Tag Archives: Recall of sentence or resentencing

Juveniles, Sentencing

Case 000921

Posted on by Gary McCurdy

Error and/or relief

The defendant was 16 years old when he committed attempted murder on two people, and he was convicted by plea as an adult in 2015. He subsequently petitioned under section 1172.6 for recall of his sentence in light of changes to the law on liability for murder and attempted murder by those who were not the direct perpetrators. He was resentenced to five years in prison.

On appeal, he contends correctly that the court should have conducted a transfer hearing in light of changes in the statute enacted through Proposition 57.

Holding:

In 2016, voters passed “The Public Safety and Rehabilitation Act of 2016” to obligate the People to criminally charge a minor in the juvenile court unless the juvenile court determines after a transfer hearing that the minor should be tried and sentenced as an adult.

This part of the act applies retroactively to nonfinal judgments. When a court vacates a criminal sentence after a successful petition for resentencing, it reacquires jurisdiction to reimpose punishment and the judgment reverts to being nonfinal for that purpose.

The parties agree that the defendant is entitled to a juvenile court transfer hearing, and for these reasons so do we.

But we emphasize: Whatever potential that hearing may have for reducing his punishment (the nonfinal part of his judgment), it does not authorize or constitute relitigation of guilt.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 304, 305–307

People v. Padilla (2022) 13 Cal.5th 152, 158, 161-162, 167, 169-170

Amelioration, Plea bargains, Sentencing

Case 000919

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to consideration for resentencing under section 1172.75 even though she stipulated to the upper term in her original plea agreement. The matter is remanded.

Under Mitchell, the defendant is free to raise the issue of whether section 1171 precludes the setting aside of her plea if the court modifies the sentence to something less than the stipulated sentence.

First Holding:

The defendant is entitled to the retroactive benefit of section 1170(b)’s provisions notwithstanding her agreement to a specified term as part of a plea bargain.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Second Holding:

The proper remedy is to remand this case and permit the defendant to pursue relief under the new benefit that SB 567 confers. On remand, the defendant may either waive or invoke the requirements of section 1170(b). If she reaffirms her acceptance of the plea bargain and enters a new waiver of section 1170(b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties.

If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence. If the court also accepts the modification it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw her assent to the bargain. In that case the court shall set aside the plea, the matter shall proceed as to the defendant as if no plea had been entered, and the case shall be set for trial.

In keeping with footnote 9 of Mitchell, however, on our remand to the trial court, the defendant may present her argument that section 1171, enacted effective 1/1/25, provides that any modification of her sentence under ameliorative provisions shall not result in setting aside her plea.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000911

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.

(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)

First Holding:

Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.

In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Authority:

PEN 1172.1

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

Second Holding:

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.

Authority:

PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]

Third Holding:

Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.

Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]

Fourth Holding:

The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]

Fifth Holding:

(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)

Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.

Authority:

People v. Espino (2026) 20 Cal.5th 57

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

Amelioration, Sentencing

Case 000909

Posted on by Gary McCurdy

Error and/or relief

At a hearing pursuant to Penal Code section 1172.75, the court found the defendant ineligible for resentencing. Over the period during which the resentencing was being resolved, the defendant was released from prison and placed on parole. The court concluded that he was no longer eligible for relief because he was no longer serving a term of imprisonment.

The court erred in concluding that the defendant was no longer entitled to a resentencing hearing. We reverse and remand to the trial court with directions to hold a full resentencing hearing.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b), to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code. In 2021, SB 483 made this change retroactive.

It enacted what is now Penal Code section 1172.75, which declares 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 as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054-1055

Second Holding:

Resentencing pursuant to section 1172.75 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. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

The trial court must apply the sentencing rules of the Judicial Council as well as 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.

In addition, 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:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a 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, 1054

Fourth Holding:

Section 1172.75 requires that the defendant be incarcerated at the beginning of the process, when correctional officials identify those persons in their custody currently serving a term for a judgment that includes a now-invalid one-year prior prison term enhancement. It does not require the defendant thereafter remain incarcerated until the time of resentencing to maintain his or her eligibility for relief.

Nor is resentencing such a subsequently released defendant an empty exercise, as it can afford practical relief that includes shortening the applicable parole term. Thus, a person who has been released on parole prior to the resentencing hearing remains eligible and should still be resentenced.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057, 1061

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review

Case 000906

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under section 1172.75, the trial court struck the one-year prior but otherwise declined to reduce the defendant’s sentence. The trial court did not apply the correct standard of law and therefore abused its discretion. We reverse the order.

