Category Archives: Statutory interpretation

Amelioration, Appellate Principles, Elements of crime, Standard of review, Statutory interpretation, Vicarious liability

Case 000852

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for an evidentiary hearing.

First Holding:

Morris held that an aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder, we agree with defendant that the record of conviction does not show he was convicted as either the actual killer or as an aider and abettor who acted with the intent to kill as a matter of law,

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678

Second Holding:

SB 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, significantly limited the scope of California’s felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key statutory provisions.

Section 189 was amended so that a defendant is liable for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with the intent to kill, or (3) a major participant in the underlying felony and acted with reckless indifference to human life.

Section 188 was amended to impose a new requirement that, except in cases of felony murder, a principal in the crime of murder can only be convicted where he or she acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 189

PEN 188

People v. Strong (2022) 13 Cal.5th 698, 707-708

People v. Curiel (2023) 15 Cal.5th 433, 449

People v. Love (2025) 107 Cal.App.5th 1280, 1286

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931

Third Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced.

Authority:

PEN 1172.6

Fourth Holding:

Courts may not engage in factfinding at the prima facie stage. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. The record of conviction includes jury verdicts, jury instructions, and closing arguments.

This does not include our appellate opinion. The factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. If such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.

If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]

People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage]

People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted

People v. Clements (2022) 75 Cal.App.5th 276, 292 [Trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1172.6 petition reaches the stage of a full-fledged evidentiary hearing.]

People v. Strong (2022) 13 Cal.5th 698, 708

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing. We may affirm a ruling that is correct in law on any ground.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Cortes (2022) 75 Cal.App.5th 198, 204

Sixth Holding:

For a person to be convicted of murder as an aider and abettor, the person must aid and abet the actual killer in the lethal act itself, and not just in the underlying felony.

Here, the record of conviction does not establish as a matter of law that defendant participated in aiding and abetting the kidnapping and other acts that led to the victim’s death and that he acted with the intent to kill. We thus reverse the trial court’s order and remand the matter with directions to issue an order to show cause and to conduct an evidentiary hearing.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 681

Pleading, Statutory interpretation

Case 000843

Posted on by Gary McCurdy

Error and/or relief

Defendant’s two convictions for methamphetamine possession were based on the same act and one of them must therefore be reversed. Count 2 must be vacated. Because the record does not indicate defendant’s current status or the extent to which the invalid conviction may have influenced the trial court’s sentencing choices, we will remand the matter for appropriate action by the trial court.

First Holding:

A defendant may be charged in an accusatory pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged, but if two alleged offenses are different statements of the same offense, both offenses may be charged based on the same act, but convictions for both cannot stand.

Authority:

PEN 954

People v. Aguayo (2022) 13 Cal.5th 974, 979

Second Holding:

The most reasonable construction of the language in Penal Code section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 650

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Fines and fees, Retroactivity, Sentencing, Standard of review, Statutory interpretation

Case 000791

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court reimposed the restitution fine that was ordered at the original sentencing more than 10 years earlier. The restitution fine must be vacated.

First Holding:

Defendant contends the trial court erred by reimposing a restitution fine under section 1202.4(b) because the language of section 1465.9(d) mandates vacating these fines after 10 years. The People disagree and counter defendant’s fines were reimposed at the resentencing hearing, making section 1465.9 inapplicable because 10 years have not elapsed under the statute. We agree with defendant.

Authority:

John v. Superior Court (2016) 63 Cal.4th 91, 95

Second Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

Trial courts have jurisdiction to modify every aspect of a sentence at a full resentencing hearing, including fines. Here, at resentencing the trial court confirmed and reimposed all previous terms, conditions, fines and fees, and admonishments provided by the court on the day of defendant’s original sentencing. The court clearly intended to reimpose the original restitution fine and not an additional, new obligation under section 1202.4(b).

