Tag Archives: Recall of sentence or resentencing

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001064

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).

First Holding:

SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 189(e)

Third Holding:

SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.

At the prima facie inquiry stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Sixth Holding:

If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678, 681-686

Eighth Holding:

The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.

Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 683

Appellate Principles, Elements of crime, Sentencing

Case 001058

Posted on by Gary McCurdy

Error and/or relief

Among many other offenses committed during related incidents over a period of time, the defendant was convicted of two counts of being in possession of an assault weapon and two counts of being a felon in possession of a firearm. We reverse one of each of those counts.

First Holding:

Possession of a firearm by a felon is a continuing offense. The concept of a continuing offense is well established. Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.

Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. The crime achieves no finality until such time.

In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. As the evidence does not support any conclusion but continuing possession, one of the defendant’s convictions for being a felon in possession of a firearm must be reversed and one of his convictions for possession of an assault weapon must be reversed.

Authority:

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

Second Holding:

It is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate error that justifies reversal of the judgment. To demonstrate error, appellant must present meaningful legal analysis that supports the claim of error. We are not required to examine undeveloped claims or to supply arguments for the litigants.

Authority:

Jameson v. Desta (2018) 5 Cal.5th 594, 608-609

In re S.C. (2006) 138 Cal.App.4th 396, 408

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis]

Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52

Third Holding:

Cases are not authority for points not considered.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 945, fn. 7

Fourth Holding:

Reversal of the two counts means that the defendant must be resentenced. 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.

Authority:

People v. Jones (2022) 79 Cal.App.5th 37, 45-46

Fifth Holding:

One of the defendant’s arguments on a different count is forfeited because it was not raised in the trial court. The parties did not address forfeiture in their appellate briefing, but they had the opportunity to address it, a rule always implicated when an argument is raised for the first time on appeal.

Authority:

People v. Alice (2007) 41 Cal.4th 668, 679 [The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of Government Code section 68081.]

People v. Graham (2024) 102 Cal.App.5th 787, 798, fn. 6.

Sixth Holding:

A failure to object to a jury instruction does not forfeit the issue on appeal if the alleged error concerns elements of the offense, but the forfeited argument here is at least one step removed from an argument about the elements of the crime in question. And the general rule is that an argument not raised in the trial court is forfeited on appeal, including constitutional arguments.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [ruling that an argument under Apprendi v. New Jersey (2000) 530 U.S. 466 was forfeited because it was not raised in the trial court]

Sentencing, Sixth Amendment, Standard of review

Case 001054

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by relying on an aggravating factor—namely that the defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2))—that was not found true by a jury nor did the defendant stipulate to its truth.

First Holding:

A sentencing court may not impose a determinate upper term sentence unless there are circumstances in aggravation of the crime that justify its imposition, and the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial.

Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

PEN 1170(b)(1), (b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

The aggravating circumstance described in rule 4.421(b)(2) of the Rules of Court (prior convictions are numerous or of increasing seriousness), though related to the facts of prior convictions, must be submitted to a jury to determine beyond a reasonable doubt, in the absence of a stipulation or jury trial waiver.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085 [a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness, and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence]

Third Holding:

While the evidence may have been sufficient to support a finding of increasing seriousness, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion. A rational juror could have reached the opposite conclusion here based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions.

Accordingly, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness. The judgment is reversed, the sentence is vacated, and the matter is remanded for a full resentencing under current law. The prosecution may retry the factors in aggravation, if it wishes to.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Due process, Duty of the court, Sentencing, Sixth Amendment, Standard of review

Case 001048

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.

First Holding:

CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.

Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.

The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.

Authority:

U.S. Const., Sixth Amend. and Fourteenth Amend.

Calif. Const., art. I

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

Second Holding:

This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Third Holding:

The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Fourth Holding:

On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]

People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4

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

Case 001047

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially applied the wrong standard when it denied the defendant’s motion for recall of his sentence under section 1172.6. We accordingly reverse the order denying the defendant’s petition for resentencing and remand for a new evidentiary hearing.

First Holding:

To the end of ensuring a person’s sentence is commensurate with the person’s individual criminal culpability, SB 1437 (effective January 1, 2019) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

SB 1437 added section 189(e) (limiting application of the felony-murder rule) and section 188(a)(3) (to be convicted of murder, a principal in a crime shall act with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime). Under SB 775, effective January 1, 2022, these ameliorative changes to the law expressly apply to attempted murder and voluntary manslaughter.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 986

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

SB 1437 also created a procedure, under section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law.

A defendant commences that procedure by filing a petition containing a declaration that, among other things, the petitioner could not presently be convicted of murder or attempted murder because of the changes to section 188 or 189 made by SB 1437.

