Tag Archives: Recall of sentence or resentencing

Amelioration, Plea bargains, Sentencing

Case: 000282

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed an upper term sentence without an appropriate factual finding or stipulation as to an aggravating factor, as required by Penal Code section 1170(b). We conclude that the defendant may raise this issue even though he stipulated to the sentence as part of a plea bargain.

First Holding:

When the defendant entered his plea in 2020, the choice to impose a lower, middle, or upper term sentence was committed to the sound discretion of the court. But when the court ultimately entered judgment in 2024, following the passage of SB 567, a trial court was permitted to impose an upper term sentence only when aggravating 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. The defendant argues that, although he agreed to the sentence in his plea agreement, the change in the law renders his agreement to an upper term sentence invalid in the absence of an appropriate finding of or stipulation to aggravating circumstances. The circumstances in French differ from those here in potentially meaningful ways. Nonetheless, in light of the significant uncertainty in this area and the potential Sixth Amendment implications, we deem it appropriate to exercise our discretion to reach the merits of the defendant’s arguments.

Authority:

PEN 1170

People v. French (2008) 43 Cal.4th 36 [defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances]

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326–327 [exercising discretion to forgive forfeiture because the application of amended section 1170, subdivision (b) implicates a constitutional right, as recognized in People v. Lynch (2024) 16 Cal.5th 730]

Second Holding:

With respect to the merits, the People argue that because the defendant agreed to a specific term of imprisonment as part of his plea bargain, section 1170(b)’s sentencing procedures are irrelevant. As we have noted, this issue has been addressed in multiple Court of Appeal decisions and is now before the Supreme Court. We therefore dispense with offering significant additional analysis, except to say we are persuaded by the logic of the courts that have allowed defendants subject to stipulated sentences to seek the benefits of Senate Bill 567. Among other things, we think this best comports with Stamps, which is the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence.

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted February 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted April 26, 2023, S279154 [same]

People v. Stamps (2020) 9 Cal.5th 685

Third Holding:

In keeping with Stamps, if the defendant waives the requirements of amended section 1170(b), the trial court shall reinstate his original sentence. If he invokes the requirements of section 1170(b), he must state whether he stipulates to the facts underlying an aggravating circumstance justifying the imposition of the upper term on count 1 and the enhancement, or whether he desires a jury or bench trial on any aggravating circumstances alleged by the People. If he stipulates to the facts underlying an aggravating circumstance justifying the upper-term sentence, the trial court shall find that the upper term may be imposed on count 1. If he requests a trial, the People will have the burden proving beyond a reasonable doubt the truth of any alleged aggravating circumstance justifying the imposition of the upper term. If the factfinder finds an aggravating circumstance true, and the trial court determines the upper term can be imposed on count 1, the court shall reinstate the original sentence. If the People fail to prove the truth of an aggravating circumstance, the trial court shall find that the sentence on count 1 cannot exceed the middle term. At that point, if the court does not approve of the plea agreement with the reduced sentence or if the People do not agree to the reduced sentence, the court shall vacate the plea in toto and return the parties to their status quo ante.

Authority:

People v. Stamps (2020) 9 Cal.5th 685

(Gary note: Is Stamps still good law? Effective 1/1/2025, section 1171 was enacted to give courts guides on how to handle various amerliorative statutes. Take a look at 1171(c)(3) in this partial rendition of section 1171 (bold and italics by me):

(Penal Code section 1171[(a) For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
(…
((c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
(…
((e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
((f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.)

Amelioration, Sentencing

Case: 000278

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because his prior prison term enhancements were not executed. This was error.

Holding:

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:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000277

Posted on by Gary McCurdy

Error and/or relief

AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.

First Holding:

AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Burgos (2024) 16 Cal.5th 1, 25

In re Estrada (1965) 63 Cal.2d 740

People v. Lopez (2025) 17 Cal.5th 388, 395–396

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

People v. Sek (2022) 74 Cal.App.5th 664, 667

Sentencing, Standard of review

Case: 000274

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the section 1172.6 petition for recall of sentence based on its conclusion that the defendant was ineligible for relief because there was substantial evidence that he was convicted on a still-valid theory of murder.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of section 190.2—that is, the statute defining the felony-murder special circumstance.

Authority:

SB 1437

PC 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 967

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

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

The trial court used an incorrect legal standard to deny the petition at the prima facie stage. The court erred by applying the substantial evidence standard in concluding defendant was ineligible for relief. The statute does not permit a court to deny a petition at the prima facie stage based on a determination that substantial evidence shows defendant is ineligible for relief. Instead, at this stage, the defendant need only make a prima facie case for relief. In this inquiry, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971

Third Holding:

Should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing.

Authority:

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

Amelioration, Jurisdiction, Sentencing

Case: 000270

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for resentencing under section 1172.75. While review was still pending in the Supreme Court following the defendant’s appeal of his conviction, the trial court assumed jurisdiction and struck the prior prison term enhancement as directed by the Court of Appeal’s opiniion. More than a year later, the Calfiornia Department of Corrections and Rehabiltation advised that the defendant was on its list of inmates entitled to have their now-invalid prior prison term enhancements stricken. The court recalled the sentence under section 1172.75, but ultimately after the trial court discovered that it had already dismissed the now-invalid enhancement for a prior prison term, it concluded that the defendant was not eligible for resentencing. However, the trial court had no jurisdiction to strike the enhancement while the appeal was pending review in the Supreme Court.

First Holding:

Subject to limited exceptions, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Scarbrough (2015) 240 Cal.App.4th 916, 923

Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10

People v. Cunningham (2001) 25 Cal.4th 926, 1044

In re Lukasik (1951) 108 Cal.App.2d 438, 443

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

Because the trial court was without subject matter jurisdiction to strike the sentencing enhancements when it did [while the matter was still on appeal], the court’s order is void and vulnerable to direct or collateral attack at any time. Because the order striking the prior conviction enhancement is void, the only judgment that applied to defendant’s case was the original judgment that included the section 667.5 enhancement. The court therefore erred when it declined to resentence defendant by striking the section 667.5 enhancement during a new resentencing hearing.

Authority:

PEN 1172.75(c), (d)(1), (d)(2)

People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660

People v. Vasilyan (2009) 174 Cal.App.4th 443, 450

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