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The abstract of judgment is incorrect in that it indicates that the trial court imposed a restitution fund fine of $330 pursuant to section 1202.4 but at sentencing the trial court stated that the amount of that fine was $300. It must be corrected.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
People v. Zackery (2007) 147 Cal.App.4th 380, 385
We remand for the trial court to modify the judgment to reflect an additional five days of presentence custody credit.
The defendant is entitled to all days of custody, and there was an error in the trial court’s calculation.
PEN 2900.5
At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.
Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.
Section 1172.75(d)(3) provides that the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.
PEN 1172.75
People v. Monroe (2022) 85 Cal.App.5th 393, 402
We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.
We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.
People v. Mungia (2008) 44 Cal.4th 1101, 1118
People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840
People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]
Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.
PEN 1050
It was error to deny defendant’s petition for recall of sentence under section 1172.6, because substantial evidence does not support the trial court’s findings that he was a major participant who acted with reckless indifference to human life.
Effective January 1, 2019, SB 1437 (2017-2018 Reg. Sess.) overhauled the state’s murder statutes to more equitably sentence offenders according to their involvement in homicide offenses. It amended section 188 to require that a principal act with express or implied malice and amended section 189 to state that a person can be liable for felony murder only if: (1) the person was the actual killer; (2) the person, with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.
These ameliorative changes eliminated murder based on the natural and probable consequences doctrine or other imputed malice theories based solely on a person’s participation in a crime and narrowed the first degree felony murder rule. The Legislature has since expanded eligibility for relief to those convicted of manslaughter. Individuals convicted under the former law may seek retroactive relief under the law as amended pursuant to section 1172.6 Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by the changes to section 188 or 189.
SB 1437
PEN 1172.6
PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]
People v. Strong (2002) 13 Cal.5th 698, 707 [SB 1437 significantly limited the scope of the felony-murder rule]
We review the denial of a section 1172.6 petition following an evidentiary hearing for substantial evidence. Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.
We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal.
People v. Emanuel (2025) 17 Cal.5th 867, 885
People v. Clements (2022) 75 Cal.App.5th 276, 298
People v. San Nicolas (2004) 34 Cal.4th 614, 657-658
People v. Pham (2009) 180 Cal.App.4th 919, 924-925
People v. Zamudio (2008) 43 Cal.4th 327, 358
When SB 1437 amended Penal Code section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark. Banks and Clark, in turn, utilized Tison and Enmund as guideposts to delineate the contours of the major participant and reckless indifference standards for felony murder.
Banks and Clark laid out nonexclusive lists of factors that a court may consider when determining whether a defendant is a major participant in felony murder, or acted with reckless indifference to human life. No one of the Banks or Clark factors is necessary, nor is any one of them necessarily sufficient to establish a defendant was a major participant or acted recklessly indifferent to a grave risk of death during an offense.
People v. Banks (2015) 61 Cal.4th 788, 803
People v. Clark (2016) 63 Cal.4th 522, 616, 618
Tison v. Arizona (1987) 481 U.S. 137
Enmund v. Florida (1982) 458 U.S. 782
People v. Strong (2002) 13 Cal.5th 698, 710
Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. It encompasses a willingness to kill or to assist another in killing to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.
Recklessness has both a subjective and an objective component. Subjectively, the defendant must consciously disregard risks known to him. Objectively, recklessness is determined by what a law-abiding person would observe in the actor’s situation, that is, whether defendant’s conduct involved a gross deviation from the standard of conduct that a law-abiding person in the actor’s situation would observe. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.
People v. Clark (2016) 63 Cal.4th 522, 616-617
People v. Emanuel (2025) 17 Cal.5th 867, 884
In re Scoggins (2020) 9 Cal.5th 667, 677 [the fact a participant or planner of an armed robbery could anticipate lethal force might be used is not sufficient to establish reckless indifference to human life]
It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.
The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.
PEN 188(a)(3)
People v. Curiel (2023) 15 Cal.5th 433, 448–449
People v. Strong (2022) 13 Cal.5th 698, 708
At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
PEN 1172.6(d)(3)
We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.
People v. Clements (2022) 75 Cal.App.5th 276, 298
People v. Manibusan (2013) 58 Cal.4th 40, 87
To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.
People v. Canizales (2019) 7 Cal.5th 591, 602
People v. Mumin (2023) 15 Cal.5th 176, 191
People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079
People v. Smith (2005) 37 Cal.4th 733, 741
A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.
People v. Nguyen (2015) 61 Cal.4th 1015, 1054
Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.
People v. Waidla (2000) 22 Cal.4th 690, 735
The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.
Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286
When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.
People v. Estrada (2024) 101 Cal.App.5th 328, 338