Tag Archives: Recall of sentence or resentencing

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000330

Posted on by Gary McCurdy

Error and/or relief

On this appeal from denial of the defendant’s petition under section 1172.6 at the prima facie stage, where the petition consisted of a check-box form, we remand with instructions for the trial court to consider any amended allegations filed by the defendant within 30 days of remand.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. As part of this reform, the Legislature amended section 188 to prohibit imputing malice based solely on a defendant’s participation in a crime. In effect, a defendant can no longer be convicted of murder under an aiding and abetting theory merely because a killing was a natural and probable consequence of another intended offense.

Authority:

PEN 188

People v. Arellano (2024) 16 Cal.5th 457, 472

People v. Gentile (2020) 10 Cal.5th 830, 839

Second Holding:

To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory of imputed malice to petition the sentencing court to vacate the conviction and seek resentencing.

Authority:

PEN 1172.6(a)

Third Holding:

Once the court receives such a petition, the section 1172.6 process unfolds in three distinct stages. At the first stage, a petitioner need only submit a facially sufficient petition that alleges the statutory prerequisites for relief. If the petition is facially valid, the petitioner is entitled to the appointment of counsel, if requested, and the matter proceeds to the second stage. At the second stage, the trial court must determine whether the petitioner has made a prima facie showing of eligibility for relief. If the court finds the petitioners have met their burden of establishing a prima facie case, the court must then issue an order to show cause and proceed to the third stage: an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioners remain guilty under current law.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 562

Fourth Holding:

Patton makes clear that at the second stage a trial court may consider uncontroverted facts from the record of conviction. This includes an evaluation of preliminary hearing evidence to determine whether a still-valid theory of liability supported the conviction. However, Patton also teaches that at the second stage petitioners have the opportunity to show why they are not ineligible, despite what might appear in preliminary hearing transcripts. To meet the burden of establishing a prima facie case for relief, the petitioner must provide nonconclusory allegations that alert the court and prosecution to the issues to be decided at the evidentiary hearing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

Amelioration, Sentencing, Standard of review

Case: 000319

Posted on by Gary McCurdy

Error and/or relief

Summary denial of of the defendant’s 1172.6 petition without an evidentiary hearing was error where the jury had been given instructions that permitted it to find defendant guilty of murder under the felony murder rule or under the natural and probable consequences doctrine, and allowed it to find him guilty of attempted murder under the natural and probable consequences doctrine.

First Holding:

In 2018, the Legislature passed SB 1437 that amended sections 188 and 189 to significantly limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder as it applies to aiding and abetting. The bill also added section 1172.6 to provide a procedural mechanism for defendants who could no longer be convicted of murder because of the amendments to petition for retroactive relief. The Legislature later amended section 1172.6 effective January 1, 2022, to provide resentencing relief to defendants convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

SB 1437

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Rodriguez (2024) 103 Cal.App.5th 451, 457

Second Holding:

Section 189 as amended effective January 1, 2019, provides that a participant in the perpetration of a robbery or kidnapping (or attempted perpetration of those crimes) in which a death occurs is liable for first degree murder only if it is proven that the participant was the either (i) the actual killer; (ii) 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 the first degree murder; or, (iii) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

Third Holding:

Upon receipt of a petition that sets forth the required allegations, the trial court must conduct a prima facie analysis and hearing to determine the defendant’s eligibility for relief. Although the court should not reject the petition’s factual allegations without first conducting an evidentiary hearing, it may make a credibility determination adverse to the defendant if the court’s own documents refute those allegations.

Authority:

PEN 1172.6(b)(3) and (c)

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lewis (2021) 11 Cal.5th 952, 960

Fourth Holding:

We review de novo the trial court’s denial of a section 1172.6 petition at the prima facie stage.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 545

Fifth Holding:

It appears the trial court found that giving instructions that allowed the jury to find defendant guilty of murder based on theories of liability that had been abrogated by SB 1437 was harmless because the jury also received instructions on the still valid theories of being a major participant who aided and abetted with an intent to kill or acted with reckless indifference to human life. The difficulty here, however, is defendant was convicted in 2012, well before Banks clarified the law concerning major participant findings by identifying a series of considerations to assist in the inquiry whether a defendant is a major participant. Clark reiterated the Banks elements and substantially clarified the considerations relevant to determining whether a defendant acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 798-804

People v. Clark (2016) 63 Cal.4th 522, 611-623

Sixth Holding:

Unless a felony murder defendant was tried after Banks, a major participant finding will not defeat an otherwise valid prima facie case for section 1172.6 resentencing relief and, unless a defendant was tried after Clark, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case for such relief. Because defendant was convicted before Banks and Clark, the special circumstance findings that he was a major participant who acted with reckless indifference to human life do not preclude him from establishing a prima facie case for resentencing relief.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 721

Amelioration, Duty of the court, Sentencing

Case: 000316

Posted on by Gary McCurdy

Error and/or relief

We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591

Sentencing, Sixth Amendment, Standard of review

Case: 000314

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances 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. Notwithstanding this rule, a 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

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

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

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]

Eighth Amendment, Juveniles, Sentencing

Case 000313

Posted on by Gary McCurdy

Error and/or relief

Tried as an adult for murder in 2008, the defendant was sentenced to 47 years to life in prison. The trial court denied his recently filed (2024) motion for resentencing under section 1170(d), believing the defendant was categorically ineligible for resentencing because he did not receive an actual LWOP sentence and the 47 years to life sentence he did receive was not long enough to qualify as the functional equivalent of LWOP. We hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.

Authority:

PEN 1170(d)

Second Holding:

We conclude that defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, are eligible for section 1170(d) relief.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608 [GARY NOTE: 23 years plus 80 years to life]

People v. Sorto (2024) 104 Cal.App.5th 435 [GARY NOTE: 10 years plus 130 years to life]

People v. Contreras (2018) 4 Cal.5th 349, 356, 369 [holding sentences of 50 and 58 years to life imposed on two defendants who were 16 years old at the time of their kidnapping and sex offenses were functionally equivalent to LWOP and violated the Eighth Amendment]

Third Holding:

While the trial court rightly identified the line drawing problems this question raises given the current state of the law, lines must still be drawn. They need not be drawn entirely in the abstract, however. Instead, guided by our consideration of defendant’s history and prospects—and by our Supreme Court’s observation that a sentence must give a juvenile “a realistic hope of release and a genuine opportunity to reintegrate into society” to be constitutional (Contreras, supra, 4 Cal.5th at 373)—we hold defendant is serving a sentence that is the functional equivalent of LWOP and among those who are not categorically ineligible for relief under section 1170(d).

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 373

Fourth Holding:

This question is pending in the Supreme Court. Acknowledging our Supreme Court will have the final word, we hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828