Tag Archives: Recall of sentence or resentencing

Appellate Principles, Due process, Sentencing

Case 000235

Posted on by Gary McCurdy

Error and/or relief

After the initial conviction was overturned on appeal, and the defendant was again convicted at trial, it was error for the trial court to impose consecutive terms for counts that had been imposed concurrently following the first trial.

Holding:

If a defendant successfully challenges his conviction and obtains a new trial, the due process and double jeopardy clauses of the California Constitution prohibit the imposition of a greater sentence following retrial.

Authority:

People v. Torres (2005) 127 Cal.App.4th 1391, 1403

People v. Thompson (1998) 61 Cal.App.4th 1269, 1275–1276 [modifying sentence after trial court imposed a more severe penalty after the second trial]

Discretion, Sentencing, Standard of review

Case: 000230

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on the recall of his sentence under section 1172.75, the court failed to recalculate his custody credits upon resentencing. We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. When a defendant is imprisoned and later resentenced, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

We review a trial court’s decision not to strike a prior felony conviction for abuse of discretion. It is the defendant’s burden on appeal to show that the sentencing decision was irrational or arbitrary. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. In addition, we will not reverse a trial court’s sentencing decision merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371, 376-377

Duty of the court, Sentencing

Case: 000227

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court erred in its calculation of his custody credits. The court awarded custody credit of 461 days, the amount of custody credit listed on the defendant’s original abstract of judgment from 2012. The matter is remanded to the trial court to recalculate the defendant’s custody credits; the court shall amend the abstract of judgment accordingly.

Holding:

When a prison term already in progress is modified, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. As stated in section 2900.5, it is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to that section. The total number of days to be credited shall be contained in the abstract of judgment provided for in section 1213.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Dean (2024) 99 Cal.App.5th 391, 396 [resentencing courts must recalculate actual time served]

Abstracts and Minutes, Sentencing

Case: 000222

Posted on by Gary McCurdy

Error and/or relief

On appeal from resentencing under section 1172.75, the sole contention is that the trial court omitted updating his abstract of judgment with credit for time served as of the date he was resentenced. The case is remanded for the necessary credits correction and amendment of the abstract of judgment to reflect those credits.

Holding:

Absent a new sentence, the court left in place its 2023 amended abstract of judgment, with the same actual-days credit calculation as had been entered at defendant’s original 2015 sentencing. That calculation must be updated.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the 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.

Authority:

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

Third 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 preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000207

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. Defendant’s sentence is vacated, and this matter is remanded for further proceedings to include the option to retry the allegation and for resentencing.

First Holding:

Effective January 1, 2022, the Legislature enacted AB 333 to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 576

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

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

Second Holding:

Though the prior conviction of what purported to be a serious felony was sustained in 2014, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

APeople v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. 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, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall 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:

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.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

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

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Amelioration, Sentencing

Case: 000186

Posted on by Gary McCurdy

Error and/or relief

The defendant—whom a jury convicted of first degree murder in 1992—appeals the trial court’s order denying his Penal Code section 1172.6 resentencing petition at the prima facie stage. He contends he is entitled to an evidentiary hearing on his petition because the jury might have convicted him as a mere participant—rather than as the actual killer—under a felony murder theory of liability. The record of conviction, however, reveals no path permitting the jury to convict him as anything other than the actual killer. And he puts forth no specific facts that identify someone else as the direct perpetrator. Nor does he challenge any other elements of his conviction. We therefore conclude the court properly denied the petition, but we remand to give the defendant the opportunity to file an amended petition to address its current deficiencies.

Holding:

The record of conviction reveals no path permitting the jury to convict the defendant as anything but the actual killer. Out of an abundance of caution, however, we grant his request for an opportunity on remand to plead additional relevant facts in support of his petition. Accordingly, we conditionally affirm.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

People v. Curiel (2023) 15 Cal.5th 433, 462

People v. Glass (2025) 110 Cal.App.5th 922, 925

Appellate Principles, Duty of the court, Sentencing

Case: 000185

Posted on by Gary McCurdy

Error and/or relief

The defendant’s Penal Code section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions. The trial court held a resentencing hearing, struck the invalid enhancements, but declined to further reduce defendant’s sentence. We reverse for some certain conceded errors in the pronouncement of sentence, including with respect to custody credits, but otherwise affirm.

First Holding:

A trial court conducting a resentencing under section 1172.75 has discretion to dismiss a “strike” allegation under the Three Strikes law. There was no abuse of discretion here.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504

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

Second Holding:

The trial court calculated certain elements of the defendant’s sentence by subtracting the one-year prior prison term enhancements from his original sentence as opposed to the later sentence imposed on remand following a determination that it was error to sentence on two–rather than just one–of the counts because of Penal Code section 654. There was some further ambiguity in the sentence imposed at the section 1172.75 hearing. The matter must be remanded to the trial court to strike the prior prison term enhancements on Counts Two and Three, to clarify the sentence on Count Three remains stayed, and to clarify the status of the prior serious felony enhancement on Count Two.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Third Holding:

The trial court improperly delegated calculation of his custody credits to the California Department of Corrections and Rehabilitation.

Authority:

PC 2900.1

PC 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 23-24

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

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

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

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

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that hearing, 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 California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

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

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632