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Rosas (2010) 191 Cal.App.4th 107, 117

People v. Nilsson (2015) 242 Cal.App.4th 1, 34

Fourth Holding:

As in Salstrom, we find no support for the People’s position that this reimposition restarted section 1465.9’s 10-year clock. The plain language of section 1465.9(d) provides legislative intent to eliminate restitution fines under section 1202.4 after 10 years. Allowing trial courts to reimpose a restitution fine under section 1202.4(b) originally imposed more than 10 years prior could render section 1465.9 effectively meaningless for any defendant who is subject to a full resentencing” or is successful on an appeal or a collateral attack.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on another issue March 11, 2026, S295038

Sentencing, Statutory interpretation

Case 000741

Posted on by Gary McCurdy

Error and/or relief

The court erred in not conducting a full resentencing on the defendant’s petition for recall under section 1172.75. Remanded for full resentencing.

First Holding:

When a defendant raises both statutory and constitutional bases for their appeal, we do not reach the constitutional grounds if the case can be resolved on statutory grounds. When a defendant appeals the denial of a Marsden motion, the core inquiry is whether the trial court’s ruling violated the defendant’s constitutional right to the effective assistance of counsel.

Authority:

Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497, 513 [a reviewing court should consider a constitutional question only where essential to the disposition of a case]

People v. Marsden (1970) 2 Cal.3d 118, 123

People v. Smith (1993) 6 Cal.4th 684, 696

Second Holding:

On the other hand, the scope of a trial court’s application of section 1172.75 is a question of statutory interpretation, which is subject to our de novo review. If that review resolves the appeal, it is dispositive.

Authority:

People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–1282

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231 [finding that where statutory and constitutional claims are at issue and resolution of the statutory ground is adequate to resolve the matter, doing so is dispositive]

Third Holding:

The parties disagree about whether defendant forfeited his argument that the trial court erred by failing to conduct a full resentencing under section 1172.75. In the interests of judicial economy, to forestall an ineffective assistance of counsel habeas petition, and to avoid the constitutional issues raised by defendant regarding the performance of his trial counsel, we decline to enforce any forfeiture under the circumstances of this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

Fourth Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that 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. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

Where an issue on appeal requires that we determine the meaning of a statute, we review the trial court’s decision de novo. In any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. When the language of a statute is clear, we need go no further.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Scott (2014) 58 Cal.4th 1415, 1421

People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls]

Seventh Holding:

Section 1172.75 makes any sentence enhancement imposed prior to January 1, 2020, pursuant to 667.5(b) legally invalid unless it was imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code. If the court determines (through the process set forth in the statute) that the defendant’s sentence includes an invalid enhancement, it is required to recall the sentence and resentence the defendant. An eligible defendant under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [Where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000736

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence proving the defendant burned forest land as that term is defined by section 450(b).

First Holding:

Section 451 provides that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned any structure, forest land, or property. Section 451 identifies four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or property to burn; (3) arson of a structure or forest land; and (4) arson of property. Section 450(b) defines forest land as any brush covered land, cut-over land, forest, grasslands, or woods.

By contrast, property means real property or personal property, other than a structure or forest land. The maximum sentence for arson of a structure or forest land is double that of the maximum sentence for arson of uninhabited property.

Authority:

PEN 451

PEN 450

Second Holding:

At the heart of this case lies a question of statutory interpretation—the meaning of forest land—which we consider de novo. Our primary task in interpreting the statute is to determine the lawmakers’ intent. We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. Their plain meaning controls, unless the words are ambiguous. If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5-6

People v. Prunty (2015) 62 Cal.4th 59, 71

Third Holding:

To the extent we must determine whether there was sufficient evidence of forest land, we consider whether the record discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We examine the whole record in the light most favorable to the judgment and we do not reweigh evidence. In the end, the only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted forest land—presented sufficient proof in this case.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5

People v. Prunty (2015) 62 Cal.4th 59, 71

People v. Oyler (2025) 17 Cal.5th 756, 820

Fourth Holding:

It appears undisputed that the site here does not fall within the statutory definition of forest land as cut-over land, forest, or woods. The People argue it constitutes forest land as grasslands or brush covered land. We disagree. Merriam-Webster defines grassland as farmland occupied chiefly by forage plants and especially grasses, or land on which the natural dominant plant forms are grasses and forbs, or an ecological community in which the characteristic plants are grasses. Based on these definitions and the language of sections 450 and 451, we agree with the defendant that the mere presence of grass is insufficient to make an area a grassland.

