Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)

Amelioration, Sentencing

Case: 000366

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by: (1) refusing to strike a prior serious felony enhancement attached to the defendant’s conviction for one count of possession of a firearm after an associated gang enhancement was dismissed; and (2) maintaining an indeterminate sentence on that same count. Accordingly, we will vacate the sentence for that count, strike one of the associated serious felony enhancements, and remand for resentencing consistent with Penal Code section 667(e)(1).

First Holding:

The defendant was sentenced to a Three Strikes indeterminate sentence and the sentence was enhanced for a prior serious felony conviction. During the appeal from that conviction, AB 333 was enacted to change the elements of section 186.22 regarding the crime and enhancements for gang criminal activity. As a result of the opinion in Valencia we reversed the conviction for violation of section 186.22 in count 5, and the jury’s finding that defendant committed the attempted shooting at an occupied vehicle (count 1) and possessed a firearm (count 7) for the benefit of a criminal street gang.

We remanded to give the prosecution an opportunity to retry count 5 and the gang enhancement allegations on counts 1 and 7 under amended section 186.22. The trial court granted the prosecution’s motion to dismiss count 5 and the gang enhancement allegations as to counts 1 and 7. The court denied the defendant’s request to sentence the defendant to a determinate term and rejected his argument that the basis of the count 7’s status as serious felony had been undermined by AB 333, and it was no longer a serious felony to support either the five-year enhancement for his prior serious felony or as a third strike. The court erred. Count 7 was only considered a serious felony by reason of the jury’s true finding on the gang enhancement. With the gang enhancement out of the picture, count 7 could no longer be considered a serious felony.

Authority:

PEN 186.22

PEN 667

PEN 1192.7(c)(28)

People v. Valencia (2021) 11 Cal.5th 818

Second Holding:

Count 7 was only a serious felony by reason of the gang enhancement, which had been stricken. Therefore, he was not convicted in the current case of a third strike, and was subject to only a doubling of his sentence, not a life term.

Authority:

PEN 667

Amelioration, Elements of crime, Sentencing

Case: 000362

Posted on by Gary McCurdy

Error and/or relief

The record of conviction does not show as a matter of law that defendant is ineligible for resentencing under section 1172.6 on his murder and attempted murder convictions. The jury was instructed on the natural and probable consequence doctrine, and the record does not show the jury necessarily found all elements of murder and attempted murder under current law. We therefore reverse the trial court’s order denying defendant’s petition.

First Holding:

SB 1437, effective in 2019, the Legislature amended sections 188 and 189 of the Penal Code to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and to limit the scope of the felony-murder rule. Amended section 188 provides that except as stated in the amended section 189 governing felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The bill also added what is now section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Relief is potentially available for a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter .

Authority:

SB 1437

PEN 1172.6

People v. Lee (2023) 95 Cal.App.5th 1164, 1173

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

Second Holding:

The section 1172.6 petitioning process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 . If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. A defendant who petitions for resentencing under section 1172.6 is ineligible for resentencing only if the record conclusively establishes every element of the offense. In making that determination a court may give effect to a jury’s factual finding. If the petition survives the prima facie stage, the court must hold an evidentiary hearing at which the People bear the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by SB 1437.

Authority:

PEN 1172.6.

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Third Holding:

Under the jury instructions given at defendant’s trial, the defendant could have been found guilty even if not the slayer, because there was a second person who was the slayer. Additionally, the finding defendant personally discharged a firearm and proximately caused great bodily injury and death does not establish the defendant intended to kill or was aware of the danger to life that his act posed. In sum, the jury verdict does not show as a matter of law defendant harbored malice aforethought. Under the trial court’s instructions, the jury could instead have concluded defendant aided and abetted an assault with a firearm the natural and probable consequences of which was murder. Thus, the entire record of conviction does not foreclose that defendant was convicted based on a now invalid theory of murder.

Authority:

People v. Offley (2020) 48 Cal.App.5th 588, 598

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Fourth Holding:

Under current law, attempted murder requires intent to kill. We cannot conclude, as a matter of law, that the record of conviction shows defendant harbored intent to kill. The jury finding that the attempted murder was committed willfully and with premeditation and deliberation shows only that the slayer harbored this mental state. The jury does not further identify the slayer. Additionally, the fact defendant intended to discharge a firearm does not show the defendant harbored a particular mental state.

Authority:

People v. Morales (2024) 102 Cal.App.5th 1120, 1132

People v. Offley (2020) 48 Cal.App.5th 588, 598 [explaining that section 12022.53(d) provides that the defendant must have intended to discharge a firearm, but does not refer to an intent to achieve any additional consequence.]

Amelioration, Discretion, Sentencing

Case: 000361

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him on one of his nonserious felony counts under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life on that count to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

As a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. The case must be remanded for the superior court to determine whether sentencing the defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it is so determined, the superior court must reimpose the indeterminate term. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Second Holding:

The superior court did not have the benefit of Guevara, meaning that it was not fully aware of the scope of its discretionary powers when it resentenced the defendant. We remand for resentencing because the record does not clearly indicate that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

Amelioration, Retroactivity, Sentencing

Case: 000360

Posted on by Gary McCurdy

Error and/or relief

After the trial court denied the defendant’s request at the section 1172.75 resentencing hearing to resentence him under the Three Strikes Reform Act of 2012 (thus reducing his Three Strikes sentence of 25 years to life to a doubled determinate term), the Supreme Court concluded that the Reform Act does apply, subject to the finding of unreasonable risk to public safety. The matter is remanded for resentencing consideration accordingly.

First Holding:

Section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. Because section 1172.75 and section 1170.126, thus interpreted, operate harmoniously, the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75.

Authority:

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

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:

Construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing maintains the integrity of both statutes, such that the two may stand together. The legislative history suggests the voters understood that where a court conducting a resentencing inquiry for Third Strike defendants serving an indeterminate term found relief would pose an unreasonable risk of danger to public safety, the defendant would not be entitled to resentencing. Interpreting section 1172.75 as incorporating the discretionary public safety determination of section 1170.126 would honor this concern and thus eliminate constitutional doubt.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865-866

Fourth Holding:

In exercising this discretion, the voters established that the resentencing court may consider: (1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) The petitioner’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:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 866, fn. 9

Fifth Holding:

The resentencing court is not bound by the prior dangerousness determination associated with the defendant’s section 1170.126 petition. Rather, section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety’ as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17