First Holding:

SB 136 (2019–2020 Reg. Sess. amended section 667.5b) to allow courts to impose one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, SB 483 (2021–2022 Reg. Sess.) made the amendment retroactive to final cases and added what is now section 1172.75.

Section 1172.75 sets forth the process for recalling sentences and resentencing. If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

At resentencing, 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 667.5(b)

PEN 1172.75

Second Holding:

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.

At a hearing under section 1172.75, the resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75(d)(2)

Third Holding:

As relevant here, SB 81 (2021–2022) effected a change in law by adding subdivision (c) to section 1385. That subdivision 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 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. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385(c)

Fourth Holding:

Section 1385(c) sets forth several mitigating circumstances for consideration. Two of them are relevant in this case. Under section 1385(c), 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.

Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in furtherance of justice.

This means that, absent a danger to 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:

PEN 1385(c)

People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038

Fifth Holding:

We review a trial court’s sentencing decision under section 1172.75 for abuse of discretion and ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

We similarly review a trial court’s decision not to dismiss a sentencing enhancement 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.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 857

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

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

Sixth Holding:

We reject the Attorney General’s argument that the defendant forfeited this contention because he failed to raise it below. The defendant did not have to ask the trial court to apply the correct standard of law to preserve a claim on appeal that the trial court applied an incorrect one. Rather, a defendant is entitled to sentencing decisions based on the sentencing court’s informed discretion, including one informed by the correct law. In any event, we may review any question of law involved in any ruling or order that affects the defendant’s substantial rights, even if the defendant did not object below.

(Gary note: The court proceeded to analyze the trial court’s treatment or lack thereof of facts specific to this defendant that demonstrated the abuse of discretion.)

Authority:

PEN 1259

People v. Salazar (2023) 15 Cal.5th 416, 424

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

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

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

People v. Buycks (2018) 5 Cal.5th 857, 893

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it 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.

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(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances 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

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. One factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

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

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

People v. Myers (1999) 69 Cal.App.4th 305, 310

Amelioration, Sentencing, Standard of review, Statutory interpretation

Case 000903

Posted on by Gary McCurdy

Error and/or relief

A defendant sentenced to LWOP is not rendered ineligible for relief under section 1172.75 unless the person has been convicted of a sexually violent offense.

First Holding:

In 2021, the Legislature declared legally invalid all prior-prison-term sentencing enhancements imposed pursuant to Penal Code section 667.5(b) before January 1, 2020, except in cases involving terms for sexually violent offenses. Section 1172.75 established a procedure for resentencing individuals serving a term for a judgment that includes such enhancements.

Three years later, the Legislature amended the statute to preclude resentencing for an individual who has been convicted of a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole (LWOP).

Authority:

PEN 1172.75(f)

Second Holding:

The defendant was sentenced to LWOP, but has not been convicted of any sexually violent offense. Having examined the text and the legislative history of section 1172.75(f), we conclude the Legislature intended to exclude from resentencing only those individuals who were convicted of a sexually violent offense and sentenced to death or LWOP.

We review questions of statutory interpretation de novo. 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:

People v. Cornett (2012) 53 Cal.4th 1261, 1265

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

People v. Robinson (2026) 120 Cal.App.5th 516, 522, review granted July 15, 2026, S297048

Third Holding:

Our colleagues in the Fifth District Court of Appeal in Robinson,recently considered how to interpret section 1172.75(f). The court first observed that the ordinary and usual usage of ‘and’ is as a conjunctive, meaning an additional thing, also, or plus.

Further, the Legislature had used the term “and” and “or” in different parts of subdivision (f), which suggested that the Legislature understood the difference between the typically conjunctive “and” and the typically disjunctive “or.” It therefore appeared the challenged portion of subdivision (f) was intended to be construed conjunctively to exclude an individual who has been convicted of a sexually violent offense and sentenced to death or a life term without the possibility of parole.

The Robinson court further noted that even if it were to assume the plain language of section 1172,75(f) was ambiguous as to whether it should be read conjunctively or disjunctively, the legislative history supported a conjunctive interpretation.