The statutes distinguish between arson of forest land, including grasslands, and arson of other types of uninhabited property, suggesting that the Legislature intended forest land to mean something other than any land on which grass grows. The definitions suggest a grassland is an open land or prairie, occupied largely by grasses, rather than just any land with grass on it, such as a lawn or park. The 1979 amendment to the statute from “any grass” to “grasslands” suggests the Legislature intended to narrow the types of grassy areas giving rise to heightened punishment for arson.

Authority:

PEN 450

Fifth Holding:

Based on the definitions and the discussion in Costella, we believe the definition of “brush covered land” requires that at least some portion of the land in question be densely populated with brush, even if it is not continuously covered with brush. Here, there was insufficient evidence to support a conclusion that the area affected was forest land or grassland or brush covered land. In sum, there is insufficient evidence that the land at issue constituted forest land under sections 450, subdivision (b), and 451, subdivision (c). Therefore, the arson conviction must be reversed.

Authority:

PEN 450

PEN 451

People v. Costella (2017) 11 Cal.App.5th 1, 7

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]

First Holding:

As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.

Authority:

PEN 1172.75(f)

Second Holding:

This is a question of statutory interpretation that we review de novo.

Authority:

Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40

Third Holding:

When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

Fourth Holding:

Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which 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, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.

Authority:

PEN 1172.75

Fifth Holding:

Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of 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. Resentencing pursuant to section 1172.75 must “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. In no circumstance can resentencing result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

Sixth Holding:

Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”

Authority:

PEN 1172.75(f)

Seventh Holding:

The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.

Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 990–991

In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824

(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.

(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)

Amelioration, Evidence, Fifth Amendment, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000601

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from the denial of a petition for recall of sentence under section 1172.6. We conclude there is substantial evidence to support the trial court’s finding the defendant is guilty of murder, beyond a reasonable doubt, under a still-valid theory, and reversal for resentencing is unwarranted. As for the defendant’s evidentiary challenges, however, we hold the trial court prejudicially erred in admitting and relying on the grand jury transcript and police reports. As a result, we vacate the trial court’s order, and remand the matter for a new evidentiary hearing.

First Holding:

SB 1437 was enacted to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. Through section 1172.6, it provided a means of relief for those whose convictions would no longer be considered murder under the revised law.

Authority:

SB 1437

PEN 1172.6

Second Holding:

In the context of an appeal from a criminal conviction where substantial evidence does not support a conviction, the remedy is generally not a new trial. The sufficiency of the evidence is considered by examining the whole record in the light most favorable to the judgment and deciding whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272 [the federal and California Constitutions preclude retrial if a court determines the evidence at trial was insufficient to support a conviction as a matter of law]

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Navarro (2021) 12 Cal.5th 285, 311

Third Holding:

The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that he has been convicted through a judicial process which is defective in some fundamental respect.

Thus, as a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Hernandez (2003) 30 Cal.4th 1, 6

Fourth Holding:

Although principles of double jeopardy are not implicated in the voluntary section 1172.6 petition process, an insufficient evidence claim, coupled with additional challenges to the admission of evidence, may give rise to an issue of remedy.

