Tag Archives: Recall of sentence or resentencing

Discretion, Sentencing

Case 000636

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded to the lower court following the defendant’s first appeal in this case so that it could exercise its discretion to strike the vicarious gun use enhancements. On resentencing following the defendant’s first appeal in this case, the trial court imposed enhancements for the personal use of a firearm (sec. 12022.53(b), in lieu of the vicarious liability enhancements found true by the jury under subdivisions (d) and (e)(1) of section 12022.53.

The personal use of a firearm enhancements must be vacated because there was no jury finding that the defendant had personally used a firearm during the offense. The vicarious enhancement must be reimposed, and the matter should be remanded back to the trial court so that it may exercise its discretion to strike those enhancements.

First Holding:

A trial court has discretion to strike a section 12022.53(d) firearm enhancement and impose a lesser uncharged enhancement under subdivisions (b) or (c). A trial court is not categorically prohibited from imposing an uncharged, lesser-included enhancement when the prosecution has alleged the greater enhancement and the facts supporting the lesser enhancement have been alleged and found true.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

Second Holding:

In Arellano, our Supreme Court held that a trial court resentencing a petitioner under section 1172.6 lacked authority to impose a firearm enhancement that had never been admitted or found true by a trier of fact. The enhancement had been dismissed as part of a negotiated disposition, and the trial court relied on police reports and other hearsay summaries to conclude that the defendant was armed.

The court rejected this approach and explained that resentencing under section 1172.6 is limited to the target offense or underlying felony. A similar defect occurred here. The jury never found that the defendant personally used a firearm. Instead, the jury returned true findings only under section 12022.53, subdivisions (d) and (e)(1), which required proof that a principal discharged a firearm during a gang-related offense, causing great bodily injury or death.

As in Arellano, the trial court later relied on its own factual findings from a collateral proceeding (a separate hearing on the defendant’s petition for resentencing under section 1172.6) to conclude that the defendant personally used a firearm during the offense. The trial court’s finding in a collateral proceeding was not sufficient to support imposition of the enhancement.

The matter is remanded for resentencing, during which the court shall exercise its discretion under section 1385 and Tirado to determine whether to strike or dismiss the lawfully adjudicated enhancements.

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 464-465

Amelioration, Appellate Principles, Fines and fees, Sentencing

Case 000635

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider the recent decision in Kopp on the imposition of fines and fees, and also to conduct a full resentencing in light of this remand for resentencing.

First Holding:

Kopp clarified the standards applied when a defendant challenges the imposition of certain fines and fees on the grounds that they are unlawful because he cannot afford to pay them. We remand the matter to the trial court to apply those standards regarding its imposition of various fines and fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Second Holding:

Because his conviction is not final on direct review, the defendant may be entitled to the benefit of various intervening changes in the law, including AB 333 (gang allegations) and the Racial Justice Act. AB 333, for example, limits what predicate offenses the People can now use to prove a group is a criminal street gang under Penal Code section 186.22.

On remand, the defendant can ask the trial court to provide relief under relevant intervening ameliorative sentencing laws, including but not limited to SB 81, 483, 567, and 1393; AB 333 and 518, as well as any appropriate challenges under the Racial Justice Act. But this court need not decide which intervening laws apply retroactively and whether their application requires any retrial or change in sentence.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 448

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Buza (2018) 4 Cal.5th 658, 693 [courts abide by a cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more]

Amelioration, Sentencing

Case 000634

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied Penal Code section 1172.6 resentencing relief at the prima facie stage. We reverse the trial court’s order denying resentencing relief and direct the trial court to issue an order to show cause.

First Holding:

SB 1437, effective as of January 1, 2019, made ameliorative changes to our state’s homicide law. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. This means, for instance, that a defendant is no longer guilty of murder as an aider and abettor solely because the natural and probable consequences of that other crime included a confederate’s commission of murder.

