Tag Archives: Recall of sentence or resentencing

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

Case 000831

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have recalculated the defendant’s custody credits. Further, the abstract of judgment erroneously indicates that the court reimposed the restitution fine and suspended it. In fact, the court did not reimpose the fine, and thus this is clerical error that must be corrected.

First Holding:

The abstract of judgment erroneously includes a restitution fine. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

In fact, the trial court did not reimpose the restitution fine, so this appears to have been a clerical error. Therefore, we remand so the court may correct the abstract of judgment.

(Gary note: The court did not cite any authority for its order directing correction, but there are many cases the court could have relied on. I have set forth several below the Penal Code section in the Authority section below.)

Authority:

PEN 1465.9(d)

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

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

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

There was an error in calculating the defendant’s days of custody credit. Remanded for the court to calculate the correct number of days.

(Gary note: Again, the court cited no authority for this obvious solution, so I have set forth a few below.)

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Amelioration, Sentencing

Case 000822

Posted on by Gary McCurdy

Error and/or relief

On the defendant’s resentencing hearing under section 1172.75, the court erroneously denied the defendant’s petition, concluding that he was not eligible because the now-invalid enhancement for a prior prison term had been imposed but stayed.

Holding:

While this appeal was pending, the Supreme Court issued its opinion in Rhodius, in which it held that a person whose sentence included a now-invalid enhancement for a prior prison term is eligible for resentencing under section 1172.75, even if the enhancement was stayed at the initial sentencing.

Authority:

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

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

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

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law.

Authority:

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

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

Amelioration, Sentencing, Vicarious liability

Case 000802

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction did not establish the defendant was ineligible for relief as a matter of law, we reverse and remand for the trial court to set an evidentiary hearing under section 1172.6(d).

First Holding:

In 2019, the legislature enacted SB 1437, which amended the state’s murder laws to ensure culpability was commensurate with liability. The legislature later expanded its amendments with SB 775. SB 775 allowed defendants to seek resentencing if their convictions rested on any theory under which malice is imputed to a person based solely on that person’s participation in a crime, and they could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

To seek such relief, a defendant must file a petition under what is now section 1172.6. If petitioners make a prima facie showing that they are eligible for relief, the trial court must set an evidentiary hearing. If the record of conviction shows that the petitioner is ineligible for relief as a matter of law, the court may deny the petition at the prima facie stage.

Authority:

PEN 1172.6

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

Second Holding:

Because the trial court was incorrect there was no theory presented to the jury under which malice could have been imputed, we reverse.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257

Third Holding:

In Maldonado, the court traced how a defendant could be convicted of first degree murder without a requirement that the jury find the defendant harbored malice. It noted that CALCRIM No. 401 only requires an intent to aid and abet a crime. In the murder context, this instruction can muddy the waters because the crime is not necessarily the act that caused the death or may not be an act that would require a conscious disregard of human life.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1264-1268

People v. Langi (2022) 73 Cal.App.5th 972

Fourth Holding:

Whether instructional error could have been raised on direct appeal is immaterial to the section 1172.6 analysis.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 649

Appellate Principles, Effective assistance of counsel, Pleading, Sentencing

Case 000795

Posted on by Gary McCurdy

Error and/or relief

The court erroneously imposed a 10-year upper term firearm enhancement, although the jury was not asked to consider, and did not render a finding, that defendant personally used a firearm in the commission of the murder. The 10-year firearm enhancement is unauthorized. We therefore strike the enhancement and affirm the judgment as modified.

Holding:

The personal firearm use allegation under section 12022.5(a), was pled only as to the codefendant. No firearm allegation was alleged as to defendant under any statute. Nevertheless, at defendant’s sentencing hearing, the trial court imposed a 10-year upper term enhancement for personal firearm use under section 12022.5. No objection was raised in the trial court to the imposition of this enhancement, and no contention was raised on appeal regarding the sentencing error. The 10-year firearm use enhancement is unauthorized and must be stricken.

(Gary note:  There was no discussion of effective assistance of counsel in the opinion.  It relied solely on the unauthorized nature of the sentence.  But I have “tagged” this as ineffective assistance of counsel.  How could counsel have let his or her client receive a 10-year enhancement that was not charged against the client?  Yes, it was against the co-defendant, but I’m not sure it takes a Monday morning quarterback to suggest that one’s client should not be sentenced on a different defendant’s charges.  If the co-defendant had been charged with murder, and my client with only burglary, I think I’d notice if my client was sentenced to a life term for my co-defendant’s murder conviction.  Just sayin’, I guess.)

