Tag Archives: Alternative sentencing scheme

Amelioration, Fines and fees, Sentencing

Case 000620

Posted on by Gary McCurdy

Error and/or relief

At a full resentencing conducted while vacating the defendant’s one-year prior prison sentence enhancements pursuant to Penal Code section 1172.75, the trial court declined to consider whether two of defendant’s prior “strike” convictions were still valid under the Three Strikes Reform Act of 2012, denied his request to dismiss those strikes under section 1385, imposed a new 10-year criminal protective order, and re-imposed a $5,000 restitution fine.

The matter is reversed for the court to hold a full resentencing hearing and exercise its discretion on whether or not to strike the prior convictions. Further, the court had no jurisdiction to reimpose a restitution fine because it had been ordered more than 10 years earlier and was rendered expired.

First Holding:

Under section 1172.75, a defendant who is eligible to have a prior prison sentence enhancement stricken is entitled to a full resentencing, at which time the trial court is to apply 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.

Authority:

PEN 1172.75

People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted* Oct. 23, 2024, S286987

[*Gary note: The Supreme Court issued its opinion in Espino on July 2, 2026, and affirmed the result in the Court of Appeal Espino decision–that a person is entitled to relief under section 1172.75 even if the punishment for the now-invalid prior prison term enhancement was stricken–resolving a question that was left unanswered in People v. Rhodius (2025) 17 Cal.5th 1050)]

People v. Green (2024) 104 Cal.App.5th 365, 373

Second Holding:

In Guevara, our Supreme Court held that a trial court engaged in a full resentencing under section 1172.75 of a person serving a life sentence under the Three Strikes Law must apply the Three Strikes Reform Act of 2012, including its provision according trial courts a discretionary override—as to defendants who would otherwise be eligible for relief—not to grant relief if the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Third Holding:

Reversal and remand are necessary so that the trial court may consider whether the Reform Act would apply to the third-strike sentences imposed in this case and, if so, whether exercise of the court’s discretionary override is warranted. On remand, the court may also entertain any further requests to dismiss the prior strike convictions under section 1385(a)—but not under section 1385(c).

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243-244

Fourth Holding:

However, the court may not impose a restitution fine pursuant to section 1202.4(b) because the 2025 amendment to section 1465.9 provides that a restitution fine expires 10 years after the date of imposition. Because the restitution fine in this case was imposed over 25 years ago, it expired and may not be reimposed.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another point)

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the 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.

Second, the court must apply the sentencing rules of the Judicial Council and apply 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.

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Amelioration, Elements of crime, Sentencing

Case 000607

Posted on by Gary McCurdy

Error and/or relief

Because the prior strikes were incurred before the AB 333 amendments to criminal gang activity laws, and were dependent on gang activity findings made under the old law, the sentence is reversed and the matter is remanded for the court to determine whether those prior convictions would still be considered strikes under the current law on gang activity crimes.

Holding:

Effective January 1, 2022, AB 333 (2021–2022 Reg. Sess.) significantly modified the elements of gang-related offenses and enhancements. After appellant was sentenced, the California Supreme Court issued its opinion in Fletcher. In Fletcher, the high court held that when a defendant has a conviction under the prior version of section 186.22, whether that conviction still qualifies as a prior serious felony for purposes of the “Three Strikes” law and prior serious felony enhancements must be viewed under the current version of section 186.22. Because the sentence is vacated, the court shall conduct a full resentencing consistent with current law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

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

Due process, Pleading, Sentencing

Case 000603

Posted on by Gary McCurdy

Error and/or relief

The court sentenced the defendant under the One Strike Law (section 667.61), but relied on special circumstances that had not been alleged in the information to impose sentences of 25 years to life on several counts. Because of the lack of notice to the defendant that the specific special circumstances would be relied on, the sentences on those counts are reversed and the matter is remanded.

First Holding:

A defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for the defendant’s crimes.

Due process does not require rigid code pleading or the incantation of magic words. To satisfy due process, it is sufficient for an accusatory pleading to provide the defendant fair notice of a particular one strike sentence the prosecution is seeking and of which facts it intends to prove to support that sentence.

