Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case: 000420

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

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

Amelioration, Sentencing

Case: 000416

Posted on by Gary McCurdy

Error and/or relief

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6. We affirm the denial but remand to give the defendant the opportunity file an amended petition.

First Holding:

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6.

Authority:

PEN 1172.6

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

Second Holding:

Hearsay testimony by a police officer at a preliminary hearing could support a trial court’s finding that the petitioner did not make a prima facie case under section 1172.6.

Authority:

People v. Rodriguez (2026) 117 Cal.App.5th 1179

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Fourth Holding:

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides that 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. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205

Amelioration, Retroactivity, Sentencing

Case: 000408

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 667.5

PEN 1172.75

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

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

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

Second Holding:

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

Effective January 1, 2022, AB 333 made several changes to the criminal street gang laws. First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

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

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

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

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

Authority:

AB 333

PEN 186.22

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

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

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

Third Holding:

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

Authority:

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

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

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

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

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

Fourth Holding:

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

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

Authority:

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

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

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

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

Fifth Holding:

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

Authority:

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

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

Equal protection, Juveniles, Sentencing, Standard of review

Case: 000404

Posted on by Gary McCurdy

Error and/or relief

For criminal conduct committed when he was 17, the imposition of a sentence of a determinate term of nine years plus and indeterminate term of more than 150 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP), and as a matter of equal protection, the defendant must be considered eligible to petition for recall and resentencing under section 1170(d)(1).

First Holding:

Statutory interpretation and the application of undisputed facts to a statute are questions of law we review de novo.

Authority:

People v. Salcido (2008) 166 Cal.App.4th 1303, 1311

Second Holding:

A juvenile defendant who was sentenced to imprisonment for life without the possibility of parole is eligible to seek resentencing under section 1170(d). Although the defendant’s sentence does not fall within the statute’s plain language, the constitutional right of equal protection extends section 1170(d) eligibility to juvenile offenders who were sentenced to the functional equivalent of LWOP.

Authority:

PEN 1170(d)(1)(A)

People v. Heard (2022) 83 Cal.App.5th 608, 633–634

Third Holding:

The defendant’s sentence exceeds the sentence in Heard, and the People concede it unquestionably exceeds the juvenile offender’s natural lifespan.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440, 450–451 [10 years plus 130 years to life constituted functional equivalent of LWOP]

People v. Caballero (2012) 55 Cal.4th 262, 265, 267–268 [40 years plus 70 years to life]

Fourth Holding:

The defendant’s youth offender parole eligibility under section 3051 does not affect his eligibility to seek section 1170(d) resentencing because section 3051 relief became available only after his sentence was imposed. As relevant here, under section 3051, a youth offender sentenced to a life term of 25 years to life or more is eligible for parole after 25 years of incarceration. (PC 3051(b)(3).) Because section 1170(d)(1) refers to what the defendant was sentenced to, what matters is the defendant’s original sentence. We acknowledge that other courts have parted ways with Heard, but we do not.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608, 629

Sentencing

Case: 000403

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.

First 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. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]

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]

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

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

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

Second Holding:

When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, 764

People v. Price (1986) 184 Cal.App.3d 1405, 1413

People v. Karaman (1992) 4 Cal.4th 335, 348–350

Third Holding:

Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.

We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

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

People v. Trammel (2023) 97 Cal.App.5th 415, 435

Juveniles, Sentencing, Sixth Amendment

Case: 000402

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 1170 and the defendant’s right to a jury trial by relying on aggravating factors that were not proven to a jury beyond a reasonable doubt or stipulated to under to section 1170(b). And the court must conduct a Franklin hearing.

First Holding:

On January 1, 2022, SB 567 went into effect, amending section 1170. Section 1170 now authorizes a trial court to impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. However, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(3)

Second Holding:

While not directly addressing section 1170, the United States Supreme Court held that, 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. An exception to this allows a trial court 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, 834, 838

Third Holding:

In accordance with Erlinger, Wiley held that 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. The court also addressed two specific aggravating factors specified in the Rules of Court–the increasing seriousness of a defendant’s prior convictions and a defendant’s unsatisfactory performance on probation or parole, and held that each must be found true by a jury before it can be used to justify an upper term sentence.

