Tag Archives: Recall of sentence or resentencing

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section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions.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

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews 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 the defendant guilty beyond a reasonable doubt. The meaning of a statute is a question of law that we review de novo.

Authority:

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

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

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Amelioration, Sentencing

Case: 000173

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from an order finding her ineligible for resentencing under Penal Code section 1172.75. The trial court found her ineligible because the prior prison term enhancement had been stayed and not executed. We reverse with instructions that the trial court conduct further proceedings under that section.

First Holding:

The defendant is not requesting resentencing under the Three Strikes Reform Act. She was not even eligible for the Three Strikes Reform Act process because her current felony is a serious felony, to which the Reform Act is inapplicable. She is requesting the trial court exercise its discretion under in the furtherance of justice under Romero to strike one of her prior strike offenses. Because she is not eligible for (and is not seeking relief under) the Three Strikes Reform Act, section 1172.75 does not unconstitutionally conflict with it.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 347, 363-364

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

Second Holding:

A defendant is entitled to the provisions of section 1172.75 even when execution was stayed for the now-invalid enhancement for a prior prison term.

Authority:

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

Third Holding:

[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 (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

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

Fourth Holding:

In 2020, the Legislature enacted section 1172.75, which limits the circumstances when section 667.5, subdivision (b) sentencing enhancements may be imposed. Someone serving a sentence that includes an enhancement that section 1172.75 now renders invalid is eligible for possible resentencing.

Authority:

PEN 1172.75

People v. Renteria (2023) 96 Cal.App.5th 1276, 1282

Fifth Holding:

Though inapplicable here because the defendant is ineligible for relief under the Three Strikes Reform Act, the Reform Act’s revised penalty provisions may be applied at a section 1172.25 resentencing if section 1170.126’s substantive requirements are satisfied.

Authority:

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

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

Case: 000172

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing, the abstract of judgment must be amended to reflect the additional days of credit for time served since the original sentence was imposed.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence.

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

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

Second Holding:

The abstract of judgment incorrectly reflects the trial court’s calculation of custody credits. The abstract of judgment must be amended to include an additional [more than 4,000 days] for the period the defendant remained in custody between his [after 2010] original sentencing and his [before 2025] resentencing.

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. The appellate court may direct the trial court to correct clerical errors in an abstract of judgment. I have set forth some of the authorities the court could have cited.]

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

Sentencing

Case: 000171

Posted on by Gary McCurdy

Error and/or relief

We agree that on the resentencing of the defendant, the court failed to award the proper number of custody credits.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. [Gary Note: though not expressly stated in the opinion, at resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence, per Buckhalter.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Bravo (1990) 219 Cal.App.3d 729, 735

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

Amelioration, Sentencing

Case: 000170

Posted on by Gary McCurdy

Error and/or relief

The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. It shall not result in a longer sentence than the one originally imposed.

The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Second 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:

People v. Rogers (2025) 108 Cal.App.5th 340, 36

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

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

Third Holding:

Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.

Authority:

PEN 1172.75

People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]

People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

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

Case: 000165

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the court erred in reimposing an unenforceable restitution order and in failing to update the defendant’s custody credits. Though the court did not orally reimpose the fine or recalculate credit for time served, the amended abstract of judgment reflects the fine and the credits he received at the defendant’s original sentencing.

First Holding:

The restitution fine imposed under section 1202.4(b) Must be vacated because it is over 10 years old.

Authority:

PEN 1465.9(d)

Second Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. The defendant is entitled to an updated abstract that accurately reflects the amount of custody credits earned.

Authority:

PEN 2900.1

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

PEN 1170b)(1)

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

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

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

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 Chapman. Such errors are prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Amelioration, Sentencing

Case: 000163

Posted on by Gary McCurdy

Error and/or relief

Here, the trial court erroneously declined to resentence the defendant under section 1172.75. Because the court never exercised its discretion under the statute, we remand for it to do so in accordance with the mandatory procedures for recall and resentencing under section 1172.75.

First Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a now-invalid prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Second Holding:

[Gary note: NOT discussed in this opinion, but important to know anyway.  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 (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

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