Tag Archives: Recall of sentence or resentencing

Abstracts and Minutes, Sentencing, Statutory interpretation

Case 001014

Posted on by Gary McCurdy

Error and/or relief

Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.

First Holding:

Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.

The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.

The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.

Authority:

PEN 2900.1

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33

Second Holding:

Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”

Authority:

PEN 2933.1

Third Holding:

The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.

Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.

If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

People v. Murphy (2001) 25 Cal.4th 136, 142

In re M.M. (2012) 54 Cal.4th 530, 536

In re DeLong (2001) 93 Cal.App.4th 562, 568

People v. Manzo (2012) 53 Cal.4th 880, 889

Fourth Holding:

Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”

We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.

Authority:

People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033

People v. Smith (2024) 100 Cal.App.5th 741, 760

In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

Fifth Holding:

Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.

Authority:

People v. Burke (1956) 47 Cal.2d 45

Sixth Holding:

The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Seventh Holding:

The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.

Authority:

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

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

Case 001011

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Authority:

PEN 667.5(b)

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

Second Holding:

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

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

Authority:

PEN 1172.75(b) and (c)

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

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

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

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

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

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

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

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

Authority:

PEN 1172.1

Second Holding:

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

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

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

Authority:

PEN 1385

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

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

Authority:

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

Fifth Holding:

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

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

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

Authority:

PEN 1385(a)

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

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

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

Sixth Holding:

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

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

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

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

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

Authority:

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

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

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

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

Amelioration, Elements of crime, Retroactivity, Sentencing, Standard of review

Case 001006

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a new hearing on the defendant’s resentencing under section 1172.75, in light of new case law regarding examination of prior serious felonies and strikes depending on criminal gang activity. Further, the restitution fine must vacated, as it is more than 10 years old.

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. The list of serious felonies includes any felony offense that would also constitute a felony violation of section 186.22. Section 186.22 defines substantive gang offenses and gang enhancements.

Authority:

PEN 667(e)

PEN 1170.12(c)

PEN 1192.7(c)(28)

PEN 667.5(c)

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

Second Holding:

The Legislature enacted AB 333 (2021-2022 Reg. Sess.), which among other things, changed the elements of gang offenses and enhancements by 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. Fletcher held that prior convictions premised on section 186.22 must be examined under currently law in determining whether they qualify as prior serious felony convictions or strikes.

Authority:

AB 333

PEN 186.22

People v. Fletcher (2025) 18 Cal.5th 576, 585, 587

Third Holding:

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. The Salazar court accordingly held that when a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Though the Salazar decision is premised on the trial court’s scope of discretion being changed during pendency of appeal, whereas here the trial court’s discretion has remained the same but a material fact about defendant’s past record has been modified since the time of sentencing. We nevertheless find the test set forth in Salazar to be applicable here, because the Salazar court itself observed the similarity between the two scenarios: 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

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424-425

Fourth Holding:

Retrial of the strike under the current law would be appropriate, should the prosecutor so choose.

Authority:

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

Fifth Holding:

The restitution fine was imposed in 2011. Section 1465.9(d) has been added since then, to provide that any restitution fine is unenforceable and uncollectible upon the expiration of 10 years after date of imposition.

Authority:

PEN 1465.9

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001004

Posted on by Gary McCurdy

Error and/or relief

On appeal following remand from the defendant’s first appeal, the trial court failed to impose sentence on several counts whose punishment it stayed under section 654. It failed to impose a fine on a fifth count, and it improperly reimposed several other fines.

First Holding:

The court’s failure to pronounce sentence on some of the counts constitutes an unauthorized sentence. When a trial court determines that section 654 applies, the court must impose sentence on every count but stay execution as necessary to implement section 654. This procedure also applies when one of the sentences pertains to a misdemeanor conviction.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

People v. Mani (2022) 74 Cal.App.5th 343, 380

Second Holding:

The defendant’s conviction under Vehicle Code section 23152(a) (driving under the influence) requires a fine, but the court failed to impose a fine.