Authority:

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

Second Holding:

These ameliorative changes apply retroactively through the resentencing process set forth in section 1172.6. Those convicted of murder or attempted murder under certain imputed malice theories may seek resentencing. So may a person convicted of manslaughter who was charged with murder when three conditions apply. First, the charging document allowed the prosecution to proceed under a theory of murder in which malice is imputed to a person based solely on that person’s participation in a crime. Second, the petitioner accepted a manslaughter plea offer in lieu of a trial on such a murder charge. And third, the petitioner could not presently be convicted of murder because of the changes to homicide law that took effect in 2019.

Authority:

PEN 1172.6

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

Third Holding:

Upon receipt of a facially sufficient petition — along with briefing in opposition or support — the trial court holds a hearing to determine whether a petitioner has made a prima facie case for relief. If so, the court issues an order to show cause and then holds an evidentiary hearing to determine entitlement to relief. If not, the court denies the petition.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 559, 562

Fourth Holding:

We independently review a trial court’s conclusion that a petitioner failed to make a prima facie case for relief. The record of conviction informs the prima facie determination. And that record includes a preliminary hearing transcript preceding a guilty plea. A court, however, may not engage in factfinding, weigh the evidence, or make credibility determinations at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

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

People v. Patton (2025) 17 Cal.5th 549, 559, 568

Fifth Holding:

A review of the preliminary hearing transcript in this case reveals that it possible the defendant could have been convicted at trial under a now-invalid theory. There was witness testimony that two unidentified men initiated the attack, which raises at least a triable issue as to whether the defendant was the actual killer, and if he was not, whether he knew of and intended to aid in the criminal purpose of the actual killer as required for direct aiding and abetting. Given this state of the record of conviction, the defendant’s guilty plea to voluntary manslaughter does not prove that he could still be convicted of murder under current law.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213

People v. Patton (2025) 17 Cal.5th 549, 567 [A dispute regarding the basis of a conviction might arise if, for instance, a petitioner points to specific facts that identify someone else as the direct perpetrator.]

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000629

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court imposed a $10,000 restitution fine under section 1202.4(b), that is no longer enforceable or collectible, and it imposed additional fines and fees that were not originally imposed and which came into effect after the defendant’s original sentencing. We modify the judgment by vacating the challenged fines and fees.

First Holding:

In 2021, the Legislature enacted SB (Stats. 2021 (2021-2022 Reg. Sess.), retroactively invalidating prison prior enhancements imposed pursuant to section 667.5(b), except those that were based on a conviction for a sexually violent offense. Once the court verifies that the current judgment includes such a sentencing enhancement, the court shall recall the sentence and resentence the defendant. Resentencing under section 1172.75 is not limited to striking the section 667.5(b), enhancement. Rather, the court must conduct a full resentencing.

Authority:

PEN 1172.75

People v. Green (2024) 104 Cal.App.5th 365, 368, 373

People v. Rogers (2025) 108 Cal.App.5th 340, 348, fn. 5

People v. Gray (2024) 101 Cal.App.5th 148, 163

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Garcia (2024) 101 Cal.App.5th 848, 855

Second Holding:

Our review of the imposition of fines and fees is de novo.

Authority:

People v. Arroyo (2016) 62 Cal.4th 589, 593 [de novo review in cases of statutory interpretation]

People v. Guillen (2013) 218 Cal.App.4th 975, 983 [authority of trial court to impose fine or fees turns on relevant statutory provisions and presents essentially an issue of law]

Third Holding:

Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, on the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. The defendant was resentenced in November 2024, weeks before the effective date of the amendment. But the amendment applies retroactively to his sentence. The section 1202.4 restitution fine, which was imposed over 10 years ago in 2003, must therefore be vacated.

Authority:

PC 1465.9

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

The statute authorizing the remaining fines and fees did not become effective until after the defendant’s conviction. Accordingly, the superior court was not authorized to impose these fines and fees on resentencing.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754

People v. Castillo (2010) 182 Cal.App.4th 1410, 1414

People v. Hayes (1989) 49 Cal.3d 1260, 1274 [A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise]

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

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

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367