Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case 000559

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage, because the record did not conclusively demonstrate ineligibility as a matter of law, even though he admitted the personal use of firearm enhancements as part of his plea bargain. Specifically, in his plea colloquy, the defendant did not admit facts or a specific theory of attempted murder liability that would make him ineligible for relief.

First Holding:

Effective 2019, SB 1437 amended sections 188 and 189 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. Under the amended law, malice cannot be imputed to a person based solely on his or her participation in a crime.

In addition to amending sections 188 and 189, SB 1437 created a procedural mechanism, now codified in section 1172.6 for individuals convicted of murder under the former versions of sections 188 and 189 to petition the trial court for resentencing. Two years later, SB 775 expanded section 1172.6 relief to individuals convicted of attempted murder under the natural and probable consequences doctrine and manslaughter. Section 1172.6 applies to individuals who pleaded guilty to attempted murder and would have been subject to prosecution for attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Rivera (2021) 62 Cal.App.5th 217, 227

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

People v. Estrada (2024) 101 Cal.App.5th 328, 335, 336

Second Holding:

To be eligible for relief under section 1172.6, a defendant must make a prima facie showing that (1) the complaint or information allowed the People to prosecute the defendant for attempted murder under the natural and probable consequences doctrine; (2) the defendant was convicted of attempted murder or entered a plea to attempted murder, and (3) the defendant could not presently be convicted of attempted murder under the current versions of sections 188 or 189.

Authority:

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

Third Holding:

The trial court’s prima facie inquiry is limited. The court must accept the defendant’s allegations as true and assess whether the defendant would be entitled to relief if the allegations were true. If the defendant makes a prima facie showing, the court must issue an order to show cause and hold an evidentiary hearing where the People must prove beyond a reasonable doubt that the defendant could be convicted of attempted murder under the current versions of section 188 or 189.

Authority:

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

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

Fourth Holding:

A trial court may deny a resentencing petition at the prima facie stage only if the petitioner is ineligible for relief as a matter of law. In making its determination, the court may examine the record of conviction. At this stage, the court should not reject the factual allegations in the defendant’s petition on credibility grounds or engage in factfinding by weighing the evidence or exercising its discretion.

Authority:

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

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

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

Fines and fees, Sentencing

Case 000547

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the balance of the restitution fine must be struck, as it was imposed more than 10 years ago.

Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years cannot be collected upon. The restitution fine here more than 10 years ago. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Discretion, Sentencing

Case 000543

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.

First Holding:

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:

PEN 1385

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

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

Second Holding:

The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

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

Third Holding:

Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854

Fourth Holding:

We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377-378

Fifth Holding:

Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Amelioration, Sentencing

Case 000542

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that a defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB No. 136 retroactive by adding what is now numbered section 1172.75 to the Penal Code. Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

People v. Burgess (2022) 86 Cal.App.5th 375, 380

Second Holding:

A court has long had the authority to exercise its discretion and dismiss one or more prior serious felonies that are charged as Strikes under the Three Strikes law. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 hearing. 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, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either. As the trial court misunderstood the scope of its discretion, he case is remanded for a resentencing hearing. At that hearing, the trial court is directed to consider its full range of lawful sentencing options, including whether to grant or deny the defendant’s Romero motion.

Authority:

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

People v. Rogers (2025) 108 Cal.App.5th 340, 345, 362

Amelioration, Sentencing

Case 000534

Posted on by Gary McCurdy

Error and/or relief

Though we affirm the denial of the defendant’s petition under section 1172.6, the matter is remanded to give the defendant the opportunity to amend his petition to include details that refute the record of conviction on which the trial court concluded the defendant had not made a prima facie showing of eligibility for relief.

First Holding:

Add holding The defendant filed a form petition for relief under section 1172.6, seeking recall of his conviction in light of changes in the law on murder and attempted murder. He simply checked off the blanks. The record of conviction, however, showed that only one person–the defendant–committed the attempted murder. The defendant did not submit further response, and the petition was denied. After the denial, the Supreme Court decided Patton.

In Patton, although the Supreme Court affirmed the lower court’s order denying resentencing relief where Patton had offered only conclusory allegations of entitlement to relief under section 1172.6, at Patton’s request the Supreme Court remanded the case to the superior court with directions to consider an amended petition if Patton chose to file one. The defendant’s request here for similar disposition appears appropriate. It is unknown whether the defendant will be able to allege additional facts sufficient to make a prima facie showing, but we follow the California Supreme Court’s lead and remand the matter in an abundance of caution to permit him to file an amended petition if he is able to do so.
here

Authority:

People v. Patton (2025) 17 Cal.5th 549, 557

People v. Rodriguez (2026) 117 Cal.App.5th 1179, 1196

People v. Glass (2025) 110 Cal.App.5th 922, 925, 930

Second Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It accomplished this by amending sections 188 and 189.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957

Third Holding:

Effective January 1, 2022, SB 775 (2021–2022 Reg. Sess.) amended the statute to include attempted murder under the natural and probable consequences doctrine and manslaughter. The Legislature provided a procedure, now codified in section 1172.6, whereby defendants may petition the court to vacate their convictions and seek resentencing on any remaining counts if they show they could not now be convicted of murder, attempted murder or manslaughter because of the changes to sections 188 and 189. Alternatively, persons are eligible who accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder. attempted murder or manslaughter under the law as it was before SB 1437 became effective.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957