Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

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

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000499

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.

First Holding:

Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Third Holding:

Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000498

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court must recaculate credits for time served.

First Holding:

Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32

People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]

Amelioration, Elements of crime, Sentencing

Case 000493

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support the trial court’s reckless indifference finding. Accordingly, we will reverse the trial court’s order denying the petition for resentencing and remand the matter with directions to grant the petition, vacate defendant’s murder conviction, and resentence him. Under the circumstances, we need not address whether defendant was a major participant or whether the trial court applied the correct standard.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule to provide, in relevant part: A participant in the perpetration or attempted perpetration of a felony listed in subdivision (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.

Authority:

SB 1437

PEN 189

Second Holding:

Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty of murder under California law as amended by SB 1437. The parties may rely on evidence in the record of conviction or offer new or additional evidence at the hearing. The trial court acts as an independent fact finder and determines whether the evidence establishes beyond a reasonable doubt that the defendant would be guilty of murder under the amended sections 188 and 189 and, therefore, ineligible for relief under section 1172.6.

Authority:

SB 1437

PEN 1172.6

People v. Cody (2023) 92 Cal.App.5th 87, 110

Third Holding:

Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. We must review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Montanez (2023) 91 Cal.App.5th 245, 270

Fourth Holding:

The major participation and reckless indifference requirements contained in capital case special circumstances section 190.2(d), and incorporated into the felony-murder rule by SB 1437, codify the holding of Tison and a prior decision on which it is based, Enmund, collectively place conduct on a spectrum. At one end of the spectrum is a defendant like Enmund, who planned and participated, as the getaway driver, in an armed robbery that resulted in the unplanned murder of the robbery victim and his wife.

At the other end of the spectrum are “actual killers and those who attempted or intended to kill. In between are defendants like the Tison brothers, who helped plan and carry out the escape of two convicted murderers from prison, including their father, who was serving a life sentence for killing a guard in the course of a previous escape. The Tison brothers brought a cache of weapons to prison, armed both murderers, and held at gunpoint guards and visitors alike. During their subsequent escape, they carjacked and kidnapped a family of four, took the family’s possessions, and the convicted murderers then killed all four family members. Although the Tison brothers did not kill or intend to kill, their major participation in the felony committed, combined with reckless indifference to human life, was sufficient to satisfy the Enmund culpability requirement.

Authority:

Tison v. Arizona (1987) 481 U.S. 137,

Enmund v. Florida (1982) 458 U.S. 782,

People v. Banks (2015) 61 Cal.4th 788, 794, 799, 800, 802

Fifth Holding:

Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. Although the major participation and reckless indifference elements are interrelated such that the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life, significant participation does not necessarily establish reckless indifference, which 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.

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that SB 1437 retired. 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. Emanuel (2025) 17 Cal.5th 867, 883, 884

People v. Banks (2015) 61 Cal.4th 788, 801

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

Tison v. Arizona (1987) 481 U.S. 137, 153

Sixth Holding:

In determining whether defendant acted with reckless indifference, we analyze the totality of the circumstances using the following factors derived from Clark: (1) Did defendant know that a weapon would be used during the felony? (2) Was defendant present during the murder and did he have an opportunity to restrain the perpetrator or aid the victim? (3) What was the duration of the interaction between the perpetrators of the felony and the victim? (4) What was defendant’s knowledge of his confederate’s propensity for violence or likelihood of using lethal force? (5) What efforts did defendant make to minimize the risk of violence during the felony? With the foregoing factors in mind, we conclude substantial evidence does not support the trial court’s finding that defendant acted with reckless indifference to human life.

Authority:

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

People v. Emanuel (2025) 17 Cal.5th 867, 884-88

Duty of the court, Sentencing

Case 000492

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court must recalculate the credit for time served. The matter is remanded for the court to do so here. (The matter was complicated by the trial court awarding credit against this case for by credit earned in a separate case, making it difficult to determine how much the court credited in this particular case.)