Authority:

PEN 1172.6(a)(3)

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 847

People v. Strong (2022) 13 Cal.5th 698, 708

Third Holding:

At the prima facie stage, the trial court takes as true the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction.

At the prima facie stage, the trial court does not engage in factfinding that involves the weighing of evidence or exercise of discretion. If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing.

Authority:

PEN 1172.6(b)(3), (c), and (d)(1)

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Duchine (2021) 60 Cal.App.5th 798, 815

People v. Harden (2022) 81 Cal.App.5th 45, 56

Fourth Holding:

A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 579

People v. McCoy (2001) 25 Cal.4th 1111, 1122 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea]

Fifth Holding:

In contrast, a defendant is liable as a direct aider and abettor of implied malice murder if the defendant, by words or conduct, aids the commission of a life-endangering act, not the act’s result. The direct aider and abettor must know that the perpetrator intended to commit the act, intend to aid the perpetrator in committing the act, know that the act is dangerous to human life, and act in conscious disregard to human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Sixth Holding:

Section 1172.6(d)(3) required the trial court to act as an independent factfinder––resolving the disputed facts and determining for itself, beyond a reasonable doubt, whether the defendant was guilty of murder under current law—not to ask whether a jury could or would convict him if the matter were retried. The trial court’s statements show it did not perform that role here.

(Gary note: The appellate court then recited comments by the trial court that reflected the trial court’s apparent belief that its role was to determine whether there was sufficient evidence to support the jury’s finding. The crux of section 1172.6(d)(3) is that the judge reviewing the section 1172.6 petition must determine whether he or she is convinced beyond a reasonable doubt that the evidence shows that the defendant IS guilty (not “could be found guilty”) of murder under the current elements.)

Authority:

PEN 1172.6(d)(3)

Seventh Holding:

The trial court’s failure to perform the factfinding section 1172.6(d)(3) requires is subject to harmless error review. Reversal is required if it is reasonably probable Lopez would have obtained a more favorable result in the absence of the error. We cannot conclude that the error was not prejudicial. The trial court’s order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded for a new evidentiary hearing under section 1172.6(d)

(Gary note: In the course of its discussion on whether the error was prejudicial, the appellate court discussed the various theories potentially arguable as a theory under which the defendant could be guilty of murder as currently defined. It concluded that it is impossible to determine from the trial court’s comments the findings of fact that would support either theory. It stressed that, for the trial court to deny the defendant’s petition for recall, the trial court was required to find facts that led it to conclude beyond a reasonable doubt that the defendant was guilty of murder under current law. And it did not do that factfinding.)

Authority:

People v. Vance (2023) 94 Cal.App.5th 706, 715–716

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

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001041

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of his motion for recall of sentence under section 1172.6. The evidence is insufficient to support he was a major participant who acted with reckless indifference to human life. The order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded to the trial court with instructions to vacate his voluntary manslaughter conviction and resentence him on the remaining charges.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who was not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

To accomplish these goals, SB 1437 redefined malice in section 188, and narrowed the classes of persons liable for felony murder under section 189. It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and be resentenced on any remaining counts. SB 775 (2021–2022 Reg. Sess.) subsequently extended this relief to persons convicted of manslaughter.

If a trial court determines that a petitioner has made a prima facie case for relief, it shall issue an order to show cause” and hold an evidentiary hearing.

At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by SB 1437. The parties may offer evidence from a prior trial or hearing or offer new or additional evidence.

If the prosecution fails to carry its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 188

PEN 189

PEN 1172.6

Second Holding:

We review the denial of a section 1172.6 petition following an evidentiary hearing for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a major participant who acted with reckless indifference to human life.

Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Clements (2022) 75 Cal.App.5th 276, 298

Third Holding:

A person who did not kill or act with the intent to kill may be liable for murder under the felony-murder doctrine only if they were a major participant in the underlying felony and acted with reckless indifference to human life. The major participant and reckless indifference standards did not originate with SB. 1437, but rather the Legislature imported those standards from section 190.2(d), which governs the felony-murder special circumstance that renders a criminal act eligible for the death penalty or life without parole.

In Banks and Clark, our high court interpreted section 190.2(d) and provided guidelines for the major participant and reckless indifference standards. When SB 1437 amended section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark.

