Tag Archives: Prior convictions

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

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

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall 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:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Appellate Principles, Duty of the court, Sentencing

Case: 000185

Posted on by Gary McCurdy

Error and/or relief

The defendant’s Penal Code section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions. The trial court held a resentencing hearing, struck the invalid enhancements, but declined to further reduce defendant’s sentence. We reverse for some certain conceded errors in the pronouncement of sentence, including with respect to custody credits, but otherwise affirm.

First Holding:

A trial court conducting a resentencing under section 1172.75 has discretion to dismiss a “strike” allegation under the Three Strikes law. There was no abuse of discretion here.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504

People v. Williams (1998) 17 Cal.4th 148, 161

Second Holding:

The trial court calculated certain elements of the defendant’s sentence by subtracting the one-year prior prison term enhancements from his original sentence as opposed to the later sentence imposed on remand following a determination that it was error to sentence on two–rather than just one–of the counts because of Penal Code section 654. There was some further ambiguity in the sentence imposed at the section 1172.75 hearing. The matter must be remanded to the trial court to strike the prior prison term enhancements on Counts Two and Three, to clarify the sentence on Count Three remains stayed, and to clarify the status of the prior serious felony enhancement on Count Two.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Third Holding:

The trial court improperly delegated calculation of his custody credits to the California Department of Corrections and Rehabilitation.

Authority:

PC 2900.1

PC 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 23-24

Amelioration, Retroactivity, Sentencing

Case: 000182

Posted on by Gary McCurdy

Error and/or relief

In light of AB 333, the trial court’s true findings on the prior serious felony enhancement and the strike prior allegations must be reversed. It is undisputed that there was insufficient evidence that defendant’s prior gang-related conviction (sec. 186.22(a)) satisfied the more stringent evidentiary requirements imposed by the change in law. Therefore, the court erred in considering that conviction to double defendant’s sentence. Accordingly, we will vacate the sentence and remand the matter for further proceedings. The defendant’s sentence is vacated and the matter is remanded for further proceedings, including a full resentencing. On remand, the People may elect to retry, under current law, the allegation that defendant’s prior gang-related conviction qualifies as a serious felony and strike prior for purposes of the three strikes law and a prior serious felony enhancement.

First Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) narrowed liability for gang-related offenses by requiring more stringent evidentiary requirements for proving them.

Authority:

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

People v. Rojas (2023) 15 Cal.5th 561, 576

Second Holding:

AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It applies to the analogous determination under section 667(a) for prior serious felony enhancements. Thus, AB 333’s amendments to section 186.22 apply to the current determination of whether the prosecution has proven the prior serious felony enhancement allegations in this case. In other words, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 605, 607

Third Holding:

Where, as here, AB 333 applies retroactively to the determination of whether a prior gang-related conviction qualifies as a serious felony for purposes of the three strikes law and a prior serious felony enhancement we review for harmless error pursuant to Chapman. Vacating a true finding is required unless it appears beyond a reasonable doubt that the finding would have been the same under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

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

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

People v. Lewis (2006) 139 Cal.App.4th 874, 887

Fourth Holding:

At the time the defendant entered his guilty plea, the People were not required to prove, and defendant did not admit, the current evidentiary requirements of that provision, as amended by AB 333. Under these circumstances, the appropriate remedy is to vacate the true findings on the allegations that defendant’s prior gang-related conviction qualifies as a prior serious felony for purposes of the three strikes law and the prior serious felony enhancement and remand the matter to the trial court to allow the People the opportunity to retry those allegations under current law, considering the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Amelioration, Sentencing

Case: 000173

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from an order finding her ineligible for resentencing under Penal Code section 1172.75. The trial court found her ineligible because the prior prison term enhancement had been stayed and not executed. We reverse with instructions that the trial court conduct further proceedings under that section.

First Holding:

The defendant is not requesting resentencing under the Three Strikes Reform Act. She was not even eligible for the Three Strikes Reform Act process because her current felony is a serious felony, to which the Reform Act is inapplicable. She is requesting the trial court exercise its discretion under in the furtherance of justice under Romero to strike one of her prior strike offenses. Because she is not eligible for (and is not seeking relief under) the Three Strikes Reform Act, section 1172.75 does not unconstitutionally conflict with it.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 347, 363-364

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

Second Holding:

A defendant is entitled to the provisions of section 1172.75 even when execution was stayed for the now-invalid enhancement for a prior prison term.

Authority:

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

Third Holding:

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

People v. Espino (2026) ___ Cal.5th ___ (S286987)

Fourth Holding:

In 2020, the Legislature enacted section 1172.75, which limits the circumstances when section 667.5, subdivision (b) sentencing enhancements may be imposed. Someone serving a sentence that includes an enhancement that section 1172.75 now renders invalid is eligible for possible resentencing.

Authority:

PEN 1172.75

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

Fifth Holding:

Though inapplicable here because the defendant is ineligible for relief under the Three Strikes Reform Act, the Reform Act’s revised penalty provisions may be applied at a section 1172.25 resentencing if section 1170.126’s substantive requirements are satisfied.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861