As the plain meaning of the text and the legislative history both support a narrow reading of section 1172.75(f), we agree with the court’s holding in Robinson and find that section 1172.75(f) applies only to individuals serving a sentence of death or LWOP who are also convicted of a sexually violent offense as defined by Welfare and Institutions Code section 6600(b). Because petitioner was not convicted of a sexually violent offense, he is eligible for recall and resentencing under section 1172.75.

Authority:

People v. Robinson (2026) 120 Cal.App.5th 516, 524-526, review granted July 15, 2026, S297048

Amelioration, Sentencing

Case 000898

Posted on by Gary McCurdy

Error and/or relief

AB 333 amendments apply retroactively because the defendant’s judgment was not final following recall of his sentence, reverse his gang conviction and gang enhancements, and remand for further proceedings consistent with this opinion.

First Holding:

In 2022, AB 333 went into effect and made the following changes to the law on gang offenses and enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a ‘criminal street gang, AB 333 requires that any such pattern have been ‘collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) 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 opposed 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, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Additionally, to prove collective engagement under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

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

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments apply retroactively to appellant’s case, as the judgment became nonfinal when he returned to the trial court under section 1172.75 for recall and resentencing. When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada purposes

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 394

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

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

Third Holding:

Here, section 1172.75 required the trial court to recall the sentence and resentence appellant. The court was to 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. As such, appellant’s judgment became nonfinal for Estrada purposes, and the court should have addressed amendments made by AB 333.

Authority:

PEN 1172.75

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

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381 [defendant entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under sec. 1170(d)]

Fourth Holding:

The jury’s findings on the gang allegations in 2015 were made prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Respondent concedes the record does not disclose the error was harmless beyond a reasonable doubt and that remand is required.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fifth Holding:

Upon remand the prosecution must be given an opportunity to establish the elements of the substantive gang offense charged in count 5 and the gang enhancements on counts 1 through 3 and 8 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 33, the trial court must conduct a full resentencing.

Authority:

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

 

Sentencing, Sixth Amendment

Case 000897

Posted on by Gary McCurdy

Error and/or relief

On remand following the defendant’s earlier appeal, the trial court imposed an upper term based on impermissible aggravating recidivism factors.

Holding:

Under the Sixth Amendment, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Here, the court imposed the upper term based on the aggravating facts that the defendant’s prior convictions were numerous and of increasing seriousness and his performance on probation was unsatisfactory.

Because the defendant did not stipulate to these facts, which go beyond the bare fact of his prior convictions and their elements, he was entitled to a jury trial on them. That he did not receive one renders the sentence unauthorized.

Accordingly, we vacate the sentence and remand the matter to give the People an opportunity to retry the aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1091

People v. Lynch (2024) 16 Cal.5th 730, 776 [proper remedy where aggravating facts were not tried to a jury is to remand and give the People an opportunity to retry the aggravating facts]

 

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Amelioration, Duty of the court, Sentencing

Case 000892

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant a full resentencing at the hearing held under section 1172.75. At the initial hearing, the defendant agreed that the court could proceed with striking the now-invalid prior prison term enhancement with the judge’s assurance that the defendant could seek a full resentencing at a later date.

First Holding:

When the defendant did request the full resentencing, the trial court denied it based on the Tang decision, which held that a defendant was not eligible for resentencing because his prior conviction had previously been stricken and he was not serving a sentence under which that prior conviction was a component.

But Tang was not applicable. In Tang, the prior conviction enhancement was stricken on direct appeal a full decade before Tang sought resentencing under section 1172.75.

Here, the enhancement was stricken as part of a single proceeding under section 1172.5 held on two dates. Moreover, the defendant only consented to bifurcating that one proceeding based on the court’s assurance it would later conduct a full resentencing hearing, and it was improper for the court to later render that promise meaningless.

Authority:

PEN 1172.75

People v. Tang (2025) 109 Cal.App.5th 1003

(Gary note: the court did not expressly cite any authority for the recognition that a defendant eligible for relief under section 1172.75 is entitled to a full resentencing. The courts have interpreted section 1172.75 as, by its plain terms, requiring a full resentencing, not merely that the trial court strike the newly invalid enhancements. I have set forth two cases as a convenience for the reader that support that principle, though Buycks was addressing a different statute.)