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of the court, Sentencing, Standard of review

Case 000794

Posted on by Gary McCurdy

Error and/or relief

The court erred at the recall of sentence hearing under section 1172.6 when it refused to review the transcript of the district attorney’s summation at the original trial. We reverse the trial court’s order and remand the matter for the court to consider the record of conviction in its entirety.

First Holding:

Effective January 1, 2019, SB 1437 added what is now section 1172.6 and made other amendments to the Penal Code that eliminated the natural and probable consequences doctrine and limited the scope of liability that could be imposed under the felony murder theory.

The purpose of this legislation was 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.

Outside of the felony-murder rule, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448

Second Holding:

Effective January 1, 2022, SB 775 further limited the theories under which a defendant could be prosecuted to better reflect this purpose.

As a result, section 1172.6(a) now provides that 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 may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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;

(2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder;

(3) The petitioner could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Third Holding:

The court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. The parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under subdivision (c).

Authority:

PEN 1172.6(c)

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

Fourth Holding:

The prima facie inquiry under subdivision (c) is limited. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

The prima facie bar was intentionally and correctly set very low. At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

If the petitioner makes a prima facie showing of eligibility, the trial court must issue an order to show cause and hold an evidentiary hearing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

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

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing.

Authority:

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

Sixth Holding:

The trial court erred by refusing to consider the prosecutor’s closing argument when determining whether the defendant made a prima facie showing of eligibility for relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction may include closing arguments of counsel]

People v. Harden (2022) 81 Cal.App.5th 45, 55 [considering counsel’s arguments when determining prima facie eligibility under section 1172.6]

Seventh Holding:

In promulgating SB 775, the Legislature specifically provided relief to persons who may have been convicted under another theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Where the petitioner argues that he or she was convicted under another theory of imputed malice, the absence of natural and probable consequences and felony-murder instructions to the jury alone may not be sufficient to preclude eligibility as a matter of law.

As here, where the petitioner has identified specific portions of the record of conviction in support of the claimed theory of imputed malice, the trial court should consider that record material in the first instance to make its prima facie determination.

We reverse the trial court’s order denying the defendant’s petition for resentencing and remand the cause to the trial court to consider the record of conviction in its entirety.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 661 [legislature intended SB 1437 to reach beyond felony murder and natural and probable consequences cases]

Amelioration, Plea bargains, Sentencing

Case 000792

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1170(d), because (a) it incorrectly concluded that section 1171 barred resentencing where the original sentence was agreed on by the parties, and (b) it incorrectly believed that the parties had originally agreed to the sentence imposed. Reversed and remanded.

Because the trial court did not consider whether, despite the availability of youthful offender parole, the defendant’s determinate sentence is a de facto LWOP sentence, we leave that issue for the trial court to consider in the first instance.

First Holding:

Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

The statute then provides that a plea bargain may not be rescinded based upon such modification: Any change to a sentence shall not be basis for a prosecutor or court to rescind a plea agreement. Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement

Authority:

PEN 1171(a), (c)(2) and (c)(3)

Second Holding:

Section 1170(d), under certain circumstances, provides for the recall and resentencing of juvenile offenders [who were tried as adults] with LWOP sentences.

(Gary note: without citation to published authority directly discussing this point, the unpublished opinion concludes that the use of the term “life without the possibility of parole” in section 1170(d) does not mention any specific statutes imposing LWOP sentences, such as section 190.5.

(This court infers from that lack of specificity that the Legislature must have intended that section 1170(d) apply whenever a candidate has received a sentence that, effectively, precludes parole in his or her lifetime. In other words, this unpublished opinion’s reasoning on this point is that section 1170(d), by its very terms, contemplates both express LWOP sentences and de facto LWOP sentences (sentences whose terms cannot be completed within a reasonable lifetime).

(The court states, “Thus, the Legislature appears to have intended section 1170(d) to be interpreted in a practical rather than technical manner to apply not only to formal LWOP sentences but also to de facto LWOP sentences that effectively render a juvenile offender ineligible for parole before they are expected to die.”

