Tag Archives: Recall of sentence or resentencing

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so 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.

It also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

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. The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and 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:

PC 1172.6(c) and (d)

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

Third Holding:

At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations.

Authority:

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

Fourth Holding:

We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous.

Authority:

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

People v. Eynon (2021) 68 Cal.App.5th 967, 976

Fifth Holding:

The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage]

Sixth Holding:

In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977-978

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory]

Seventh Holding:

Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]

People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer]

Amelioration, Sentencing

Case: 000143

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.

First Holding:

If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested.

Authority:

PEN 1172.6(b)(1)(A), (3)

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Second Holding:

Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition.

Authority:

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

People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing]

Third Holding:

A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.

Authority:

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

People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]

People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act]

Amelioration, Sentencing

Case: 000139

Posted on by Gary McCurdy

Error and/or relief

The defendant contends, the People concede, and we agree the superior court erred in finding that the defendant was ineligible for relief as a matter of law with respect to his attempted murder conviction because in 2022 the Legislature clarified with the enactment of Senate Bill No. 775 that relief was available for individuals convicted of attempted murder and voluntary manslaughter. We reverse the order as to his attempted murder conviction. We remand for the court to appoint counsel and to consider the petition in light of the current provisions of section 1172.6.

First Holding:

Senate Bill 775, effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

PEN 1172.6

Second Holding:

Once a defendant files a facially valid petition with the required statutory language and a declaration that the defendant was eligible for relief under section 1172.6, subdivision (a), the court was required to appoint counsel upon request.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Amelioration, Sentencing

Case: 000135

Posted on by Gary McCurdy

Error and/or relief

We find that in making the prima facie determination, the trial court properly reviewed the preliminary hearing and partial trial transcripts as part of the record of conviction, completely independent from the factual basis stipulation at the plea hearing, to find defendant was the actual killer and ineligible for resentencing under section 1172.6. Defendant’s contrary claims, including his alleged “immunity” and ineffective assistance arguments, are refuted by the record. As in Patton, however, we grant defendant’s request to remand the matter for him to have the opportunity to file a supplemental petition in the trial court.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule by adding section 189(e). It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 50–51

People v. Strong (2022) 13 Cal.5th 698, 707–708

People v. Reyes (2023) 97 Cal.App.5th 292, 295

Second Holding:

While this appeal was pending, the California Supreme Court decided Patton and held that in making the prima facie determination as to whether a petitioner, who entered a plea instead of going to trial, was convicted under a now-invalid imputed malice theory of homicide in a section 1172.6 petition, the trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition. It disapproved of appellate decisions that conditioned the use of preliminary hearing transcripts to make the prima facie determination on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea. It affirmed the trial court’s denial of the section 1172.6 petition in that case but granted the defendant’s request to remand the matter for the opportunity to file an amended petition consistent with the Supreme Court’s ruling.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 569-570

Third Holding:

As relevant herein, the petitioner must declare (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine. (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)(1)–(3)

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 558

Fourth Holding:

When a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred.

Authority:

People v. Reyes (2023) 97 Cal.App.5th 292, 298

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 559

Fifth Holding:

The amendments to sections 188 and 189 did not invalidate murder convictions based on the theory that the defendant was the actual killer. Where the record of conviction shows the defendant was the actual killer, he was not convicted under a now-invalid imputed malice theory and is ineligible for relief as a matter of law, and no evidentiary hearing is required. If the trial court commits error in making the prima facie finding to deny the petition without an evidentiary hearing, the error is harmless if the defendant is ineligible for resentencing as a matter of law.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 707

People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167

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

People v. Garcia (2022) 82 Cal.App.5th 956, 973

People v. Lewis (2021) 11 Cal.5th 952, 973–974

Retroactivity, Sentencing

Case: 000134

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in imposing the upper term on factors that had not been proved to a jury beyond a reasonable doubt.

First Holding:

A criminal judgment does not become final for purposes of Estrada when an appellate court affirms a conviction, but leaves sentencing issues pending before the trial court following remand. During the resentencing on remand, the benefits of supervening ameliorative legislation apply retroactively.

Authority:

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

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

Second Holding:

Absent waiver or stipulation, aggravating factors such as the increasing seriousness of a defendant’s prior convictions and unsatisfactory performance on probation must be found true beyond a reasonable doubt by a jury before those facts can be used to justify an upper term sentence.

Authority:

PEN 1170

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

Third Holding:

This case must be distinguished from Brannon-Thompson, which found that the plain language of section 1172.75(d)(4) indicated the Legislature intended the new burden of proof amendments to section 1170(b) to apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing. In this case, the defendant was not being resentenced after a prior sentence that imposed an upper term was recalled.