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

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

Fines and fees, Sentencing

Case 000891

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.6, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, section 1465.9 was amended to state that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Here, the trial court imposed the $200 restitution fine more than 10 years before denying the defendant’s resentencing petition. As the People concede, that fine must therefore be vacated

Authority:

PEN 1465.9(d)

Amelioration, Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 000888

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. There could be no rational tactical reason for defense counsel to concede that the defendant was ineligible.

First Holding:

In 2018, the Legislature amended the definition of felony murder in section 189 to restrict culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

At the same time, the Legislature added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine, to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437. I

f the petition makes a prima facie case for relief the court must hold an evidentiary hearing. At this hearing, the People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the law as it exists now, with the trial judge sitting as factfinder.

Authority:

PEN 189

PEN 1172.6

Second Holding:

When conducting a prima facie review, the court takes the 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.

If the record of conviction does not conclusively demonstrate that the defendant engaged in the requisite acts and had the requisite intent to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.

A preliminary hearing transcript is part of the record of conviction for these purposes, and courts may rely on them when reviewing petitions at the prima facie stage.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 975

People v. Barboza (2021) 68 Cal.App.5th 955, 965-966

People v. Patton (2025) 17 Cal.5th 549, 568 [there is no dispute that the record of conviction the parties may consult at the prima facie stage includes a preliminary hearing transcript preceding a guilty plea.]

Third Holding:

We review the trial court’s decision at the prima facie stage de novo. Reviewing de novo, we therefore find that the defendant established a prima facie case for relief, and the trial court should not have denied his petition for failing to do so.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

At the hearing, the defendant’s counsel stated that he was appointed to determine eligibility pursuant to 1172.6, and concluded the defendant was not eligible.

The defendant’s counsel cited cases involving defendants who made a prima facie showing for the proposition that a guilty plea is a judicial admission. That it’s an admission that he was, in fact, the killer, and therefore the defendant could not state a prima facie case for relief. Based on this, the court summarily denied the defndant’s petition.

Contrary to the court’s and counsel’s understanding below, a guilty plea (without more) is not an admission to any particular theory of guilt, and therefore cannot render a defendant ineligible for relief as a matter of law.

Moreover, the record of conviction, including the preliminary hearing transcript, does not contain any facts definitively foreclosing the defendant’s eligibility for relief. It is undisputed that the defendant was not the sole participant in either the burglary or murder of the victim.

Nor is there any clear evidence the defendant was the actual killer—indeed, the only evidence presented suggests that the co-defendant, not not the defendant, was the actual killer.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977 [By pleading guilty, the defendant admitted every element of the charged offense but the defendant did not admit facts supporting liability on any particular theory. Accordingly, the guilty plea did not constitute an admission that the defendant acted with malice.]

Fifth Holding:

The People assert the doctrine of invited error. The doctrine of invited error is an application of the estoppel principle and applies when a party invites the court or the jury to commit error.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. It is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.

However, for the doctrine to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In order to apply the doctrine, the record must show only that counsel made a conscious, deliberate tactical choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.

In other words, the invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law.  We conclude that on this record defense counsel’s decision to concede that the defendant is ineligible for relief was not a deliberate tactical choice.

Put simply, there was no possible tactical purpose for counsel’s decision to concede the matter. The defendant did not stand to receive any possible benefit from this concession, and therefore the decision to concede could only have been a genuine mistake.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1072

Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Cooper (1991) 53 Cal.3d 771, 83

People v. Duncan (1991) 53 Cal.3d 955, 970

People v. Wader (1993) 5 Cal.4th 610, 658

Sixth Holding:

Even if the invited error doctrine did apply, we would still reach the merits.

Because a deliberate tactical choice by counsel may be an incompetent one, courts have recognized that defendants barred from raising error under the invited error doctrine may instead claim they received ineffective assistance of counsel.

However, courts may also address the merits of an otherwise procedurally barred claim in order to avert any claim of inadequate assistance of counsel. T

hus, even if we concluded the defendant had invited the error he now complains of, we would exercise our discretion to reach the merits anyway to avoid the same result obtaining through an ineffective assistance of counsel claim.

We reverse the order denying the defendant’s section 1172.6 petition and remand. On remand, we direct the trial court to issue an order to show cause and to conduct further proceedings as required under section 1172.6.

Authority:

People v. Wader (1993) 5 Cal.4th 610,

People v. Yarbrough (2008) 169 Cal.App.4th 303, 310