Tag Archives: Recall of sentence or resentencing

Immigration, Sentencing, Standard of review

Case: 000422

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s motion to vacate his guilty plea under section 1473.7. We reverse the judgment. The superior court shall enter an order vacating the defendant’s conviction pursuant to Penal Code section 1473.7(a)(1).

First Holding:

Penal Code section 1473.7 allows those no longer in custody to vacate a conviction if it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction.

Authority:

PEN 1473(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

The superior court denied the defendant’s motion. It concluded that the defendant’s prosecution had no adverse immigration consequences because the charge he pleaded to did not name cocaine as the controlled substance. It also concluded that because he had completed the Deferred Entry of Judgment (DEJ) arrangement and achieved a dismissal, there was no conviction left to vacate. The court erred. In fact, a DEJ disposition can result in adverse immigration consequences.

Authority:

PC 1203.43

Third Holding:

We apply independent review when the record indicates there was no evidentiary hearing.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Fourth Holding:

A conviction of Health and Safety Code section 11350 involving cocaine can have adverse immigration consequences. And in federal immigration tribunals and the Ninth Circuit, a police report forming the factual basis of a plea can furnish details, otherwise missing from charging documents, that allow the imposition of adverse immigration consequences.

Authority:

Lazo v. Wilkinson (9th Cir. 2021) 989 F.3d 705, 714

Matter of Milian-Dubon (B.I.A. 2010) 25 I. & N. Dec. 197, 201,

United States v. Almazan-Becerra (9th Cir. 2008) 537 F.3d 1094, 1097–1100

Suazo Perez v. Mukasey (9th Cir. 2008) 512 F.3d 1222, 1226

In re Sanudo (B.I.A. 2006) 23 I. & N. Dec. 968, 975,

Parrilla v. Gonzales (9th Cir. 2005) 414 F.3d 1038, 1044

United States v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 939–940

Fifth Holding:

Under the totality of circumstances in this conceded case, we agree with the parties that the misinformation the defendant received regarding his plea was prejudicial and that reversal to ensure prompt relief under Penal Code section 1473.7(a)(1), rather than remand, is appropriate.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321, 325–326

People v. Martinez (2013) 57 Cal.4th 555, 559

Immigration, Sentencing, Standard of review

Case: 000421

Posted on by Gary McCurdy

Error and/or relief

The superior court denied the defendant’s motion to vacate his conviction under section 1473.7 because he did not provide a declaration from his defense counsel at the time of his plea or his counsel’s case file, despite the defendant’s diligent efforts in attempting to contact his prior counsel, who had retired since representing him. After independent review, we conclude the defendant met his burden of establishing, by a preponderance of the evidence, error affecting his ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of his plea and reverse the denial of his motion.

First Holding:

Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. This includes an offense under section 273.5(a). A section 273.5 conviction is also a crime of violence under federal immigration law. If a defendant is sentenced to a term of imprisonment of at least 365 days for a crime of violence, the offense qualifies as an aggravated felony conviction. This designation carries even harsher consequences. A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. An aggravated felony conviction renders a noncitizen ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for a noncitizen found to have an aggravated felony conviction, no matter how long he has previously resided here.

Authority:

8 U.S.C. sec. 1227(a)(2)(E)(i)

8 U.S.C. sec 1227(a)(2)(A)(iii)

8 U.S.C. sec. 1228(c)

8 U.S.C. sec.1229b(a)(3), (b)(1)(C)

18 U.S.C. sec. 16(a)

People v. Villalba (2023) 89 Cal.App.5th 659, 666-667

People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904

Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083

Second Holding:

Penal Code section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. To establish a prejudicial error under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

People v. Mejia (2019) 36 Cal.App.5th 859, 862

Third Holding:

The focus of the first prong of the inquiry is on the defendant’s own error in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. There is no additional need to establish the petitioner’s mistake was caused by some third party. A defendant may show, but is not required to show, that he received ineffective assistance of counsel. The error supporting section 1473.7 relief need not be one made by defense counsel or the court but may be one made by the moving party herself if supported by contemporaneous evidence.

Authority:

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

People v. Lopez (2022) 83 Cal.App.5th 698, 713-714 [At the heart of the prejudicial error analysis is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken]

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Carrillo (2024) 101 Cal.App.5th 1, 16

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067

People v. Camacho (2019) 32 Cal.App.5th 998, 1008 [ineffective assistance of counsel not required for relief]

People v. Rodriguez (2021) 68 Cal.App.5th 301, 311

Fourth Holding:

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel or to submit contemporaneous documentation from the time of the plea. Rather, the inquiry under section 1473.7 requires consideration of the totality of the circumstances, which necessarily involves case-by-case examination of the record, and no specific kind of evidence is a prerequisite to relief. Even a court’s advisement that a guilty plea will result in immigration consequences does not preclude a petitioner from demonstrating that he did not meaningfully understand the immigration consequences of his plea. Depending on the surrounding circumstances, even a warning that deportation will result is not a categorical bar to relief. A general advisement under section 1016.5 does not establish meaningful understanding of immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320, 325

People v. Curiel (2023) 92 Cal.App.5th 1160, 1175

People v. Lopez (2021) 66 Cal.App.5th 561, 577

People v. Padron (2025) 109 Cal.App.5th 950, 962

People v. Camacho (2019) 32 Cal.App.5th 998, 1011 [petitioner may present sufficient evidence of his lack of understanding such that the court’s advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding adverse immigration consequences]

Fifth Holding:

As to the prejudice prong, a defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences and must corroborate any assertions with objective evidence. A reasonable probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311,

People v. Vivar (2021) 11 Cal.5th 510, 530

People v. Lopez (2022) 83 Cal.App.5th 698, 714

People v. Padron (2025) 109 Cal.App.5th 950, 959

People v. Soto (2022) 79 Cal.App.5th 602, 610

Sixth Holding:

We independently review the denial of a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. If the superior court heard testimony, we give particular deference to any factual findings based on the trial court’s personal observations of witnesses. But where, as here, the facts derive entirely from written declarations and other documents, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, the trial court and this court are in the same position in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 527-528

People v. Padron (2025) 109 Cal.App.5th 950, 959

Amelioration, Sentencing

Case: 000420

Posted on by Gary McCurdy

Error and/or relief

When a defendant is elgible for resentencing under section 1172.75, the court must sentence under current law, including ameliorative provisions enacted since the original sentence, including the Three Strikes Reform Act of 2012.

First Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Second Holding:

Given Penal Code section 1170.126(k) [“Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant”], the voters for the Three Strikes Reform Act of 2012 did not intend for the Reform Act petition process to be the sole avenue for defendants sentenced to an indeterminate term of imprisonment under the original Three Strikes law to seek resentencing relief. Rather, third strike defendants can also seek relief through the separate vehicle of section 1172.75 resentencing. Those defendants are nonetheless subject to the substantive requirements of section 1170.126, including its discretionary public safety override, but need not comply with the ancillary procedural requirements of that statute. They must instead fulfill the separate procedural requirements of the section 1172.75 resentencing mechanism.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 858, 861-862, 865, 869-870

Amelioration, Sentencing

Case: 000416

Posted on by Gary McCurdy

Error and/or relief

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6. We affirm the denial but remand to give the defendant the opportunity file an amended petition.

First Holding:

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6.

Authority:

PEN 1172.6

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

Second Holding:

Hearsay testimony by a police officer at a preliminary hearing could support a trial court’s finding that the petitioner did not make a prima facie case under section 1172.6.

Authority:

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

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

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

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

Fourth Holding:

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides that 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. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205