If, considering the whole record in the light most favorable to the judgment, there is no substantial evidence to support the trial court’s denial of the section 1172.6 petition after an evidentiary hearing, it signals a substantive failure of proof by the government much like it does in the context of a direct appeal from a criminal conviction, suggesting reversal for resentencing is the appropriate remedy. Under 1172.6(d)(3) if the prosecution fails to sustain its burden of proof, the petitioner shall be resentenced.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1068

People v. Emanuel (2025) 17 Cal.5th 867, 875, 896 [directing resentencing be granted on remand where insufficient evidence supported denial of sec. 1172.6 petition after an evidentiary hearing]

Fifth Holding:

On the other hand, a prejudicial procedural error (such as an evidentiary error), on its own, typically signals nothing about whether the petitioner is or is not guilty of murder under the law as amended by SB 1437, but points only to a flawed judicial process. In cases involving only this latter situation, remand for a new evidentiary hearing is ordinarily the appropriate remedy. This remedy is especially apt in the context of section 1172.6, which was created by the Legislature as an act of lenity.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137 & fn. 3 [in the absence of a substantial evidence challenge, prejudicial evidentiary errors warrant remand for a new evidentiary hearing rather than remand for resentencing]

People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227, 1255 [remanding for a new evidentiary hearing where trial court impermissibly relied on evidence admitted at the petitioner’s trial that contradicted jury findings]

People v. Nuno (2024) 105 Cal.App.5th 1030, 1062–1063 [conditionally reversing denial of sec. 1172.6 petition after evidentiary hearing to permit the trial court to reconsider discovery motion, and to order a new evidentiary hearing if additional evidence disclosure was warranted]

People v. Hill (2024) 100 Cal.App.5th 1055, 1067–1068 [sentence modification procedure under sec. 1172.6 is an entirely voluntary process and constitutes an act of legislative lenity, not a new criminal prosecution]

Sixth Holding:

The grand jury transcript is not admissible under section 1172.6(d)(3)’s exception for evidence previously admitted at a prior hearing or trial.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116

Seventh Holding:

Since Davenport and Cody, appellate courts have considered whether section 1172.6(d)(3)’s hearsay exception extends to transcripts from grand jury proceedings. In Ocobachi, the court held it did not. The court explained the existing hearsay exception for former testimony found in Evidence Code section 1291 requires a showing of witness unavailability) and that the party against whom the former testimony was offered had been given the right and opportunity to cross-examine the declarant.

Unlike former testimony given during a petitioner’s preliminary hearing or original trial, Ocobachi pointed out the person investigated at a grand jury proceeding is not a party but a target who has no right to appear or offer evidence at grand jury proceedings. Thus, unlike in Davenport and Cody, admitting a transcript of grand jury testimony under section 1172.6(d)(3) would require ignoring both provisions of Evidence Code section 1291, creating an overbroad hearsay exception. In contrast, Robinson [review granted] concluded that the grand jury transcript may be considered at the section 1172.6 hearing.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158–1159

People v. Cody (2023) 92 Cal.App.5th 87, 103

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1183

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted Feb. 26, 2025, S288606

Eighth Holding:

The proper interpretation of a statute is a question of law we review de novo. We consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Ninth Holding:

Grand jury proceedings are not adjudicative, unlike hearings and trials in a criminal proceeding, nor are they adversarial. Rather, they are investigatory proceedings: a judicial officer does not typically preside over grand jury proceedings; a defendant does not receive notice of grand jury proceedings; and a defendant has no right to appear, offer evidence, or cross-examine witnesses. Despite similarities in their function, unlike preliminary hearings, grand jury proceedings are one-sided investigatory proceedings.

Authority:

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Petrilli (2014) 226 Cal.App.4th 814, 824

People v. Arroyo (2016) 62 Cal.4th 589, 595

Tenth Holding:

It would be anomalous for the Legislature to have amended the statute under SB 775 to tighten the evidentiary rules by excluding preliminary hearing testimony under section 872(b) [which allows a magistrate to find probable cause at a preliminary hearing based on the testimony of a qualified law enforcement officer that would otherwise be excluded as inadmissible hearsay], which is subject to cross-examination, but not exclude similar section 939.6(c), testimony received at a grand jury proceeding, which is untested by cross-examination.