The ambiguity of the one strike allegation is that section 667.61 (a) provides for a 25-year-to-life sentence if the offense is committed under two or more circumstances in subdivision (e), and the information alleged only one circumstance, i.e., multiple victims. While the information notifies defendant of the 25-year-to-life term that applies under subdivision (a), that subdivision is not triggered based on the single subdivision (e) circumstance alleged.

Thus, the information is, at best, ambiguous and confusing as to whether the prosecution intended to seek terms of 25 years to life and, if so, based on which alleged circumstances, rather than 15 years to life based on the multiple victim circumstance.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 747

In re Vaquera (2024) 15 Cal.5th 706, 721, 720, 723-725

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case 000591

Posted on by Gary McCurdy

Error and/or relief

The court erred in finding true the defendant’s two prior strikes. The true findings on appellant’s prior strike conviction allegations are reversed, and the matter is remanded to the trial court. Upon remand, the court is directed to give the People the opportunity to retry the strike allegations.

First Holding:

In 2022, AB 333 went into effect and made changes to the law on gang enhancements, including narrowing the definitions of a criminal street gang, and pattern of criminal activity.

Authority:

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

Second Holding:

The defendant’s 2014 prior felony conviction was a strike because it included a gang enhancement under the then-version of section 186.22. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. The current law applicable to a nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

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

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

Third Holding:

There was insufficient evidence for the court to find that the defendant’s 2010 conviction for grossly negligent discharge of a firearm qualified as a strike prior, because no evidence was presented that the defendant personally used the firearm. It is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor. The People in this case presented evidence only of appellant’s conviction, and not any information regarding the conviction’s underlying facts.

Thus, the People proved nothing more than the least adjudicated elements of the prior conviction. Because there was no admission or evidence that appellant personally used a firearm, which would qualify his prior section 246.3 conviction as a serious felony pursuant to section 1192.7(c) the trial court’s true finding was in error. The remedy in such a case is remand for retrial at the prosecution’s election.

Authority:

People v. Golde (2008) 163 Cal.App.4th 101, 112-113

People v. Rodriguez (1998) 17 Cal.4th 253, 262

People v. Barragan (2004) 32 Cal.4th 236, 239

Abstracts and Minutes, Duty of the court, Sentencing

Case 000569

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing on a prior strike where the defendant did not waive a trial and did not admit the prior. Errors in the minute order must be corrected to reflect that a sentence on one count was 364 days in the county jail, not 365 days.

First Holding:

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The prosecution bears the burden of proving a strike prior allegation beyond a reasonable doubt.

Authority:

PEN 1158

People v. Frierson (2017) 4 Cal.5th 225, 233

Second Holding:

This procedure was not followed here. While the defendant expressed his intention to admit the strike prior, the record shows he never actually did so. Nor did a jury or the trial court find beyond a reasonable doubt that the defendant suffered the alleged strike prior. Accordingly, we must reverse the true finding as to the strike prior allegation and remand for the trial court to hold a hearing on whether the defendant elects to admit the strike prior allegation or proceed to trial on it and hold further proceedings accordingly.

Authority:

People v. Strike (2020) 45 Cal.App.5th 143, 154 [when true finding on strike prior allegation is reversed, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation]

Third Holding:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. Count 2 is subject to this 364-day limit on imprisonment. Yet here, the Felony Minutes—Pronouncement of Judgment dated specify the defendant’s term of imprisonment for count 2 to be 365 days. Under section 18.5, this length of imprisonment is improper. Accordingly, on remand we direct the trial court to amend the Felony Minutes—Pronouncement of Judgment to reflect a term of imprisonment of 364 days on count 2.

[GARY Note: the court listed no authority for directing the correction of the minute order, so I have listed some cases that it could have relied on.]

Authority:

PEN 18.5

People v. Zackery (2007) 147 Cal.App.4th 380, 387-38

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

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000556

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.

First Holding:

Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.

Authority:

People v. Catarino (2023) 14 Cal.5th 748, 752

Second Holding:

Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).

Authority:

PEN 667.6(c)

PEN 667.6(d)

PEN 269

Third Holding:

The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.

