Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case 000477

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court failed to conduct a full resentencing because it limited resentencing to only one of the several cases consolidated into an aggregate sentence. The defendant had been sentenced in the 1990s in two separate sentencing hearings involving multiple cases. Only one of the cases was enhanced by a now invalid prior prison term enhancement. That case made him eligible for resentencing under section 1172.75. The trial court conducted a resentencing hearing under section 1172.75 on only that single case, and declined to resentence on the others. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the late 1995 aggregate sentence.

First Holding:

Section 1172.75(a) provides thatany sentence enhancement that was imposed prior to January 1, 2020, 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Once the California Department of Corrections and Rehabilitation (CDCR) identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant. Here, defendant’s sentence was subject to recall and resentencing because the CDCR identified his now invalid prison prior.

Authority:

PEN 1172.75(b), (c)

Second Holding:

On recall of his sentence, defendant was entitled to a full resentencing that included all aspects of his aggregate sentence. By its plain terms, section 1172.75 requires a full resentencing not merely that the trial court strike the newly invalid enhancements. Section 1172.75(d)(2) specifies that 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.

When a sentence is subject to recall, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. Where there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices. This includes an aggregate prison term, which is not a series of separate, independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Authority:

PEN 1172.75

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

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Walker (2021) 67 Cal.App.5th 198, 206

People v. Coddington (2023) 96 Cal.App.5th 562, 568

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

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Third Holding:

Defendant’s sentence is an aggregate prison term comprised of five separate cases. Even though defendant only referenced the one of the 1995 sentences instead of both of the 1995 sentences, the trial court mistakenly believed it was limited to resentencing defendant on the narrow portion of his sentence that included the prison prior. Defendant’s sentence contains interdependent component parts from multiple cases. Therefore, the court erred by treating the portion of the sentence with the invalid prison prior as an independent, separate term, rather than an integral part of the whole and reconsidering every aspect of the sentencing scheme as required. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the later 1995 aggregate sentence.

Authority:

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 776

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

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

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

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

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

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

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

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878

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

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant 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. The changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

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

People v. Arellano (2024) 16 Cal.5th 457, 468

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

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.

Authority:

PEN 1172.6(c)

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

People v. Patton (2025) 17 Cal.5th 549, 558–559

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, 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.

Authority:

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

Fourth Holding:

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, 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. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

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

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]