Authority:

PEN 189(e)(3)

People v. Emanuel (2025) 17 Cal.5th 867, 881

People v. Banks (2015) 61 Cal.4th 788

People v. Clark (2016) 63 Cal.4th 522

People v. Strong (2022) 13 Cal.5th 698, 710

Fourth Holding:

Banks identified factors relevant to determining whether a defendant was a major participant in the underlying felony:

(1) the defendant’s role in planning the crime that led to the death;

(2) the defendant’s role in supplying or using deadly weapons;

(3) the defendant’s awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of other participants;

(4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent it, and whether the defendant’s own actions or inactions played a particular role in the death; and

(5) the defendant’s actions after lethal force was used.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

Fifth Holding:

Clark identified factors relevant to whether a defendant acted with reckless indifference to human life:

(1) the defendant’s knowledge of weapons, and the use and number of weapons;

(2) the defendant’s physical presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim;

(3) the duration of the interaction between the perpetrator and the victim;

(4) the defendant’s knowledge of their cohort’s propensity for violence or likelihood of killing; and

(5) the defendant’s attempts to minimize violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-622

Sixth Holding:

A defendant’s youth can also be a relevant factor in the reckless indifference analysis.

Authority:

People v. Keel (2022) 84 Cal.App.5th 546, 558–559

Seventh Holding:

No one of the Banks or Clark factors is necessary, nor is any one of them necessarily sufficient to establish a defendant was a major participant or acted recklessly indifferent to human life. Moreover, there is often a significant overlap between being a major participant and acting with reckless indifference to human life, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 615, 618

Eighth Holding:

In cases where a major participant finding was substantiated, there was evidence that the defendant played a substantial role or was a mastermind who planned and organized the underlying offense and orchestrated the events at the scene.

(Gary note: A portion of this part of opinion compares the defendant’s participation to cases in which there was a finding of substantial participation. I have listed those cases below–after the Clark reference, which pertains to the first paragraph of this “Eighth Holding”–because they do hold that the conduct as described does represent sufficient substantial evidence in support of a finding that the accused was a major participant in the underlying felony.)

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615, 612

Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were actively involved in every element of the kidnaping-robbery and were physically present during the entire sequence of criminal activity culminating in the murder and the subsequent flight]

People v. Mitchell (2022) 81 Cal.App.5th 575, 584 [defendant agreed to rob someone with his brother, helped pick out the victim, and after the victim was injured, held the firearm while his brother rifled through the victim’s pockets]

People v. Richardson (2022) 79 Cal.App.5th 1085, 1088, 1091-1092 [The defendant yelled, “Shoot him. Shoot him,” directing his armed coparticipants to shoot a citizen who was following the defendant’s car during the commission of the crime. Richardson was a major participant in the underlying robbery, as his orders to shoot showed he took on—or already had—a role in directing the robbery and the conduct of his coparticipants.]

Ninth Holding:

But even if we assume the defendant was a major participant, the evidence is insufficient to support that he exhibited reckless indifference to human life. Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death.

It encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions. Examples of reckless indifference include the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 616-617

In re Scoggins (2020) 9 Cal.5th 667, 676

Tenth Holding:

The reckless indifference standard has both a subjective and an objective component. Subjectively, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create.

Objectively, the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617

In re Scoggins (2020) 9 Cal.5th 667, 677

Eleventh Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

In re Scoggins (2020) 9 Cal.5th 667, 677 [the fact a participant or planner of an armed robbery could anticipate lethal force might be used is not sufficient to establish reckless indifference to human life]

People v. Banks (2015) 61 Cal.4th 788, 805 [participation in an armed robbery, without more, does not involve engaging in criminal activities known to carry a grave risk of death]

(Gary note:

(At this point and throughout the opinion, the appellate court compares and contrasts the defendant’s conduct in this case with other cases in which the question of major participant and reckless indifference to human life was resolved by finding either the presence or the absence of same.

(The analysis is fact-specific and would be of no value in your cases because you cannot cite an unpublished case, so you would have no way to get the facts of this summarized case before your court. But you should be able to learn what you need from the published cases this appellate court discussed in reaching its conclusion that this defendant was not a major participant in the underlying felony, and that his conviction for voluntary manslaughter (obtained by plea agreement) must be vacated.)

 

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]

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Salazar (2023) 15 Cal.5th 416, 431

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081, fn. 5

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]

Amelioration, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Vicarious liability

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) convicted of murder, attempted murder, or manslaughter; and

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

People v. Strong (2022) 13 Cal.5th 698, 708

Fourth Holding:

A denial at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. This is a purely legal conclusion, which we review de novo.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Bocanegra (2026) 122 Cal.App.5th 481

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

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

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. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]

Amelioration, Eighth Amendment, Juveniles, Probation Parole PRCS, Sentencing

Case 001031

Posted on by Gary McCurdy

Error and/or relief

A sentence of more than 72 years to life plus two life terms imposed in 1995 on a 16-year-old minor is the functional equivalent of life without the possibility of parole. The trial court erred in denying the defendant’s motion for resentencing under section 1170(d)(1).

