Tag Archives: Recall of sentence or resentencing

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

 

Third Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

PEN 1172.6.

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create. As to the objective element,the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Tenth Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883

Abstracts and Minutes, Sentencing, Sixth Amendment

Case: 000373

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed the upper term based on aggravating facts that did not conform with the jury trial requirements under section 1170(b).

First Holding:

The Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the due process clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476

People v. Lynch (2024) 16 Cal.5th 730, 742

Cunningham v. California (2007) 549 U.S. 270, 281

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. Section 1170(b)(3) states that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 742

Third Holding:

In considering a prior conviction, a judge may do no more than determine what crime, with what elements, the defendant was convicted of. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor. The 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1086

Erlinger v. United States (2024) 602 U.S. 82

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. A sentence imposed under section 1170(b)] must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Chapman v. California (1967) 386 U.S. 18

Fifth Holding:

Although the minute order indicates defendant entered into a valid waiver to a jury trial, the reporter’s transcript does not reflect that the trial court advised defendant of his right to a jury trial and did not obtain a valid and informed waiver of that right. The People concede the court erred by not obtaining defendant’s waiver to a jury trial or stipulation to the aggravating facts. We agree that the court erred when it found both aggravating facts true without obtaining defendant’s stipulation or waiver of his right to a jury trial.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169 [defendant’s waiver of the right to jury trial must be expressed in words and will not be implied from a defendant’s conduct]

People v. Washington (1949) 95 Cal.App.2d 454, 458–459 [a defendant’s waiver of the right to jury trial must be personally expressed in open court; an entry in the clerk’s minutes is not enough]

Amelioration, Sentencing

Case: 000372

Posted on by Gary McCurdy

Error and/or relief

It was error to conclude that the defendant was not eligible for resentencing under section 1172.75.. The court, the prosecutor, and the defense attorney all based their arguments and decisions on the understanding that the now-invalid prior prison term had been stricken by the appellate court in a prior appeal for reasons other than those eligible for striking under PEN 1172.75. The parties misunderstood the facts. While it is true that one prior prison term was stricken by the appellate court, there were two prior prison terms, only one of which had been stricken. Thus, when the defendant filed his PEN 1172.75 petition, he was eligible for resentencing, because he was a person described in PEN 1172.75.

First Holding:

(GARY NOTE: I decided to include this victory not so much because of its legal authorities so much as just a reminder of the importance of counsel to actually investigate the case. The parties all seemed to assume that there was one prior prison term, and that it had been stricken as a result of a prior appeal. As it happens, it was stricken because it had been used to enhance the sentence as both a prior serious felony under PC 667 and as a prior prison term under PC 667.5, whereas the law permits it to be used only once, per Jones. But the parties and the trial court missed the fact that the defendant had two prior prison terms, only one of which had been dismissed in the prior appeal.

(In my opinion, that should have been discovered far earlier than on the appeal from the denial of the PC 1172.75 petition because of a misunderstanding of the facts, particularly once the number of prior convictions became an issue when the prosecutor asserted that the defendant was not eligible. I do concede I do not know what occurred in and out of the lower court. But the Court of Appeal, which does not engage in investigation of matters outside the record on appeal, was able to determine the existence of the qualifying prior prison term just by reading the prior opinion from 2016, which states (in part and paraphrased), “The information also alleged that defendant suffered a conviction in case No. xxxxxxx, a serious felony conviction in case No. xxxxxx, and two prison convictions, one in case No. xxxxxxx, and one in case No. xxxxxx (Pen. Code, sec. 667.5(b).”)

Authority:

PEN 1172.75

People v. Jones (1993) 5 Cal.4th 1142, 1150

Second Holding:

It is unclear from the record as originally filed how the section 1172.75 proceedings had been initiated. Section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely by a defendant]

Third Holding:

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. 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

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000370

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the defendant’s second petition for recall of sentence under section 1172.6 as successive, because there were changes in the statutory law between the first and the second. Remanded for the court’s consideration of the second petition.

Holding:

The defendant maintains that changes in statutory and decisional law after the denial of his first resentencing petition dictate that it not be accorded preclusive effect. On the merits, he argues that the jury’s verdict does not conclusively establish he is ineligible for relief as a matter of law. Asserting that his conviction for first degree murder may have been based on the felony murder rule, he contends he has made a prima facie case for relief and is entitled to an evidentiary hearing. The Attorney General appropriately concedes error.

Because there were several applicable changes to the law since the denial of appellant’s first petition, the second petition was not barred under principles of collateral estoppel. These include amendments to the statute limiting reliance on a prior appellate opinion to the procedural history of the case and providing that substantial evidence to support a murder conviction is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Further, caselaw has clarified that at the prima facie stage, a trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

PC 1172.6(d)(3)

People v. Jimenez (2024) 103 Cal.App.5th 994, 1005

People v. Harden (2022) 81 Cal.App.5th 45, 52

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

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case: 000369

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in failing to conduct a full resentencing. The court erred in its calculation of custody credits, both as to postsentence conduct credits and credits for days in actual custody. The abstract of judgment should be corrected to reflect the oral pronouncement of judgment as to the restitution fines and the victim restitution order.

First Holding:

When a defendant is convicted of an offense, a sentencing court has a duty to render judgment and impose the penalty authorized by law. Judgment is rendered when the trial court orally pronounces sentence. In rendering the judgment, the court must pronounce sentence on each count for which the defendant sustained a conviction. The failure to pronounce a sentence for each conviction results in an unauthorized sentence that can be corrected at any time.

Authority:

PEN 12

People v. Martinez (2015) 240 Cal.App.4th 1006, 1012

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

Second Holding:

At the resentencing hearing following our remand in the earlier appeal, the trial court addressed only the errors we identified in our opinion. Our remand order was not so limited. It was for a full resentencing.

Authority:

People v. Smith (1985) 166 Cal.App.3d 1003, 1008, abrogated on another ground by People v. Bullock (1994) 26 Cal.App.4th 985

Third Holding:

The trial court’s statements suggest a fundamental misunderstanding of the effect of our order vacating the defendant’s sentence and remanding for a full sentencing, which was the nullification of the previous sentence. Because the prior sentence no longer existed, the court had to construct an entirely new sentence. By failing to orally pronounce a sentence on the nine counts for which it stayed the sentences at the original sentencing, the court failed to render judgment on all of the defendant’s convictions, resulting in an unauthorized sentence. When the trial court stated it was excluding counts it had previously stayed under section 654, the trial court used the term concurrent in connection with section 654. But where section 654 applies, it precludes any multiple punishment, consecutive or concurrent.

Authority:

People v. Rouse (2016) 245 Cal.App.4th 292, 297

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Deloza (1998) 18 Cal.4th 585, 594

Fourth Holding:

Generally, when an unauthorized sentence is discovered on appeal, a reviewing court affirms the defendant’s conviction and remands the case for the trial court to pronounce a sentence consistent with the verdict.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Fifth Holding:

Our order for a full resentencing necessarily encompasses calculating the defendant’s custody credits and the appropriate assessments, fines, and restitution awards. When it resentenced the defendant, the trial court was required to credit her with all actual days she had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

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

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

A trial court is required to include all aspects of a judgment in its oral pronouncement. That includes fines and direct victim restitution. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. Upon a defendant’s request, the trial court must hold a hearing on the defendant’s ability to pay before imposing ancillary costs, like the court operations assessment (sec. 1465.8(a)(1)) and the court facilities assessment (Gov. Code, sec. 70373).

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

People v. Rowland (1997) 51 Cal.App.4th 1745, 1751

People v. Kopp (2025) 19 Cal.5th 1