hearing, the trial court permitted the prosecution to amend the information to add a factor in aggravation pursuant to California Rules of Court, rule 4.421(b)(1), and accepted defendant’s waiver of his right to trial and admission to the new allegation. Because the trial court lacked jurisdiction to conduct this hearing, all proceedings conducted during that hearing—including the amendment of the information and defendant’s subsequent admission—are null and void.

Authority:

People v. Williams (1999) 77 Cal.App.4th 436, 446-447

Amelioration, Appellate Principles, Elements of crime, Sentencing

Case 000038

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction does not conclusively establish the defendant is ineligible for resentencing under Penal Code section 1172.6 on his manslaughter conviction as a matter of law, the court reversed and remanded the matter for the court to issue an order to show cause and conduct an evidentiary hearing on that count.

First Holding:

A defendant who pleaded no contest to manslaughter is eligible for resentencing if the charging document permitted the prosecution to pursue a conviction under the felony-murder rule, the natural and probable consequences doctrine, or any other imputed malice theory.

Authority:

PEN 1172.6

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

Absent exceptional circumstances, appellate courts generally do not take judicial notice of evidence not presented to the trial court.

Authority:

Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 417, fn. 7

Sentencing

Case 000036

Posted on by Gary McCurdy

Error and/or relief

We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct.

Authority:

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

When a defendant is imprisoned and later resentenced, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000035

Posted on by Gary McCurdy

Error and/or relief

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding:

The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

PEN 1172.75

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]

Second Holding:

Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.

Authority:

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

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

People v. Burgos (2024) 16 Cal.5th 1, 28

Third Holding:

If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.

Authority:

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

People v. Sek (2022) 74 Cal.App.5th 657, 669

United States v. Tateo (1964) 377 U.S. 463, 465

Fourth Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41