This bird was made upside down. Whoever heard of legs on the back and wings on the chest?
Today is just a short post. I figure you can memorize only so many case holdings in a day, right? Yep, I have a heart.
Summary of Summaries
Another abstract of judgment needed correction to reflect that listed fines and fees had been vacated.
More errors in figuring out what to do on resentencing under 1172.75, including examining AB 333 on gang activity. And though the court did not reverse the denial of the defendant’s request for dismissal of various things under section 1385, I’ve included what I think is important language regarding that statute.
Another case confirms that if one loses on a bare bones check box petition filed for recall under 1172.6 (regarding changes in the homicide law), the court may remand to give the petitioner an opportunity to file an amended petition that actually demonstrates eligibility for relief.
(Not to worry, there is no case 000089.)
Case: 000087
The matter is remanded to allow the trial court to amend the abstract of judgment to reflect that the $30 criminal conviction assessment (Gov. Code, sec. 70373), the $40 court operations assessment (Pen. Code, sec. 1465.8), the $300 restitution fine (Pen. Code, sec. 1202.4), and the $300 parole revocation restitution fine (Pen. Code, sec. 1202.45), were vacated.
Holding: The court has inherent power to correct clerical errors in abstract of judgment [See] People v. Baker (2021) 10 Cal.5th 1044, 1109.
Case: 000088
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 It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee. 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 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. [See] PC 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. [See] 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. [See] PC 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. [See] 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; Rules of Court, rule 4.409 [sentencing factors “will be deemed to have been considered unless the record affirmatively reflects otherwise”].
Fifth Holding: Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion [See] 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. [See] 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.
Case: 000090
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. [See] 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. [See] 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. [See] People v. Patton (2025) 17 Cal.5th 549, 569 569–570; People v. Glass (2025) 110 Cal.App.5th 922, 930–931.
(That’s it for today’s post. Are you prepared for an exam? Me neither.)