Tag Archives: Prior convictions

Amelioration, Duty of the court, Sentencing, Standard of review

Case 000779

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or violent felony for purposes of the strike prior and prior serious felony enhancements and remand the matter to the trial court for any retrial of this finding.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: If a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7(c) defines “serious felony” to include, among other things, “any felony offense, which would also constitute a felony violation of section 186.22.”

Authority:

PEN 1192.7(c)(28)

Second Holding:

Assembly Bill 333 amended section 186.22. Effective January 1, 2022, this legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1065, 1067

Fourth Holding:

In Fletcher, our Supreme Court held that 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.

Accordingly, 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. The matter must be remanded to the trial court for any retrial of these allegations, and if required, any resentencing.

Authority:

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

Amelioration, Discretion, Sentencing

Case 000756

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court erred in believing that it had no discretion to consider defendant’s motion pursuant to dismiss prior serious felony enhancements under Romero. The matter is reversed and remanded to the trial court with directions to hold a full resentencing hearing at which the court must consider defendant’s Romero motion.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b) to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code.

In 2021, SB 483 made this change retroactive. It enacted what is now Penal Code section 1172.75, which states 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 as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Authority:

PEN 1172.75

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

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. To facilitate the process, the statute directs California’s Department of Corrections and Rehabilitation (CDCR) to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Upon receiving that information, the sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant. The statute provides separate deadlines for identification, review, and resentencing of individuals currently serving a sentence based on the enhancement and all other individuals.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. As relevant here, subdivision (d) specifies: that resentencing pursuant to this section 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.

Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The trial court must apply the sentencing rules of the Judicial Council as well as 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.

In addition, 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.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed. The trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of defendant’s strike priors after recalling his sentence and for the purpose of resentencing him under section 1172.75.

Authority:

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

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

People v. Monroe (2022) 85 Cal.App.5th 393, 400

People v. Dowdy (2024) 107 Cal.App.5th 1, 9-13

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

Appellate Principles, Sentencing

Case 000743

Posted on by Gary McCurdy

Error and/or relief

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent’ felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. If a defendant’s current offense is a serious felony, the defendant is also subject to a five-year prior serious felony enhancement—a so-called ‘nickel prior’—in addition to any strike

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582

People v. Thomas (1999) 21 Cal.4th 1122, 1129,

People v. Arnett (2006) 139 Cal.App.4th 1609, 1613

Second Holding:

Penal Code section 667(a) provides that a person convicted of a serious felony who previously has been convicted of a serious felony shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. A serious felony means a serious felony listed in section 1192.7(c), which identifies 42 offenses as serious felonies, including any felony punishable by death or imprisonment in the state prison for life.

Authority:

PEN 667(a)

PEN 1192.7(c)

Third Holding:

For an offense falling within the enumerated list without any change in elements since the conviction, the question whether that conviction qualifies as a serious felony is entirely legal. But if there is a factual question of whether conduct underlying the crime qualifies the offense as a serious felony, any such facts must be tried to the same factfinder that decided the defendant’s guilt of the charged crime.

Authority:

PEN 969f(a)

People v. Kelii (1999) 21 Cal.4th 452, 456

Fourth Holding:

None of the defendants prior convictions are for offenses listed in section 1192.7(c). And though he received a life sentence because he was a third-strike offender, section 1192.7(c)(7) category requires that the offense be itself punishable by life imprisonment, without regard to application of the Three Strikes law based on defendant’s status as a recidivist.

Authority:

People v. Thomas (1999) 21 Cal.4th 1122, 1130

People v. Hernandez (2017) 10 Cal.App.5th 192, 198 [construing the ineligibility factors of the Three Strikes Reform Act of 2012–Proposition 36–depends on the nature of the offense itself, not the effect of other prior convictions on the defendant’s sentence]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1159 [construing the ineligibility factors for consideration under section 1170.91 regarding the mitigating effect of trauma incurred in the course of military service, which may even include recall of the sentence and resentencing]

Fifth Holding:

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken. We have authority to correct a sentence that is not authorized by law. But when an error affects part of a sentence, the case must be remanded for a full resentencing hearing as to all counts to permit a trial court to exercise its sentencing discretion in light of the changed circumstances. We thus remand for resentencing.

Authority:

People v. Choyce (2025) 18 Cal.5th 86, 128

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)

People v. Shaw (2020) 56 Cal.App.5th 582, 588-589

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

Amelioration, Sentencing

Case 000729

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court was required to resentence the defendant under the Three Strikes Reform Act of 2012 to determine whether he should be sentenced as a second strike defendant under the Act, subject to a finding that such resentencing would present an unreasonable risk of danger to the public in the context of the Act.

First Holding:

The Three Strikes Reform Act of 2012 limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion” with a goal of eliminating disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1170.126

PEN 1172.75

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

Second Holding:

In Guevara, the Supreme Court held that because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

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

Third Holding:

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.

On remand, the trial court should conduct an analysis of whether defendant, at the time of the hearing, continues to pose a danger to public safety.

Authority:

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of the Three Strikes law.

The Supreme Court concluded that 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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