If the court resentences, the court must then consider whether to transfer the case back to juvenile court for a transfer hearing to determine whether the matter should be retained under juvenile court jurisdiction or transferred back to adult court, applying Proposition 57.

First Holding:

Section 1170(d)(1) allows juvenile offenders to petition for recall and resentencing after 15 years of incarceration if they were sentenced to life without the possibility of parole (LWOP).

Authority:

PEN 1170(d)(1)

Second Holding:

A sentence of 72 years eight months to life, plus two life sentences is the functional equivalent of an LWOP sentence, and therefore, the defendant is eligible for resentencing under equal protection principles. As the two life sentences carry a minimum of seven years on each, the effective sentence in this matter is more than 86 years to life. Under that sentence, the defendant would not be released before he reached 102 years of age.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608

People v. Sorto (2024) 104 Cal.App.5th 435

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056

People v. Mendez (2010) 188 Cal.App.4th 47, 50, 68 [sentence of 84 years to life was the equivalent of LWOP and constituted cruel and unusual punishment]

People v. Franklin (2016) 63 Cal.4th 261, 273 [under sec. 3046, where two indeterminate sentences run consecutively, a defendant must serve the full minimum term of each before becoming eligible for parole]

Third Holding:

A petition under section 1170(d)(1) must include a statement describing the defendant’s remorse, work toward rehabilitation, and a statement that one of four qualifying circumstances is true.

The four qualifying circumstances under section 1170(d)(2), are:

(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.

(B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.

(C) The defendant committed the offense with at least one adult codefendant.

(D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

Authority:

PEN 1170(d)(2)

Fourth Holding:

Recall and resentencing entitles eligible defendants to the benefits of retroactive ameliorative changes to the law, such as Proposition 57, which eliminated the prosecution’s right to file charges for eligible crimes against a minor directly in adult court without a fitness or transfer hearing.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 449

People v. Montes (2021) 70 Cal.App.5th 35, 48-49 [ordering superior court to transfer case to juvenile court to hold hearing under Prop. 57 where court had recalled LWOP sentence under sec. 1170(d)(1) for a defendant who had committed crimes when he was 17 years old]

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304, 309 [Proposition 57 constituted an ameliorative change to the criminal law, and therefore, it applies retroactively to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.]

People v. Padilla (2022) 13 Cal.5th 152, 161-162 [once a superior court recalls a sentence, it becomes nonfinal, and Proposition 57 applies retroactively]

People v. Ramirez (2021) 71 Cal.App.5th 971, 996 [because sentence was vacated under (what is now section 1172.6), defendant’s sentence became nonfinal for purposes of Proposition 57]

Fifth Holding:

In Graham, the United States Supreme Court held that the Eighth Amendment bars the imposition of an LWOP sentence for a juvenile offender who did not commit a homicide.

In Miller, the United States Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders. In sentencing a juvenile homicide offender the trial court must have the ability to impose a sentence less than LWOP after taking into account youth-related factors and whether the offender may be rehabilitated.

Tha California Supreme Court in Caballero applied the holding in Graham to a 110 years-to-life sentence, describing the sentence as a term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.

Authority:

Graham v. Florida (2010) 560 U.S. 48, 82

Miller v. Alabama, 567 U.S. 460, 465, 477

People v. Caballero (2012) 55 Cal.4th 262, 265, 267-268

Sixth Holding:

In Contreras, the California Supreme Court considered whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender’s natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.

The Contreras court concluded that sentences of 50 years or more to life for juvenile nonhomicide offenders were the functional equivalent of LWOP sentences for purposes of the Eighth Amendment because, as contemplated by Graham:

(1) confinement with no possibility of release until age 66 or age 74 seems unlikely to allow for reintegration into society;

(2) a juvenile offender who has no chance to leave prison for 50 years has little incentive to become a responsible individual;

(3) a 50-years-to-life sentence, though less harsh than LWOP, is still an especially harsh punishment for a juvenile, who will on average serve more years and a greater percentage of his life in prison than an adult offender;

(4) Graham’s observation that juveniles have limited ability to consider consequences when making decisions applies to a sentence of 50 years to life just as it does to a sentence of LWOP; and

(5) a judgment that a juvenile offender will be incorrigible for the next 50 years is no less questionable than a judgment that the juvenile offender will be incorrigible forever.

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 356, 364

Seventh Holding:

By leaving section 1170(d)(1) in place after enacting section 3051 (which sets up a scheme of parole eligibility consideration for juvenile and young offenders), the Legislature has signaled its preference for section 1170(d)(1) to persist rather than to be stricken, thereby ensuring section 1170(d)(1) provides relief in addition to the relief provided by section 3051.

Authority:

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1063