Tag Archives: Prior convictions

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000537

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to give the prosecution an opportunity to prove that the 2011 prior strike conviction alleged in the information remains a strike under the current version of section 186.22, criminal gang activity.

First Holding:

The defendant was convicted in 2011 of carrying a loaded firearm with an enhancement that the crime was committed for the benefit of a gang. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1). Thus, the prior conviction was alleged as a strike, resulting in a doubled sentence.

Authority:

PEN 186.22

PEN 667(d)(1)

PEN 1192.7(c)(28)

People v. Briceno (2004) 34 Cal.4th 451, 456

Second Holding:

AB 333 (2021–2022 Reg. Sess.), effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a five-year sentence enhancement. Current law applies in determining whether they qualify as prior serious felony convictions. The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

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: 000420

Posted on by Gary McCurdy

Error and/or relief

When a defendant is elgible for resentencing under section 1172.75, the court must sentence under current law, including ameliorative provisions enacted since the original sentence, including the Three Strikes Reform Act of 2012.

First Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Second Holding:

Given Penal Code section 1170.126(k) [“Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant”], the voters for the Three Strikes Reform Act of 2012 did not intend for the Reform Act petition process to be the sole avenue for defendants sentenced to an indeterminate term of imprisonment under the original Three Strikes law to seek resentencing relief. Rather, third strike defendants can also seek relief through the separate vehicle of section 1172.75 resentencing. Those defendants are nonetheless subject to the substantive requirements of section 1170.126, including its discretionary public safety override, but need not comply with the ancillary procedural requirements of that statute. They must instead fulfill the separate procedural requirements of the section 1172.75 resentencing mechanism.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 858, 861-862, 865, 869-870

Amelioration, Retroactivity, Sentencing

Case: 000408

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court should have considered the impact of AB 333 on the prior serious felony and strike convictions. We agree with the parties that AB 333 applies retroactively to the substantive gang offense conviction and all the gang-related allegations. We therefore vacate the resentencing order, reverse the substantive gang offense conviction, and vacate the findings on the gang enhancement, prior serious felony, and strike prior. On remand, the prosecution may retry all the gang-related allegations under the new law.

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 the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, SB 483 (2021−2022 Reg. Sess.) added what was later renumbered as section 1172.75 to make this change retroactive. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid’ enhancements. Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled.

Authority:

PEN 667.5

PEN 1172.75

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

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

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

In 1988, the Legislature enacted section 186.20 et seq. to eradicate criminal activity by street gangs. Among other things, the Act created the substantive offense of active participation in a criminal street gang and a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with a criminal street gang.

Effective January 1, 2022, AB 333 made several changes to the criminal street gang laws. 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 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.

Also, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26.

Authority:

AB 333

PEN 186.22

People v. Valencia (2021) 11 Cal.5th 818, 828-829

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

People v. Clark (2024) 15 Cal.5th 743, 753

Third Holding:

The recall of the defendant’s sentence under section 1172.75 rendered his judgment no longer final, and the defendant was entitled to the presumption of retroactivity of ameliorative legislation under Estrada. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.

Authority:

People v. Lopez (2025) 17 Cal.5th 388

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Nasalga (1996) 12 Cal.4th 784, 792

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

People v. Mitchell (2023) 97 Cal.App.5th 1127, 1137–1142 [AB 333 applied retroactively to the defendant’s substantive gang offense conviction and enhancement]

Fourth Holding:

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It was presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Here, the defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Reversal is required unless the error is harmless pursuant to Chapman.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s sentence effectively vacates his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

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

Fifth Holding:

As the judgment is no longer final, it is also necessary for the trial court to reassess whether the prior serious felony and strike conviction were based on gang activity, and whether the conduct then would have been considered unlawful gang activity under AB 333. On remand, the prosecution may elect to retry whether the prior conviction qualifies as a serious felony applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607-608

People v. Farias (2023) 92 Cal.App.5th 619, 650–653

Amelioration, Sentencing

Case: 000401

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

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(d)(2)

Second Holding:

Once the trial court received that identification information from the California Department of Corrections and Rehabilitation (CDCR), it had authority over the matter and was statutorily authorized to act. That is, under section 1172.75, subdivision (b), once the CDCR provided this identification to the trial court, it triggered the trial court’s review and resentencing obligations under section 1172.75(b) thereby placing the matter within a statutorily authorized exception to the general rule that a trial court has no jurisdiction to modify a final judgment. And though section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition, the filing of such a procedurally unauthorized motion did not deprive the trial court of the jurisdiction afforded to it by statute to resentence a defendant as mandated by section 1172.75.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332–333

Third Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Fourth Holding:

Should the court determine to provide relief under the Three Strikes Reform Act, it may also exercise its discretion with regard to which sentence to stay under section 654, now that the statute does not bind the court to impose the sentence on the count that carries the longer potential sentence.

Authority:

PEN 654

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