Authority:

People v. Carbajal (2013) 56 Cal.4th 521, 534

Fourth Holding:

In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.

Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.

Authority:

PEN 667.6(d)(2)

People v. Jones (2001) 25 Cal.4th 98, 104

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266

People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18

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. Salazar (2023) 15 Cal.5th 416, 419, 424

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.

Authority:

People v. Shiga (2016) 6 Cal.App.5th 22, 40

People v. Brown (2007) 147 Cal.App.4th 1213, 1229

Seventh Holding:

When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.

Authority:

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Garza (2003) 107 Cal.App.4th 1081, 1092

Eighth Holding:

Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.

Authority:

PEN 669(a)

People v. Midell (2025) 113 Cal.App.5th 1060, 1085

People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262

Ninth Holding:

It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 729

Discretion, Sentencing

Case 000543

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.

First Holding:

Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

PEN 1385

People v. Rogers (2025) 108 Cal.App.5th 340, 362

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Second Holding:

The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854

Fourth Holding:

We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377-378

Fifth Holding:

Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.

Authority:

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

Amelioration, Sentencing

Case 000542

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75.

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 that a defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB No. 136 retroactive by adding what is now numbered section 1172.75 to the Penal Code. Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

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

Second Holding:

A court has long had the authority to exercise its discretion and dismiss one or more prior serious felonies that are charged as Strikes under the Three Strikes law. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 hearing. Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either. As the trial court misunderstood the scope of its discretion, he case is remanded for a resentencing hearing. At that hearing, the trial court is directed to consider its full range of lawful sentencing options, including whether to grant or deny the defendant’s Romero motion.

Authority:

People v. Superior Court (Romero) 1996 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 345, 362

Sentencing

Case: 000519

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for the trial court to reconsider whether to strike one of the defendant’s prior convictions.

First Holding:

The defendant contends that the trial court erred in denying his Romero motion to strike one of his strikes and sentencing him as a third strike offender because his two prior strike convictions for robbery were based on a single act. In a series of cases, our California Supreme Court has addressed how many strikes should be counted when a defendant has multiple convictions arising from related acts. In Fuhrman, the defendant had multiple strike convictions stemming from an incident in which he stole a car, collided with another car and brandished a gun at that car’s driver, and then forced his way at gunpoint into a truck and made the truck driver take him from the scene. Although the court held that qualifying strike convictions can be brought and tried in the same case and counted as separate strikes, the court left open whether the Three Strikes law allows separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654.

The court addressed that issue in Benson. In that case, the defendant entered an apartment and stabbed its occupant, resulting in strike convictions for residential burglary and assault with intent to commit murder. The court held that crimes sustained in one action and arising from the same facts are separate strikes, even if the crimes were closely connected and punishment on one had been stayed under section 654.

Next, Vargas held that two prior convictions arising out of a single act against a single victim cannot constitute two strikes under the Three Strikes law. The single act in Vargas was forcibly taking the victim’s car, which resulted in convictions for robbery and carjacking.

Finally, while this matter has been pending on appeal, our California Supreme Court issued Shaw, which involved two victims. In that case, the defendant had two prior convictions for gross vehicular manslaughter arising from an incident in which Shaw struck a car, killing two passengers. The court found that its rationale in Vargas applied, notwithstanding that multiple victims were involved.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Fuhrman (1997) 16 Cal.4th 930, 941

People v. Benson (1998) 18 Cal.4th 24, 26

People v. Vargas (2014) 59 Cal.4th 635, 637, 645

People v. Shaw (2025) 18 Cal.5th 1089, 1093

Second Holding:

In this case, the extent of the defendant’s participation in the two felonies alleged as prior strikes is not clear. Did he commit one act as an aiding and abetting getaway driver while others robbed two victims, or did he participate more directly in each of the robberies of two victims? Further, the trial court did not have the benefit of Shaw at the time of sentencing and it therefore may have applied the wrong legal standard, which constitutes an abuse of discretion. We therefore remand this matter to the trial court to reconsider the defendant’s Romero motion.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares 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. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

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

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, the court must apply the sentencing rules of the Judicial Council and apply 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.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838