Instead, he was on remand from the prior appeal directive to strike prior prison term enhancements before section 1172.75 even went into effect (which the court did). As such, when the trial court proceeded to resentence defendant in 2023, his sentence already lacked any enhancements imposed pursuant to former section 667.5(b). Defendant accordingly was not eligible for resentencing under section 1172.75 in 2023, making the provision inapplicable. Instead, appearing for resentencing based on a remand in the prior appeal, the defendant was entitled to the benefits of supervening ameliorative legislation, including the new evidentiary standards of section 1170(b).

Authority:

PEN 1170(b)

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

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

People v. Brannon-Thompson (2024) 104 Cal.App.5th 455

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

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

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

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

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

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

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

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Amelioration, Duty of the court, Sentencing

Case: 000125

Posted on by Gary McCurdy

Error and/or relief

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility. We therefore remand the matter for a new evidentiary hearing under section 1172.6(d). At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.

First Holding:

The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by SB 1437.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Second Holding:

The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt. A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 294-296

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

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000123

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of two counts of assault with a deadly weapon and found true that he personally inflicted great bodily injury in the commission of those counts. We conclude the injury to the victim in count 2, which the emergency room doctor described as a “superficial laceration,” is not sufficient to support the enhancement under section 12022.7(a). Consequently, we reverse the true finding, strike the one year imposed under section 12022.7(a), associated with count 2, and remand for resentencing to allow the trial court to exercise its discretion anew with the changed circumstance.

First Holding:

Great bodily injury is an injury that is greater than minor or moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Martinez (1985) 171 Cal.App.3d 727, 735–736 [evidence of superficial lacerations held not sufficient to prove great bodily injury]

Second Holding:

We review a challenge to the sufficiency of the evidence supporting a jury’s true finding on a section 12022.7(a) enhancement under the same standard that applies to a challenge to the sufficiency of the evidence to support a conviction. In considering a sufficiency of the evidence claim, we review the whole 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. Substantial evidence is evidence that reasonably inspires confidence and is of solid value.

Authority:

People v. Escobar (1992) 3 Cal.4th 740, 750

People v. Collins (2025) 17 Cal.5th 293, 307

Third Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term]

Amelioration, Duty of the court, Sentencing

Case: 000122

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. The People concede both of these points. We vacate the defendant’s sentence, and remand for a full resentencing with directions to recalculate the credit for time served.

First Holding:

Even where the defendant is serving a sentence under the Three Strikes law, on recall the trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety.

Authority:

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

Second Holding:

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

Authority:

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

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000121

Posted on by Gary McCurdy

Error and/or relief

The court failed to recalculate the actual time defendant had served pursuant to the sentence for which he was being resentenced and reflect those credits in the amended abstract of judgment.

First Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody.

Authority:

PEN 2900.5

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

Second Holding:

Generally, a clerical error is one inadvertently made. Clerical error can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705

Amelioration, Duty of the court, Sentencing

Case: 000120

Posted on by Gary McCurdy

Error and/or relief

The defendant submitted both a petition for writ of habeas corpus and a motion for recall and resentencing under section 1172.6. The trial court erroneously treated both as a petition for writ of habeas corpus, which it denied without prejudice to allow the defendant to separately file a petition under section 1172.6. Though contained in the same envelope and assigned a single case number by the court clerk, there were two separate matters presented to the trial court. The matter is remanded for the trial court to give due consideration to the petition/motion filed for recall of sentence under section 1172.6. There is also an error in the abstract of judgment that should be corrected, depending on the outcome of the hearing on the petition.

First Holding:

The record indicates that defendant submitted not only a petition for writ of habeas corpus, but also a separate motion for resentencing. The title page of the habeas petition states it was being filed concurrently with a motion for recall and resentencing pursuant to section 1172.6. Defendant included a separate section 1172.6 “motion” with its own title page and caption designating it as such. That defendant, a prisoner, mailed the documents in one envelope as opposed to two, and placed his “motion” for resentencing before the exhibits to the petition for writ of habeas corpus, does not change the fact he submitted a separate “motion” to the court. As for the assignment of only one case number—for the habeas proceeding—this was a clerical matter over which defendant had no control. The trial court was required to consider the motion/petition filed under section 1172.6.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960 [where resentencing petition complies with the three facial sufficiency requirements of sec. 1172.6(b), the court proceeds to consider whether the petitioner has made a prima facie case for relief under subd. (c)]

Second Holding:

The abstract contains an error on whether the two counts were ordered served concurrently or consecutively. Should the trial court determine defendant is ineligible for relief pursuant to section 1172.6, we direct the trial court to issue an amended abstract of judgment that corrects this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment]

Amelioration, Sentencing, Statutory interpretation

Case: 000119

Posted on by Gary McCurdy

Error and/or relief

Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75. We reverse and remand for resentencing.

Holding:

A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term.

Authority:

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

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133