Tag Archives: Prior convictions

Amelioration, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) 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. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)

Amelioration, Sentencing

Case: 000366

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by: (1) refusing to strike a prior serious felony enhancement attached to the defendant’s conviction for one count of possession of a firearm after an associated gang enhancement was dismissed; and (2) maintaining an indeterminate sentence on that same count. Accordingly, we will vacate the sentence for that count, strike one of the associated serious felony enhancements, and remand for resentencing consistent with Penal Code section 667(e)(1).

First Holding:

The defendant was sentenced to a Three Strikes indeterminate sentence and the sentence was enhanced for a prior serious felony conviction. During the appeal from that conviction, AB 333 was enacted to change the elements of section 186.22 regarding the crime and enhancements for gang criminal activity. As a result of the opinion in Valencia we reversed the conviction for violation of section 186.22 in count 5, and the jury’s finding that defendant committed the attempted shooting at an occupied vehicle (count 1) and possessed a firearm (count 7) for the benefit of a criminal street gang.

We remanded to give the prosecution an opportunity to retry count 5 and the gang enhancement allegations on counts 1 and 7 under amended section 186.22. The trial court granted the prosecution’s motion to dismiss count 5 and the gang enhancement allegations as to counts 1 and 7. The court denied the defendant’s request to sentence the defendant to a determinate term and rejected his argument that the basis of the count 7’s status as serious felony had been undermined by AB 333, and it was no longer a serious felony to support either the five-year enhancement for his prior serious felony or as a third strike. The court erred. Count 7 was only considered a serious felony by reason of the jury’s true finding on the gang enhancement. With the gang enhancement out of the picture, count 7 could no longer be considered a serious felony.

Authority:

PEN 186.22

PEN 667

PEN 1192.7(c)(28)

People v. Valencia (2021) 11 Cal.5th 818

Second Holding:

Count 7 was only a serious felony by reason of the gang enhancement, which had been stricken. Therefore, he was not convicted in the current case of a third strike, and was subject to only a doubling of his sentence, not a life term.

Authority:

PEN 667

Amelioration, Discretion, Sentencing

Case: 000361

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him on one of his nonserious felony counts under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life on that count to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

As a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. The case must be remanded for the superior court to determine whether sentencing the defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it is so determined, the superior court must reimpose the indeterminate term. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Second Holding:

The superior court did not have the benefit of Guevara, meaning that it was not fully aware of the scope of its discretionary powers when it resentenced the defendant. We remand for resentencing because the record does not clearly indicate 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

Amelioration, Retroactivity, Sentencing

Case: 000360

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

Section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. Because section 1172.75 and section 1170.126, thus interpreted, operate harmoniously, the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75.

Authority:

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

Second Holding:

It is unclear from the record as originally filed how the section 1172.75 proceedings had been initiated. Section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely by a defendant)

Third Holding:

Construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing maintains the integrity of both statutes, such that the two may stand together. The legislative history suggests the voters understood that where a court conducting a resentencing inquiry for Third Strike defendants serving an indeterminate term found relief would pose an unreasonable risk of danger to public safety, the defendant would not be entitled to resentencing. Interpreting section 1172.75 as incorporating the discretionary public safety determination of section 1170.126 would honor this concern and thus eliminate constitutional doubt.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865-866

Fourth Holding:

In exercising this discretion, the voters established that the resentencing court may consider: (1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 866, fn. 9

Fifth Holding:

The resentencing court is not bound by the prior dangerousness determination associated with the defendant’s section 1170.126 petition. Rather, section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety’ as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

People v. Flores (2022) 73 Cal.App.5th 1032, 1039

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. 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. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

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

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385