Authority:

People v. Ledesma (1997) 16 Cal.4th 90, 101 [in construing statutes, courts should strive to avoid anomalous results]

Eleventh Holding:

We agree with the parties that the police reports and related witness statements collected by the police are hearsay because they were created out of court and were offered (and considered) for the truth of the matter asserted. These documents also contain out-of-court statements of witnesses that constitute another layer of hearsay when offered for the truth of the matter asserted.

While there may be an applicable exception for some of the information contained in the police reports, there must also be a hearsay exception for out-of-court witness statements recorded in the documents that were considered for the truth of the matter asserted. Many of the findings taken from the police reports involved nonparty witness statements recorded by the police that were considered for the truth of the matter asserted, but no hearsay exception was identified

Authority:

EVID 1200(a)[hearsay is an out-of-court statement offered to prove that its assertion is true]

People v. Hall (2019) 39 Cal.App.5th 831, 844–845 [arrest report admissible under official records exception to hearsay rule to the extent it reported an act, condition, or event observed by law enforcement pursuant to Evid. Code sec. 1280]

Walker v. Superior Court (2021) 12 Cal.5th 177, 192 [observing the general rule that each level of out-of-court statements in documents such as probation and police reports must fall under a hearsay exception to be admitted into evidence]

Twelfth Holding:

Judicial notice extends only to notice of the document’s existence, not necessarily to the truth of the facts contained within a document. Judicial notice of a document is not a vehicle for the admission of hearsay contained within the document.

Authority:

People v. Moore (1997) 59 Cal.App.4th 168, 178

People v. Woodell (1998) 17 Cal.4th 448, 458–459 [the fact that a document may be judicially noticed under Evid. Code sec. 452 does not mean all the hearsay statements within the document are admissible or noticeable]

Thirteenth Holding:

Prejudice is shown where it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Fourteenth Holding:

On other questions the defendant has asked us to address, we decline to do so in light of the remand and reversal. As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.

Authority:

People v. Slayton (2001) 26 Cal.4th 1076, 1084

Abstracts and Minutes, Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000576

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the jury’s verdict, the abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[Gary note: there was no legal analysis presented on the probation conditions issues, because the People agreed they were improper, and the court accepted the concession without further discussion or citation to authority.]

First Holding:

The abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[GARY note: the appellate court did not cite authority for its order to correct the abstract of judgment, but there is considerable authority that the court could have relied on, which I set forth below:]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

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

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In evaluating whether the evidence was sufficient to support a guilty verdict, we consider only the evidence presented and we disregard the jury’s not guilty or not true findings on other counts or enhancements.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 319

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Price (2017) 8 Cal.App.5th 409, 452–453

People v. Miranda (2011) 192 Cal.App.4th 398, 405–406

Third Holding:

Great bodily injury under section 245 is defined as an injury that is greater than minor or moderate harm. A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Where to draw that line is for the jury to decide. Great bodily injury can include contusions, abrasions, lacerations, and bruising.

The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which force was applied.

Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. In this context, likely to produce great bodily injury means more than a mere possibility. The evidence must prove more than a mere possibility that the force actually used would result in greater than moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Cross (2008) 45 Cal.4th 58, 64

People v. Escobar (1992) 3 Cal.4th 740, 752

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

People v. Wingo (1975) 14 Cal.3d 169, 176

People v. Medellin (2020) 45 Cal.App.5th 519, 527-528

People v. Thiel (2016) 5 Cal.App.5th 1201, 1213

In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162 [rejecting defendant’s argument that one blow to the face of the victim could not have been likely to cause great bodily injury]

People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [the statute focuses on force likely to produce great bodily injury; whether the victim in fact suffers any harm is immaterial]

Amelioration, Discretion, Eighth Amendment, Juveniles, Sentencing, Standard of review, Statutory interpretation

Case 000574

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition under section 1170(d) for recall of his sentence. The trial court did not appoint counsel and summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation for at least 15 years as required by section 1170(d)(1)(A). We find the trial court’s ruling on the calculation of appellant’s period of incarceration was erroneous as a matter of law, and appellant’s preconviction custody must be included to calculate he had been incarcerated for 15 years when he filed his section 1170(d) petition.

