Category Archives: Sentencing

Eighth Amendment, Sentencing

Case: 000091

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a petition for recall and resentencing under Penal Code section 1170(d). He was serving a sentence of more than 50 years to life for offenses committed when he was 14 and tried as an adult. We agree with the defendant that he adequately demonstrated he did not have prior juvenile felony adjudications for assault or other disqualifying felonies, contrary to the finding of the trial court. We agree that the prior offense was not adjudicated as a felony. Section 1170(d) requires that he satisfy at least one of the specified criteria, which he has. On that basis, we are compelled to reverse the order denying his petition for recall and resentencing.

First Holding:

In light of the ban against cruel and unusual punishment under the Eighth Amendment, in 2013 the Legislature created a procedure for a juvenile offender sentenced to life without the possibility of parole (LWOP) to petition for a recall of the offender’s sentence and resentencing after the offender has served at least 15 years of the sentence.

Authority:

PEN 1170(d)

In re Kirchner (2017) 2 Cal.5th 1040, 1049

Graham v. Florida (2010) 560 U.S. 48

People v. Heard (2022) 83 Cal.App.5th 608, 622–626

Second Holding:

There is a conflict. Some courts have held that it violates the constitutional promise of equal protection of the laws to deny relief under the statute to juvenile offenders sentenced to lengthy terms of years amounting to the functional equivalent of LWOP. Other courts have concluded that section 3051 moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 450–454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054–1061

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123

Third Holding:

We apply the substantial evidence standard of review when considering disputed findings of fact made by trial courts. Under that standard of review, we review the record in the light most favorable to the order to determine whether the order is supported by substantial evidence. Substantial evidence is evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value, and substantial proof of the essentials which the law requires in a particular case.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, 506–507

People v. Harring (2021) 69 Cal.App.5th 483, 495

People v. James (1985) 176 Cal.App.3d 795, 798

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006

Fourth Holding:

Insofar as the defendant’s claims require us to interpret section 1170(d), they present questions of statutory construction subject to de novo review. Statutory construction begins with the plain, commonsense meaning of the words in the statute, because it is generally the most reliable indicator of legislative intent and purpose. A statute is not to be read in isolation, but construed in context and with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, 506

People v. Harring (2021) 69 Cal.App.5th 483, 495

People v. Heard (2022) 83 Cal.App.5th 608, 622–623

Fifth Holding:

Penal Code section 1170(d) states that, when the defendant seeks relief under that section, the petition shall include the defendant’s statement that the defendant was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendant’s statement describing their remorse and work towards rehabilitation, and the defendant’s statement that one of the following is true: (A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law; (B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall; (C) The defendant committed the offense with at least one adult codefendant; (D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

Authority:

PEN 1170(d)

Duty of the court, Sentencing

Case 000090

Posted on by Gary McCurdy

Error and/or relief

Remand for resentencing is required because (1) the trial court erred by failing to impose and then stay execution of the sentence on the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a); and (2) the trial court erred in failing to resentence the defendant to a single aggregate term of imprisonment for this case and another case for which he is serving a term of 24 years. We accept the People’s concession and remand the matter for resentencing.

First Holding:

At sentencing, the trial court did not orally pronounce a sentence for the infliction of great bodily injury enhancement. The matter is accordingly remanded for the trial court to impose and stay execution of the three-year sentence on the Penal Code section 12022.7(a) enhancement.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130

Second Holding:

When a defendant is convicted of multiple crimes in different cases and a consecutive term of imprisonment is imposed, the aggregate term for those cases is the sum of the principal term and subordinate term. In this instance, the trial court did not impose a single aggregated term. We will therefore remand for the trial court to do so.

Authority:

PEN 1170.1

Rules of Court, rule 4.452 [setting forth the procedure for imposing consecutive sentencing under PC 1170.1]

Third Holding:

During resentencing, the trial court shall award the appropriate custody credits for the aggregate term. [Gary note: the court cited no authority on the recalculation of credits, likely because the error is so obvious. But I have listed the statute and a leading case below.]

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37 [Having modified defendant’s sentence on remand, the court was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time]

Amelioration, Sentencing

Case 000089

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
On the defendant’s claim that it was error to deny his petition for recall of his sentence under Penal Code section 1172.6 because the trial court found that he was ineligible as matter of law in considering the preliminary hearing transcript, the cause is remanded with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur. The trial court’s order is otherwise affirmed.

