Tag Archives: Recall of sentence or resentencing

Amelioration, Discretion, Sentencing

Case 000460

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for resentencing under section 1172.75 with directions that the court determine whether reduction of his Three Strikes sentence under the Three Strikes Reform Act of 2012 is appropriate.

First Holding:

Generally, a trial court’s discretionary decision whether to dismiss or strike a sentencing allegation or enhancement is reviewed for an abuse of discretion. The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. However, a trial court’s discretion must be guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.

Additionally, an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court that misunderstands the scope of its sentencing discretion cannot be said to have properly exercised that discretion. In such circumstances, the appropriate remedy is to remand for resentencing unless the record clearly indicates the court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373, 376

People v. Williams (1998) 17 Cal.4th 148, 159

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977

Paterno v. State of California (1999) 74 Cal.App.4th 68, 85

People v. Marquez (1983) 143 Cal.App.3d 797, 803

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

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

Second Holding:

Under the original Three Strikes law, a defendant with two or more prior serious or violent felony convictions would be sentenced to a life term for a current felony conviction even if the current conviction was not a serious or violent felony.

In 2012, the Reform Act was enacted under Proposition 36, amending the law to reduce the punishment prescribed for certain Three Strikes offenders. Under the Reform Act, a defendant with two or more prior serious or violent felony convictions, whose current conviction is for a nonserious or nonviolent felony, receives a doubled sentence rather than a life sentence, unless certain disqualifying factors were proven. If the petitioner satisfied the criteria for resentencing, the petitioner was resentenced as a second strike offender with a doubled term, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

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

Third Holding:

Effective January 1, 2020, SB 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to prior terms for sexually violent offenses. Effective January 1, 2022, SB 483 codified section 1172.75, which set forth the resentencing procedure, and applied retroactively to persons currently serving a term for a judgment that includes such prison priors. Where a now invalid enhancement was imposed, the court shall recall the sentence and resentence the defendant. The statute directs that the resentencing 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.

Authority:

PEN 1172.75

PEN 667.5(b)

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

Fourth Holding:

Permitting recall and resentencing of indeterminate sentences in a section 1172.75 hearing does not unconstitutionally amend section 1170.126. First, section 1170.126(k) permits resentencing of defendants subject to section 1170.126 by some alternative means and is, therefore, not the exclusive remedy for nonserious, nonviolent Three Strikes offenders. Under section 1170.126(k) defendants entitled to seek relief under section 1170.126 may access rights or remedies otherwise available. Permitting recall and resentencing of Three Strikes indeterminate sentences under section 1172.75 does not unconstitutionally amend section 1170.126 but rather, incorporates the public safety determination requirements of section 1170.126 into the resentencing process.

When a Three Strikes defendant is resentenced under section 1172.75, the trial court must determine whether resentencing them on their Three Strikes sentences under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. Accordingly, we must remand the case to the trial court for its determination on whether resentencing defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If so, the court shall reimpose the indeterminate term. If defendant does not, and he is otherwise eligible under the Reform Act, the court shall resentence the defendant under the revised provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 855, 858-861, 863, 869, 878

Fines and fees, Sentencing

Case 000456

Posted on by Gary McCurdy

Error and/or relief

After ten years, the unpaid balance of any restitution fines are no longer collectible and the restitution order must be vacated.

First Holding:

Section 1202.4(b) mandates that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. Section 1465.9 was amended effective January 1, 2025, to add subdivision (d) which requires that, on the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1202.4(b)

PEN 1465.9

Second Holding:

The trial court’s reimposition of the fine at resentencing in 2025 did not restart the 10-year clock.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted Mar. 11, 2026, S295038 on a different issue

Abstracts and Minutes, Amelioration, Sentencing

Case 000451

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of resentencing relief pursuant to Penal Code section 1172.75. He contends, and the People agree, the resentencing court erroneously relied on a previously stricken enhancement for a sexually violent offense, as well as an unalleged prior conviction for a sexually violent offense in finding defendant ineligible for resentencing. The record establishes error. We therefore reverse and remand.

First Holding:

The trial court erroneously relied on prior felony convictions to determine that the defendant was not eligible for relief under section 1172.75, because those prior convictions had previously been stricken in the appeal from the original judgment, leaving no disqualifying prior convictions in place. Section 1172.75(a) invalidates 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.

However, a stricken enhancement cannot be a sentence enhancement that was imposed under section 1172.75(a). As noted, this court previously struck the otherwise-disqualifying section 667.5(b) enhancement stemming from defendant’s 1981 conviction. As such, it may not serve as the basis for denying resentencing relief under section 1172.75.

Authority:

PEN 667.5(b)

People v. Green (2024) 104 Cal.App.5th 365, 370

People v. Tang (2025) 109 Cal.App.5th 1003, 1007

Second Holding:

More than 30 years ago, defendant was convicted of both a disqualifying felony and robbery. However, for purposes of the current case, the prosecution only alleged a prior prison term enhancement for the 1990 robbery, not the disqualifying felony. The allegation was found true and the enhancement for the prior prison term stemming from the robbery was imposed. Because the enhancement was for robbery, the section 667.5(b) enhancement that became part of defendant’s sentence was not imposed for his conviction of a disqualifying offense as required by the plain terms of section 1172.75. Because a one-year prior prison term enhancement was not alleged, proved, or imposed for the 1990 conviction of an otherwise-disqualifying offense, it may not be used to deny defendant resentencing relief pursuant to section 1172.75.

Authority:

People v. Green (2024) 104 Cal.App.5th 365, 371

Third Holding:

In the appeal from the original judgment more than a decade ago, this court ordered defendant’s judgment modified to strike 10 of his 15 prior prison term enhancements and ordered the abstract of judgment amended to reflect the change. An amended abstract of judgment filed after the conclusion of that appeal reflected just such a change.

During the resentencing proceedings in the superior court in 2025, the court also addressed a motion by defendant to vacate his remaining restitution fines. The court granted defendant’s request pursuant to section 1465.9(b) and ordered the abstract of judgment amended. A new abstract of judgment issued in July 2025 reflected the change to defendant’s restitution; however, it also listed eight of the 10 previously stricken prior prison term enhancements. This is a clerical error. The abstract of judgment should list imposition of five 1-year enhancements—one on each count—for defendant’s prior prison term served in connection with his med-2000s petty theft conviction.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time]

Amelioration, Duty of the court, Sentencing, Sixth Amendment

Case 000450

Posted on by Gary McCurdy

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including 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

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

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

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

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

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

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

People v. Cutting (2019) 42 Cal.App.5th 344, 348