Authority:

VEH 23536(a)

VEH 23600

People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as one that cannot lawfully be imposed under any circumstances in a particular case]

Third Holding:

Having concluded that the trial court’s failure to impose sentences and to impose a fine resulted in an unauthorized sentence, we also conclude that remand is required to correct the errors. In other cases, we have exercised our authority under section 1260 to modify judgments in sentencing matters where remand would be futile or unnecessary because the record clearly indicated how the trial court would exercise its sentencing discretion.

Here, however, the trial court did not impose sentences on counts two, four, seven, and nine or the firearm enhancement associated with count two, or impose a fine on count six, either at the original sentencing or at the section 1172.75 resentencing. Given the range of sentencing options for the omitted counts and enhancement and the permissible range of the fine on count six, the record does not clearly indicate what sentences or fine the court would have imposed. Accordingly, remand is required.

Authority:

People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

We disagree with the People that on remand, the defendant is entitled to a full resentencing. Section 1260 grants appellate courts the authority to order limited remands for further proceedings that may be appropriate under the circumstances. In resentencing the defendant in 2025, the trial court considered the relevant factors in formulating a sentence it deemed appropriate based on his culpability, criminal history, and his risk of future dangerousness.

The two limited tasks on remand (imposing and staying sentences on the omitted counts that the court had already indicated it intended to stay and imposing a fine on count six) will not alter the overall sentencing scheme the trial court deemed appropriate such that resentencing on all nine counts would be required.

For these reasons, we order a limited remand.

Authority:

PEN 1260

People v. Wilson (2024) 16 Cal.5th 874, 948-949

People v. Stevens (1988) 205 Cal.App.3d 1452, 1456 [Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format]

Fifth Holding:

The court erred in reimposing and staying several fees, despite making an implied finding that the defendant did not have an ability to pay. Equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Neither of the applicable statutes nor Kopp allows a trial court to impose then stay the court operations fee or the court facilities fee after it finds a defendant indigent. Once it found the defendant lacked the ability to pay, the court’s option was to not impose the fees.

Authority:

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

Sixth Holding:

The statutes authorizing certain other fees that were previously imposed have since been repealed and are now unenforceable and uncollectible. Any portion of a judgment imposing those fees must be vacated.

Authority:

GOV 6111(a)

Amelioration, Sentencing

Case 001002

Posted on by Gary McCurdy

Error and/or relief

The court failed to recalculate the defendant’s credit for time served on resentencing under section 1172.75.

Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 20, 29, 37, 41

Abstracts and Minutes, Fines and fees, Sentencing

Case 000995

Posted on by Gary McCurdy

Error and/or relief

This appeal is from the resentencing under section 1172.75. The restitution fine must be stricken, as now it was imposed more than 10 years ago. There are errors in the abstract of judgment that must be corrected.

First Holding:

The trial court originally imposed the restitution fine in August 2015. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated. While the court reimposed the $4,000 restitution fine less than 10 years after the original sentencing, 10 years have passed since the court originally imposed the $4,000 restitution fine, and thus the balance is now unenforceable and uncollectible. We will therefore strike the restitution fine.

Authority:

PEN 1465.9(d)

People v. Kopp (2025) 19 Cal.5th 1, 17

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on a different issue Mar. 11, 2026, S295038

Second Holding:

The abstract lists the prior prison term enhancement as stayed, when in fact that enhancement was stricken by the trial court. In addition, the four-month sentence on count three is listed as concurrent when it should be listed as consecutive. We will therefore order amendment of the abstract to correct these errors

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral pronouncement of judgment ordinarily controls]

Duty of the court, Sentencing

Case 000988

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. The abstract must be corrected.

Holding:

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. When resentencing results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the new sentence. We will therefore direct the trial court to amend the abstract of judgment to reflect the defendant’s current custody and conduct credit.