Holding:

When a trial court resentences a defendant who is currently in custody, it must credit him with all actual days he spent in custody (whether in jail or prison) up to that time, including his time in custody after the original sentencing.

Authority:

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

Sentencing

Case 000490

Posted on by Gary McCurdy

Error and/or relief

At the section 1172.75 sentence recall hearing, the court imposed a sentence longer than the original sentence, which violates section 1172.75. Remanded for a full resentencing hearing in compliance with section 1172.75.

First Holding:

Section 1172.75 makes it clear that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. Here, appellant was originally sentenced to an aggregate term of 25 years to life plus five years.

At resentencing, the trial court significantly increased appellant’s sentence when it imposed three consecutive 25-year-to-life terms, rather than concurrent terms as were previously imposed, plus three years for the great bodily injury enhancement on count 2 and a consecutive, rather than a concurrent, upper term of six years on count 3. Defendant was resentenced to an aggregate term of 75 years to life plus nine years.

Authority:

PEN 1172.75

Second Holding:

We conclude that appellant’s sentence is unauthorized since it directly violates section 1172.75(d)(1)’s proscription against imposing a longer sentence at resentencing An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case. It is well established that when the trial court pronounces a sentence which is unauthorized that sentence must be vacated and a proper sentence imposed when the mistake is brought to the attention of the reviewing court. Therefore, because defendant’s sentence is unauthorized, we vacate defendant’s sentence and remand the matter to the trial court for resentencing in compliance with section 1172.75(d).

Authority:

In re G.C. (2020) 8 Cal.5th 1119, 1130

People v. Benton (1979) 100 Cal.pp.3d 92, 102

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000481

Posted on by Gary McCurdy

Error and/or relief

Denial of the petition for recall of sentence under section 1172.6 is reversed, and the matter is remanded for the court to redetermine whether petitioner acted with reckless indifference to human life, taking into consideration his youth at the time of the offense. We also conclude substantial evidence does not support the court’s finding that petitioner aided and abetted the murder with intent to kill and the denial of the petition therefore cannot be upheld on this alternative ground.

First Holding:

Although petitioner briefly argued in the superior court that his youth should be considered in the court’s analysis of whether he was a major participant in the underlying felony and acted with reckless indifference to human life, the superior court did not address this argument. Indeed, the superior court may have felt compelled to conclude, based on the state of the law at the time, that petitioner’s youth was not a relevant factor, given that petitioner was a young adult at the time he committed the offense and not a juvenile.

We continue to find there was substantial evidence for the trial court to conclude that the defendant acted with indifference of human life, but pending this appeal, there have been cases that squarely hold that the court should consider youth of a nonjuvenile in that determination.

If we do not address this issue, petitioner may be able to file a second petition for resentencing in the superior court to have the court consider his youth as part of the totality of circumstances bearing on whether he acted with reckless indifference to human life. In the interests of justice and for the sake of judicial economy, we address this argument on the merits. We conclude that petitioner is entitled to a new evidentiary hearing to apply new law relating to the effect, if any, of his youth on the court’s reckless indifference finding.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1008

Second Holding:

We review the court’s findings 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 petitioner acted with reckless indifference.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

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

Third Holding:

In the first stage of this appeal–before review was granted and the matter was transferred back to this court–petitioner raised the argument (that the court should take into consideration the defendant’s youth) in his reply brief for the first time. Ordinarily, we do not consider issues raised for the first time in a reply brief. As such, this argument was not addressed in our prior opinion.

Authority:

In re Luke H. (2013) 221 Cal.App.4th 1082, 1090

Fourth Holding:

During the pendency of this appeal, the appellate court in Jones addressed the relevance of youth to the reckless indifference finding in a case involving a young adult who was 20 years old at the time of the offense.