The matter is remanded for the superior court to appoint counsel and conduct the hearing as provided in section 1170(d).

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing, if the defendant meets additional statutory requirements.

Authority:

PEN 1170(d)

Second Holding:

When a trial court is not aware of the full scope of its sentencing discretion, a defendant is entitled to a 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

People v. Lynch (2024) 16 Cal.5th 730, 771-772

Third Holding:

The empanelment of separate juries at the defendant’s original trial in 2010 was likely based on Aranda and Bruton. Broadly stated, the Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. The problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

Authority:

People v. Aranda (1965) 63 Cal.2d 518

Bruton v. United States (1968) 391 U.S. 123

People v. Gallardo (2017) 18 Cal.App.5th 51, 68

People v. Jackson (1996) 13 Cal.4th 1164, 1208

People v. Washington (2017) 15 Cal.App.5th 19, 27

Fourth Holding:

Appellant filed his petition based on the recall and resentencing provisions of section 1170(d), effective January 1, 2013. Under Graham, the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. In response to Graham, the Legislature enacted section 1170(d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms.

Authority:

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

People v. Gibson (2016) 2 Cal.App.5th 315, 322–323

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

People v. Sorto (2024) 104 Cal.App.5th 435, 442

Fifth Holding:

On appeal, we review statutory interpretations de novo. We review the trial court’s factual findings to determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032

People v. Millard (2009) 175 Cal.App.4th 7, 26

Sixth Holding:

Absent a specific statutory definition of “has been incarcerated for at least 15 years” we may look to its plain meaning as understood by the ordinary person, which would typically be a dictionary definition. The Legislature did not use the word sentenced in section 1170(d)(1)(A). Instead, it used the word “incarcerated.”

Based on the plain meaning of “incarcerated,” the defendant’s period of incarceration for purposes of a section 1170,(d)(1)(A) began to run on the date the defendant was placed in jail, i.e., incarcerated, for the relevant charges.

Authority:

People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031, 1032

Seventh Holding:

Section 1171 expressly addresses the trial court’s procedures in postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute. It defines a postconviction proceeding to mean a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. Section 1171(c)(1) states that upon receiving a request to begin a postconviction proceeding that is authorized in law, the court shall consider whether to appoint counsel to represent the defendant. This section does not prevent the court from assigning counsel at a later time.

Authority:

PEN 1171

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Amelioration, Appellate Principles, Plea bargains, Retroactivity, Sentencing, Statutory interpretation

Case 000532

Posted on by Gary McCurdy

Error and/or relief

(You might need a cuppajoe or demitasse of tea or mug o’cocoa for this Error and/or relief, because Gary has a few words to share.  If THAT doesn’t put you to sleep, then you’re safe to move on to the 11 items I’ve listed as Holdings.  I happen to be quite interested in the impact of section 1171 on the application of the Stamps remedy that involves setting aside the plea if the prosecution doesn’t like effect that application of ameliorative provisions have where the upper term had been stipulated to in the original plea bargain.  This opinion alludes to that in what I have labeled as the Eleventh Holding.)

Upon recall of the sentence under section 1172.75, the trial court should have addressed whether the changes in the gang criminal activity law effected by AB 333 applied to the defendant’s judgment. The trial court’s resentencing order is vacated. The gang conviction (sec. 186.22(a)) on count 3 is reversed and the true finding on the gang enhancement (sec. 186.22(b)(1)) on count 4 is vacated. The prosecution shall have the opportunity to establish the gang conviction and enhancement under the current version of section 186.22. The matter is remanded for further proceedings.

(Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

(This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

(On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

(But Wait! There’s More!