Authority:

Rules of Court rules 4.421(b)(2) and (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1082-108

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Fifth Holding:

In selecting the upper term on count 5, the trial court relied on the defendant’s extensive serious record. While the court did not refer to any specific aggravating factor, it appears the court relied on, at the very least, the increasing seriousness of his prior convictions or sustained juvenile petitions. However, a jury determination is required before a court can rely on this aggravating factor to justify an upper term sentence. Here, there was no jury trial, stipulation, or jury trial waiver on this factor in aggravation. Accordingly, the court’s reliance on this factor to impose an upper term sentence was error.

Authority:

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

Sixth Holding:

The determination of whether these prior convictions are of increasing seriousness is a comparative and qualitative one, which makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. A rational juror may not have been persuaded beyond a reasonable doubt. As we cannot conclude beyond a reasonable doubt that a jury would have found this aggravating factor true, the error was not harmless. As the trial court erred and the error was not harmless, we will vacate the sentence and remand the case for a full resentencing.

Authority:

People v. Wiley [(2025)] 17 Cal.5th 1069, 1087, 1090

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

Seventh Holding:

The trial court also misunderstand its responsibility to conduct a Franklin hearing itself, believing that it was a parole matter to be handled by the Parole Board. A Franklin proceeding gives an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Parole] Board, years later, may properly discharge its obligation to give great weight to youth-related factors in determining whether the offender is fit to rejoin society. On remand, the court must conduct a Franklin hearing.

Authority:

In re Cook (2019) 7 Cal.5th 439, 449

People v. Franklin (2016) 63 Cal.4th 261

Amelioration, Sentencing

Case: 000401

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1172.75(d)(2)

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

Authority:

PEN 654

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

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000399

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any 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 is not a serious or violent felony. But under the Reform Act, a defendant does not qualify for this ameliorative change if his current offense is one of several specified violations. Even if not convicted of a disqualifying offense, the ameliorative provisions of the Reform Act also do not apply in cases in which the court finds that release of the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 653

Second Holding:

Where a person serving a life term under the original Three Strikes law is before the court for resentencing under section 1172.75 (under which now-invalid prior prison term enhancements must be vacated and the defendant must be fully resentenced to something no greater than the sentence just vacated), the person must be resentenced under the Three Strikes Reform Act of 2012, unless the court finds that release of the defendant would pose an unreasonable risk of danger to public safety as that term was contemplated in the Reform Act.

Authority:

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

Third Holding:

The abstract of judgment must be corrected because it continues to reflect the five prior prison terms that were stricken by the court under section 1172.75.

[GARY Note: No authority was cited for correcting the abstract, likely because the error and remedy are so obvious, but the there is much authority supporting such orders, such as those I have set forth below.]

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, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

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

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

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

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. 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, 883, 884

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

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000388

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.

First Holding:

When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

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

Second Holding:

AB 333’s changes to section 186.22 apply retroactively under Estrada.

Authority:

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

Third Holding:

AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

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

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

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. These changes also apply to the crime of active participation in a criminal street gang.

Authority:

PEN 186.22

People v. E.H. (2022) 75 Cal.App.5th 467, 479

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

People v. Rojas (2023) 15 Cal.5th 561, 565

Amelioration, Sentencing

Case: 000378

Posted on by Gary McCurdy

Error and/or relief

The court resentenced the defendant under section 1172.75 by striking the now-invalid prior prison term enhancements but concluded he was not eligible for further relief under the Three Strikes Reform Act of 2012. Reversed.

Holding:

Under section 1172.75, the court must resentence an eligible defendant. The resentencing must result in a lesser sentence than originally imposed unless the court is convinced by clear and convincing evidence that imposing a lesser sentence would endanger public safety. 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.

Thus, the court must apply the ameliorative provisions of the Three Strikes Reform Act unless it finds that reduction would “pose an unreasonable risk of danger to public safety” as that phrase is construed in the context of Three Strikes Reform Act. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant] pursuant to the revised penalty provisions of the Reform Act.

Authority:

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