Authority:

People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

Fifth Holding:

In Oliver, the appellate court assumed, without deciding, that the trial court was required to consider the petitioner’s youth (23 years of age) in reference to the petitioner’s mental state, but held that its failure to do so was harmless under the standard of Watson

Authority:

People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 and fn. 8

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

Sixth Holding:

In Pittman, the court applied the Watson standard and concluded there was a reasonable possibility the failure to consider the petitioner’s youth impacted the trial court’s decision. The court noted inferences of immaturity could be drawn from the fact that the petitioner was 21 years old when he participated in the attack with two peers who were 16 and 17 years old. Additionally, the crime suggested the participants acted impulsively, under the influence of rashness, and while intoxicated. Thus, the court determined the interests of justice were best served by remanding for the court to consider whether youth impacted the petitioner’s ability to form the requisite mental state for second degree murder.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417-418

Seventh Holding:

In Jiminez, the appellate court agreed that there had been a significant change in the law governing young adult offenders since the ruling on the first petition, and therefore the doctrines of collateral estoppel and law of the case did not apply. In this regard, the court noted that early cases addressing this issue of a petitioner’s youth applied only to juvenile offenders under the age of 18, and only to the major participant and reckless indifference findings.

Thereafter, however, the law was expanded to hold that youth was a consideration for other mental state requirements, including implied malice, and additionally expanded to include young adults who were in their late teens and early 20’s when they committed the crimes. Additionally, the Legislature had enacted similar changes to a variety of statutes to expand youth-related considerations to persons 25 years of age and younger. The court also determined that the error in failing to consider the petitioner’s age was not harmless under the Watson standard.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004

Amelioration, Sentencing

Case 000477

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court failed to conduct a full resentencing because it limited resentencing to only one of the several cases consolidated into an aggregate sentence. The defendant had been sentenced in the 1990s in two separate sentencing hearings involving multiple cases. Only one of the cases was enhanced by a now invalid prior prison term enhancement. That case made him eligible for resentencing under section 1172.75. The trial court conducted a resentencing hearing under section 1172.75 on only that single case, and declined to resentence on the others. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the late 1995 aggregate sentence.

First Holding:

Section 1172.75(a) provides thatany sentence enhancement that was imposed prior to January 1, 2020, 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Once the California Department of Corrections and Rehabilitation (CDCR) identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant. Here, defendant’s sentence was subject to recall and resentencing because the CDCR identified his now invalid prison prior.

Authority:

PEN 1172.75(b), (c)

Second Holding:

On recall of his sentence, defendant was entitled to a full resentencing that included all aspects of his aggregate sentence. By its plain terms, section 1172.75 requires a full resentencing not merely that the trial court strike the newly invalid enhancements. Section 1172.75(d)(2) specifies that the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

When a sentence is subject to recall, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. Where there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices. This includes an aggregate prison term, which 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.

Authority:

PEN 1172.75

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

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

People v. Walker (2021) 67 Cal.App.5th 198, 206

People v. Coddington (2023) 96 Cal.App.5th 562, 568

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

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Third Holding:

Defendant’s sentence is an aggregate prison term comprised of five separate cases. Even though defendant only referenced the one of the 1995 sentences instead of both of the 1995 sentences, the trial court mistakenly believed it was limited to resentencing defendant on the narrow portion of his sentence that included the prison prior. Defendant’s sentence contains interdependent component parts from multiple cases. Therefore, the court erred by treating the portion of the sentence with the invalid prison prior as an independent, separate term, rather than an integral part of the whole and reconsidering every aspect of the sentencing scheme as required. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the later 1995 aggregate sentence.

Authority:

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

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware 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.

In applying the clearly indicates test, 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. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 776

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

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

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

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

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

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

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

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Third Holding:

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

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant 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. The changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

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

People v. Arellano (2024) 16 Cal.5th 457, 468

People v. Mares (2024) 99 Cal.App.5th 1158, 1166

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. 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.

Authority:

PEN 1172.6(c)

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

People v. Patton (2025) 17 Cal.5th 549, 558–559

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, the court takes the 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.

Authority:

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

Fourth Holding:

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. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

People v. Patton (2025) 17 Cal.5th 549, 559

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]