First Holding:

At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to sections 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 463

Second Holding:

After determining the facial validity of a resentencing petition and before ordering an evidentiary hearing, a trial court may properly, at the prima facie stage, reference the record of conviction, which includes the preliminary hearing transcript, to refute conclusory allegations in furtherance of its statutorily required screening function at that juncture of a section 1172.6 proceeding.

Authority:

People v.Lewis (2021) 11 Cal.5th 952, 971

People v. Patton (2025) 17 Cal.5th 549, 569

Third Holding:

Although the defendant has not shown error in connection with the court’s denial of his section 1172.6 petition, following the Supreme Court’s directive to the Court of Appeal in Patton, we will remand the matter to the trial court with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569 569–570

People v. Glass (2025) 110 Cal.App.5th 922, 930–931

Amelioration, Duty of the court, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000088

Posted on by Gary McCurdy

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 000083

Posted on by Gary McCurdy

Error and/or relief

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken. And an error in the minute order must be corrected to reflect that two misdemeanors were dismissed.

First Holding:

Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct. Restitution is not intended to provide the victim with a windfall. Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.

Authority:

People v. Nichols (2017) 8 Cal.App.5th 330, 342

People v. Baker (2005) 126 Cal.App.4th 463, 470

Second Holding:

The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 625 [On September 18, 2020, the Governor signed AB 1869, which eliminated the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and eliminated all outstanding debt incurred as a result of the imposition of specified administrative fees.]

Third Holding:

The minute order fails to reflect that two misdemeanor counts were dismissed, and it must be corrected.

[Gary note: The court did not cite any authority for its order for correction, but there is plenty out there. I have set forth a few cases the court could have cited, for your convenience.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

Cunningham v. California (2007) 549 U.S. 270, 281

Second Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Third Holding:

The United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses. A judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 768

Sixth Holding:

When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776 [To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Amelioration, Sentencing

Case 000080

Posted on by Gary McCurdy

Error and/or relief

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 sec. 667.5(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. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing.

Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken.

Authority:

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

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985

People v. Faustinos (2025) 109 Cal.App.5th 687

People v. Raoy (2025) 110 Cal.App.5th 991

People v. Brinson (2025) 112 Cal.App.5th 1040

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Defenses, Sentencing

Case 000076

Posted on by Gary McCurdy

Error and/or relief

The charge for violating a protective order was barred by the statute of limitations. We therefore vacate defendant’s conviction for violating a criminal protective order but otherwise affirm the judgment.

Holding:

The misdemeanor violating a criminal protective order (sec. 166(c)(1)) must be vacated because it is barred by the applicable one-year statute of limitations.

Authority:

PEN 166(c)(1)

PEN 802

People v. Williams (1999) 21 Cal.4th 335, 338, 341

Amelioration, Sentencing

Case 000074

Posted on by Gary McCurdy

Error and/or relief

As in Patton, we grant appellant’s request to remand the matter for the opportunity to file a supplemental petition under Penal Code section 1172.6.

First Holding:

When the court makes the prima facie determination, it may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition.

Authority:

People v. Patton (2025) 17 Cal.5th 549

Second Holding:

Petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail. It follows from what we have said already that should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing, assuming relief is not otherwise foreclosed.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Third Holding:

While it may be that a record can refute the allegations made in the petition, it would be somewhat imprecise to say that evidence in a preliminary hearing transcript, offered at the prima facie stage, irrefutably establishes any particular fact to any particular standard of proof. A conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a conclusion about the strength of evidence in the record.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567, fn. 10

Amelioration, Sentencing, Sixth Amendment

Case 000073

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed upper term sentences on Counts 1 and 3, and the matter must therefore be remanded for resentencing. We agree that the defendant’s trial rights notwithstanding, the court’s reliance on his prior criminal history to impose aggravated terms was prejudicial error.

First Holding:

Section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170(b)

People v. Lynch (2024) 16 Cal.5th 730, 742

Second Holding:

Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. Thus, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742, 748

Third Holding:

Except for properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception to prior convictions permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions, within the meaning of the federal sentencing statute at issue. Instead, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. In doing so, the court reaffirmed the basic rationale of Apprendi and rejected the arguments made by the dissent and amicus curiae that, historically, when exercising their sentencing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to the penalty.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Mathis v. United States (2016) 579 U.S. 500, 511–512

Fourth Holding:

Since Erlinger, the California Supreme Court has gone further to make it clear that Erlinger requires that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083–1084 [absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor]

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1038

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2