Tag Archives: Prior convictions

Amelioration, Sentencing

Case 001131

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in finding the defendant ineligible under section 1172.75 where punishment for the now-invalid prior prison term enhancement was struck by the trial court at the time of the original sentencing.

First Holding:

Before the year 2020, former section 667.5 of the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term the defendant had previously served for a felony. In an effort to reduce the societal and fiscal burdens of incarceration, the Legislature amended the Penal Code to eliminate these enhancements, except in cases involving prior terms for sexually violent offenses. It later made these changes retroactive.

The operative provision states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision section 667.5(b) is legally invalid (with an exception not pertinent in this case).

Authority:

People v. Espino (2026) 20 Cal.5th 57, 60

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. That resentencing must be a full resentencing, at which the trial court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

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resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Regardless, the resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Espino (2026) 20 Cal.5th 57, 60

Third Holding:

The phrase ‘lesser sentence’ need not refer to a shorter sentence; rather, it can be understood to mean that the new sentence must eliminate whatever adverse effects flow from the now-invalid prior prison term enhancement, even if those effects do not take the form of a longer term of imprisonment.

Authority:

People v. Espino (2026) 20 Cal.5th 57, 62

Fourth Holding:

A true finding on a prior prison term allegation is a part of the sentencing order, even when the associated punishment is stricken. It follows that, as a matter of ordinary usage, an enhancement included in the sentence in a criminal case may be ‘imposed’ even if the punishment for that enhancement is stricken. Even punishment-stricken enhancements have potential adverse consequences should a court ever conduct a resentencing to correct other errors in the defendant’s sentence.

Authority:

People v. Espino (2026) 20 Cal.5th 57, 64-65

Fifth Holding:

The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because the punishment for the now-invalid prior prison term enhancement was struck at the original sentencing.

As explained by Espino, that reasoning was in error. The matter must be reversed and remanded with directions to the court below to hold a full resentencing hearing.

Authority:

People v. Espino (2026) 20 Cal.5th 57

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Amelioration, Retroactivity, Sentencing

Case 001037

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding the defendant was not eligible for resentencing under section 1172.75 because his prior prison term enhancement had been stayed. Remanded for full resentencing.

First Holding:

Effective January 1, 2020, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. The amendment was retroactive to any case in which the judgment was not final. In 2022, what is now section 1172.75(a) became effective and made the change retroactive to now-invalid prior prison term enhancements imposed before January 1, 2020.

Authority:

PEN 667.5(b)

PEN 1172.75

People v. Lopez (2019) 42 Cal.App.5th 337, 340-342

Second Holding:

The statute requires the Department of Corrections and Rehabilitation (CDCR) to prepare a list of inmates serving a term that included imposition of a now-invalid prior prison term enhancement, and notify the appropriate sentencing court. Upon receiving names from CDCR, the sentencing court must review each person’s current judgment to confirm that it includes a qualifying enhancement and, if it does, it must recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(c)

Third Holding:

The trial court concluded that the defendant was not eligible for relief because the execution of the imposition of sentence on the now-invalid prison term enhancement had been stayed, and thus he was not serving a sentence so enhanced. Since then, however, the Supreme Court has clarified that such individuals are not ineligible for resentencing under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068 [Where a qualifying prison prior was imposed and stayed, the defendant is entitled to a section 1172.75 resentencing hearing]

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing, Standard of review

Case 001011

Posted on by Gary McCurdy

Error and/or relief

The court erred in ruling that the defendant was ineligible for resentencing under section 1172.75 because the abstract of judgment did not reflect any now-invalid prior prison term enhancements. The abstract of judgment was in error.

First Holding:

Before 2020, the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony. Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses.

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. 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.

Authority:

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050, 1053-1054

Second Holding:

In section 1172.75(b), the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes such an enhancement. Section 1172.75(b) requires the California Department of Corrections and Rehabilitations to identify for the sentencing courts all persons currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(b) and (c)

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that 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, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

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

People v. Garcia (2024) 101 Cal.App.5th 848, 855 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.]

Fourth Holding:

We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the court’s application of the law to the facts is arbitrary or capricious. However, where the appeal from a resentencing order raises a question of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856, 857

People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word imposed as used in 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affirmed (2026) 20 Cal.5th 57

Fifth Holding:

The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. In this instance, the prior convictions were never stricken, and thus should have been reflected in the abstract of judgment. The defendant was eligible for resentencing under section 1172.75.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.]

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

In resentencing the defendant, the court abused its discretion in not giving proper consideration to whether to strike prior strike convictions. Remanded for proper consideration.

First Holding:

Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.

In resentencing the defendant in the same manner as if they had not previously been sentenced, the resentencing court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense.

Authority:

PEN 1172.1

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

Section 1385(c)(2) further provides that, in exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Accordingly, if the court finds that dismissal of an enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances.

Authority:

PEN 1385

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

Third Holding:

A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 585

People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice]

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024,1029

Fifth Holding:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. In exercising its discretion, the court may give no weight whatsoever to factors extrinsic to the Three Strikes scheme.

Instead, preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. In considering these intrinsic factors the court must determine whether the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences.

Authority:

PEN 1385(a)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531

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

People v. Garcia (1999) 20 Cal.4th 490, 498–500

Sixth Holding:

Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.

A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion.

We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, the defendant’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety.

Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than the defendant’s.

(Gary note: I have left out the appellate court’s recitation of facts peculiar to this defendant and the facts in this case, but court determined that the lower court had not given proper consideration of those factors. It remanded for a proper consideration.)

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 378-379

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029

People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 [defendant’s three previous strikes were two robberies and assault with a knife]