Authority:

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

Gary Note:

(Gary note: It is not clear from the wording of the opinion whether absence of credit was because the trial court did not update the credits on resentence, or the clerk simply did not update the abstract of judgment to reflect the court ordered. Though the appellate court cited Buckhalter on the duty to recalculate, it cited no authority for correcting an erroneous abstract of judgment. For your convenience, I have listed below several cases the court could have drawn from as authority for an appellate court to order correction of an abstract of judgment.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Elements of crime, Sentencing

Case 000986

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the defendant’s petition for recall under section 1172.6 at the prima facie stage, and remand for further proceedings because the record of conviction does not conclusively establish as a matter of law that defendant is ineligible for relief as required at the prima facie stage of section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 (2017-2018 Reg. Sess.) was enacted 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 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.

SB 1437 amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime. This language eliminated the use of the natural and probable consequences doctrine in second degree murder prosecutions.

SB 775 (2021-2022 Reg. Sess.) expanded the scope of those changes to encompass, among other things, murder convictions under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

PEN 1172.6

People v. Harden (2022) 81 Cal.App.5th 45, 51

People v. Gentile (2020) 10 Cal.5th 830, 846

People v. Langi (2022) 73 Cal.App.5th 972, 978

Second Holding:

Section 1172.6 creates a petition process for an eligible defendant to seek to be resentenced. Section 1172.6(b) and (c) create the process for evaluating the petition. First, the trial court must determine whether the petition is facially sufficient under section 1172.6(b). If the petition is facially sufficient, the court must appoint counsel (if requested) and follow the briefing schedule set forth in the statute. Following the completion of this briefing, the trial court must hold a hearing to determine whether the petition has made a prima facie showing that the petitioner is entitled to relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960-962, 966

Third Holding:

While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1172.6 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, 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. 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.

Stated another way, a petition for resentencing may be denied at the prima facie stage where the record of conviction, including items such as the jury instructions and associated findings, establishes a defendant’s ineligibility for relief as a matter of law.

Authority:

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

People v. Curiel (2023) 15 Cal.5th 433, 459-461

Fourth Holding:

Defendant’s jury in 2013 was given the murder instruction under CALCRIM No. 520 and aider and abettor instructions under CALCRIM Nos. 400 and 401. The jury ultimately found defendant guilty of second degree murder.

Under these instructions, the perpetrator’s purpose need not have been to kill the victim; the aider and abettor’s knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had murderous intent, certainly the aider and abettor need not have had such an intent.

Although the definition of second degree murder in CALCRIM No. 520 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALCRIM No. 401 does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, the defendant need only have intended to encourage the perpetrator’s intentional act—in this case, assaulting the victim—whether or not the defendant intended to aid or encourage the victim’s killing, and whether or not he personally knew of and disregarded the risk of such a killing.

This possible application of defendant’s instructions establishes a prima facie case for a section 1172.6 petition.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 984

Fifth Holding:

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. The prima facie bar was intentionally and correctly set very low.

Authority:

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

Sixth Holding:

The record of conviction therefore does not establish defendant is ineligible for relief under section 1172.6 as a matter of law. In order to conclude defendant is ineligible for relief as a matter of law, we would have to weigh the evidence and find defendant to have been the actual killer, which would be impermissible at this stage. The trial court consequently erred by denying defendant’s section 1172.6 petition at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 20

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1269

Amelioration, Discretion, Elements of crime, Sentencing, Standard of review

Case 000984

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in imposing the firearm enhancement on count 2.

First Holding:

In affirming the trial court’s decision to deny the defendant’s request for dismissal of the firearm enhancement attached to count 1, we review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion, including a court’s determination of dangerousness. Section 1172.75(d) vests the superior court with broad discretion based on an inherently factual inquiry.

Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

A court also abuses its discretion if the decision is made without the sentencing court’s informed discretion or if the court is unaware of the scope of its discretionary powers.

The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion. We assume the trial court was aware of and followed applicable law.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

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

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 376

People v. Coleman (2024) 98 Cal.App.5th 709, 725

People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing decision implies requisite subsidiary findings]

Second Holding:

On count 2, the defendant had been convicted of section 246 (shooting at an occupied vehicle), enhanced under section 12022.53(d) for an additional 25 years to life. (In the prior appeal from the conviction, the appellate court struck the enhancements on count 2 under sections 12022.53(b) and (c), because section 246 is not one of the crimes listed in 12022.53(a) that subdivisions (b) and (c) can apply to.) At the 1172.75 resentencing hearing, the court imposed the lesser enhancement on count 2, under section 12022.53(c), for an enhancement of a determinate term of 20 years instead of the indeterminate 25 years to life he was serving under section 12022.53(d).

Because section 246 is not a crime listed under section 12022.53(a) to which subdivisions (b) and (c) can be applied, it was error to reduce the section 12022.53(d) enhancement to 12022.53(c).

While the trial court could dismiss the section 12022.53(d), firearm enhancement as to count 2, it could not impose a lesser enhancement under section 12022.53(c). We vacate the sentence as to count 2 and remand for resentencing as to that count only.

(Gary note: The court did not mention it as an option, but the trial court can dismiss the section 12022.53 (as the appellate court stated) and impose an enhancement on a lesser included enhancement, such as section 12022.5.

(Under People v. McDavid (2024) 15 Cal.5th 1015, the Supreme Court extended its holding of Tirado (which held that a court could exercise its discretion to impose a lesser section 12022.53 enhancement to the one that was found true) to expressly permit striking section 12022.53 and imposing a lesser included, uncharged enhancement authorized elsewhere in the Penal Code, outside section 12022.53. Under McDavid, the court in this case could strike the 12022.53(d) enhancement and impose an enhancement under section 12022.5, for example. In other words, the court is not faced with a choice of it’s either all or nothing.)

Authority:

PEN 12022.53(a)

People v. Tirado (2022) 12 Cal.5th 688, 699, fn. 12

(People v. McDavid (2024) 15 Cal.5th 1015)

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing

Case 000978

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose the normal base term for several of his offenses in addition to the life terms under the Three Strikes law for those same offenses. The court failed to update the credit for time served. And the abstract of judgment misidentifies a second degree robbery as in the first degree, and must be corrected.

First Holding:

Where, as here, a defendant’s current sentence includes prison prior term enhancements rendered invalid under section 1172.75(a), the court shall recall the sentence and resentence the defendant. By its plain terms, section 1172.75 requires a full resentencing, not merely the striking of newly invalid enhancements.

Authority:

PEN 1172.75

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

Second Holding:

The Three Strikes law is a penalty provision, not an enhancement. It is not an enhancement because it does not add an additional term of imprisonment to the base term. Instead, it provides for an alternate sentence (25 years to life) when it is proven that the defendant has suffered the requisite number of convictions, prior and present. (At least two prior serious felony convictions, and the current offense being a qualifying offense for invocation of Third Strike sentencing.)

Authority:

People v. Williams (2014) 227 Cal.App.4th 733, 744

Third Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a trial court pronounces an unauthorized sentence, the sentence may be set aside and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.

Authority:

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–432

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21

Fifth Holding:

The trial court erred in failing to update his presentence credits at the time of resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

The amended abstract of judgment incorrectly lists the defendant’s conviction in count 3 as one for first degree robbery, when in fact the conviction should be identified as one for second degree robbery. The abstract of judgment must be corrected.

(Gary note: Though the court discussed the need for amending the abstract of judgment for various reasons through the opinion, it did not cite authority for its order that it be corrected. There is plenty of authority available, of course. I have set out some cases the court could have drawn from, but there are undoubtedly many others.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2