Tag Archives: Recall of sentence or resentencing

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]

First Holding:

As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.

Authority:

PEN 1172.75(f)

Second Holding:

This is a question of statutory interpretation that we review de novo.

Authority:

Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40

Third Holding:

When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

Fourth Holding:

Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.

Authority:

PEN 1172.75

Fifth Holding:

Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of 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. Resentencing pursuant to section 1172.75 must “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. In no circumstance can resentencing result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

Sixth Holding:

Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”

Authority:

PEN 1172.75(f)

Seventh Holding:

The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.

Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 990–991

In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824

(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.

(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)

Amelioration, Fines and fees, Sentencing

Case 000620

Posted on by Gary McCurdy

Error and/or relief

At a full resentencing conducted while vacating the defendant’s one-year prior prison sentence enhancements pursuant to Penal Code section 1172.75, the trial court declined to consider whether two of defendant’s prior “strike” convictions were still valid under the Three Strikes Reform Act of 2012, denied his request to dismiss those strikes under section 1385, imposed a new 10-year criminal protective order, and re-imposed a $5,000 restitution fine.

The matter is reversed for the court to hold a full resentencing hearing and exercise its discretion on whether or not to strike the prior convictions. Further, the court had no jurisdiction to reimpose a restitution fine because it had been ordered more than 10 years earlier and was rendered expired.

First Holding:

Under section 1172.75, a defendant who is eligible to have a prior prison sentence enhancement stricken is entitled to a full resentencing, at which time the trial court is to 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

People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted* Oct. 23, 2024, S286987

[*Gary note: The Supreme Court issued its opinion in Espino on July 2, 2026, and affirmed the result in the Court of Appeal Espino decision–that a person is entitled to relief under section 1172.75 even if the punishment for the now-invalid prior prison term enhancement was stricken–resolving a question that was left unanswered in People v. Rhodius (2025) 17 Cal.5th 1050)]

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

Second Holding:

In Guevara, our Supreme Court held that a trial court engaged in a full resentencing under section 1172.75 of a person serving a life sentence under the Three Strikes Law must apply the Three Strikes Reform Act of 2012, including its provision according trial courts a discretionary override—as to defendants who would otherwise be eligible for relief—not to grant relief if the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Third Holding:

Reversal and remand are necessary so that the trial court may consider whether the Reform Act would apply to the third-strike sentences imposed in this case and, if so, whether exercise of the court’s discretionary override is warranted. On remand, the court may also entertain any further requests to dismiss the prior strike convictions under section 1385(a)—but not under section 1385(c).

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243-244

Fourth Holding:

However, the court may not impose a restitution fine pursuant to section 1202.4(b) because the 2025 amendment to section 1465.9 provides that a restitution fine expires 10 years after the date of imposition. Because the restitution fine in this case was imposed over 25 years ago, it expired and may not be reimposed.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another point)

Amelioration, Elements of crime, Sentencing

Case 000615

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying her request for resentencing under Penal Code section 1172.75. We reverse the order because she was entitled to have the court consider her eligibility for ameliorative relief under changes to the former version of section 186.22 (under which she had been convicted) made by AB 333.

First Holding:

The defendant’s judgment became nonfinal when she returned to the trial court under section 1172.75 for recall and resentencing. Section 1172.75 provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid.

Once the trial court verifies the current judgment includes the enhancement, the court shall recall the sentence and resentence the defendant. When resentencing the defendant, the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

By the plain language of the statute, the defendant was entitled to be considered for any legislative enactments that might provide for a reduction of sentence.

Authority:

PEN 1172.75

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Second Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all nonfinal cases. For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability. In the context of recall and resentencing, a granting of a petition for resentencing renders a conviction nonfinal for purposes of retroactive application of ameliorative legislation.

Authority:

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

People v. Esquivel (2021) 11 Cal.5th 671, 679

People v. Lopez (2025) 17 Cal.5th 388, 392-393

People v. Trent (2025) 112 Cal.App.5th 251 [defendant entitled to retroactive application of Assembly Bill No. 333 upon resentencing under section 1172.6 based on changes to felony murder rule]

People v. Keel (2022) 84 Cal.App.5th 546, 551 [defendant entitled to retroactive application for Proposition 57 and Senate Bill No. 1391 (2017–2018 Reg. Sess.) upon resentencing pursuant to section 1172.6]

Third Holding:

In 2021, the Legislature passed AB 333, enacting the STEP Forward Act of 2021. AB 333 made several changes to the law on gang enhancements.

First, it substantively narrowed the definition of a criminal street gang.

Second, it also changed former subdivision (f)’s requirement that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang to now require that any such pattern be collectively engaged in by members of the gang.

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

Fourth, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. The defendant was entitled to the benefit of AB 333 because her judgment was not final when the court engaged in resentencing pursuant to section 1172.75

Authority:

PEN 186.22

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

Amelioration, Sentencing, Sixth Amendment

Case 000612

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to resentence the defendant under section 1172.75 in his absence where there was no waiver of his presence.

First Holding:

Reversal is required for a new hearing at which defendant may be present or validly waive his presence. Nothing in the record at the resentencing hearing reflected a valid waiver, nor similarly was there evidence that the defendant or his attorney previously entered a valid waiver on the record. We cannot say the error was harmless given that section 1172.75(d)(3) calls for consideration of the postconviction factors defendant enumerated in his brief, but the defendant was deprived of his right to address these factors personally if he chose to do so or to aid his attorney in doing so. The error thus was not harmless beyond a reasonable doubt.

Authority:

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

People v. Quan (2023) 96 Cal.App.5th 524, 535

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

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the 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.

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

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

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

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391