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, (renumbered) section 1172.75 made this change retroactive.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A defendant is entitled to a full resentencing under section 1172.75 even when the original sentence was imposed pursuant to a plea agreement.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

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

People v. Carter (2023) 97 Cal.App.5th 960, 972

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. Resentencing 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 this section shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Effective January 1, 2022, Assembly Bill 333 [AB 333] made several changes to the criminal street gang laws.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

PEN 186.22

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

Fifth Holding:

Previously, a defendant who had committed an offense to benefit the reputation of a criminal street gang, but with no other benefit, was subject to the enhancement. Amended section 186.22(g) now requires the prosecution to show that the common benefit to the gang is more than reputational. Additionally, to prove a pattern of gang activity was collectively engaged in by members of the gang under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

PEN 186.22

People v. Sek (2022) 74 Cal.App.5th 657, 667

People v. Clark (2024) 15 Cal.5th 743, 749

Sixth Holding:

Under Estrada, ameliorative changes to criminal statutes apply to all cases not final on appeal absent contrary legislative intent. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Assembly Bill 333 added new elements to the substantive offense and enhancements in section 186.22, and thus its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 744–745

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

People v. Nasalga (1996) 12 Cal.4th 784, 792

People v. Lopez (2025) 17 Cal.5th 388, 394–395

Seventh Holding:

The defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. The defendant regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for Estrada purposes.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

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

Eighth Holding:

Courts that have applied AB 333 retroactively have permitted retrial of the gang charges on remand when the defendant was convicted following a jury trial. As one court explained, the proper remedy for this type of failure of proof —where newly required elements under amended section 186.22 were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges. We see no reason the prosecution should be precluded from establishing the elements of section 186.22 as amended by AB 333 because the defendant’s sentence resulted from a plea agreement.

Case law has recognized the prosecution must have an opportunity to establish an element of an offense subsequently added by statute even if the defendant was convicted pursuant to a plea agreement. When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. Such a retrial is not barred by the double jeopardy clause or ex post facto principles. Fairness dictates that the prosecution be given the opportunity to establish the additional element on remand when a conviction based on a plea bargain is vacated due to a statutory amendment adding an element the prosecution previously had no reason to prove.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 764

People v. Cooper (2023) 14 Cal.5th 735, 746–747

People v. Sek (2022) 74 Cal.App.5th 657,669-670

People v. E.H. (2022) 75 Cal.App.5th 467, 480

People v. Lopez (2020) 57 Cal.App.5th 409, 416

People v. Eagle (2016) 246 Cal.App.4th 275

People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 and fn. 2

Ninth Holding:

Requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. Because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound, a trial court may not violate the agreement by modifying it. Under Doe, however, the terms of the plea bargain include future changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Authority:

PEN 1016.8

PEN 1192.7(b)

Doe v. Harris (2013) 57 Cal.4th 64, 73–74

People v. Stamps (2020) 9 Cal.5th 685, 701

People v. Harrell (2023) 95 Cal.App.5th 161, 168

Tenth Holding:

Pursuant to Doe, the defendant’s plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333, and we agree with the parties that AB 333 applies retroactively to the defendant’s case. Requiring the parties’ compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. For these reasons, the prosecution must be given an opportunity on remand to establish the elements of the substantive gang offense charged on count 3 and the gang enhancement on count 4 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 333, the trial court must conduct a full resentencing.

Authority:

Doe v. Harris (2013) 57 Cal.4th 64, 73

People v. Sek (2022) 74 Cal.App.5th 657,669-670

People v. Valenzuela (2019) 7 Cal.5th 415, 425

Eleventh Holding:

As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts. We note though for the benefit of the parties and the trial court that the defendant’s resentencing under section 1172.75 remains subject to section 1171, which provides (effective 1/1/2025) that any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement. Section 1171 was further amended effective 1/1/2026 to provide that this section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding. On remand, the trial court must comply with the current version of section 1171 when resentencing the defendant.

Authority:

PEN 1171(c)(3) and (e)

People v. Slayton (2001) 26 Cal.4th 1076, 1084