(Keep in mind that my description of this part of the holding is placed in a bracketed “Gary note,” and I may be oversimplifying and even misstating the court’s reasoning on this point. I simply thought it was an interesting approach that may prove useful.

(Also, the county’s District Attorney “invited” the Supreme Court to grant review on its own motion.  I suspect it is because the Attorney General actually represented the People in this appeal, and the DA would have had no standing to file a petition for review.  The Supreme Court has granted itself to a date in October 2026 to decide whether to grant review on its own motion.)

Authority:

PEN 1170(d)(5)

Third Holding:

A practical interpretation of section 1170(d) is also supported by constitutional considerations. At least four Court of Appeal decisions have held that restricting resentencing under Section 1170(d) to juvenile offenders with formal LWOP sentences is irrational and violates equal protection, though others have disagreed.

Authority:

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Sorto (2024) 104 Cal.App.5th 435, 450-454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061

People v. Heard (2022) 83 Cal.App.5th 608, 631-634

Contra: People v. Baldwin (2025) 113 Cal.App.5th 978, 1002-1006

Contra: People v. Thompson (2025) 112 Cal.App.5th 1058, 1075-1081, review granted Sept. 24, 2025, S292540

Fourth Holding:

Nonetheless, interpreting section 1170(d) to be limited to formal LWOP sentences plainly raises a serious constitutional question, and it is well-established that statutes should be construed to avoid constitutional questions where they are reasonably susceptible to a reasonable alternative interpretation that do not raise such questions. Accordingly, we conclude that section 1170(d) should be interpreted to apply to de facto as well as formal LWOP sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 862 [If a statute is susceptible of two constructions, one of which will raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it free from doubt as to its constitutionality.]

People v. Miracle (2018) 6 Cal.5th 318, 339 [A statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.]

Fifth Holding:

The trial court held that the defendant was not serving a de facto LWOP sentence because he is eligible for youthful offender parole under section 3051 and, in fact, already has received a youthful offender parole hearing. We disagree. Youthful offender parole is available to all juvenile offenders with LWOP sentences, whether formal or not.

Moreover, the Legislature extended youthful offender parole hearings to juvenile offenders with LWOP sentences in 2017, five years after enacting section 1170(d). In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under section 1170(d), and, as the Supreme Court has long recognized, absent an express declaration of legislative intent, we will find an implied repeal only when there is no rational basis for harmonizing the two potentially conflicting statutes.

Accordingly, in determining whether an individual was sentenced to imprisonment for life without the possibility of parole under section 1170(d), youthful offender parole should be disregarded.

Authority:

PEN 3051(b)(4)

People v. Hardin (2024) 15 Cal.5th 834, 845

Garris v. McCutchen (1997) 16 Cal.4th 469, 477

People v. Sorto (2024) 104 Cal.App.5th 435, 447-448

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides 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. The court may, however, 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(b)(2)

Second Holding:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

People v. Wiley (2025) 17 Cal.5th 1069, 1078

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Amelioration, Elements of crime, Sentencing

Case 000784

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to recall his sentence under section 1172.6. The evidence was insufficient to prove he is guilty of murder and attempted murder beyond a reasonable doubt.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her criminal culpability. Specifically, it amended section 188 by adding a requirement that, except as stated in section 189(e), all principals to murder must act with express or implied malice to be convicted of that crime. SB 775 (2021-2022 Reg. Sess.) extended relief to defendants convicted of attempted murder, but only if their convictions were based on the natural and probable consequences doctrine.

Authority:

PEN 188(a)(3)

People v. Gentile (2020) 10 Cal.5th 830, 842-843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

SB 1437 also created a procedural mechanism for defendants with eligible murder convictions to seek retroactive relief under the amended law. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing.

At that hearing, the court sits as an independent fact finder and the prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under the amended law. The parties may offer new or additional evidence at the hearing.

Authority:

PEN 1172.6

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

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

People v. Garrison (2021) 73 Cal.App.5th 735, 743

Third Holding:

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends. The defendant must not only know the direct perpetrator’s intent to commit murder, but he or she must share that intent. And, aiding and abetting the commission of a crime requires some affirmative action. The word aids refers only to overt or affirmative forms of assistance.

Authority:

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

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Partee (2020) 8 Cal.5th 860, 868

Fourth Holding:

We review a trial court’s denial of a section 1172.6 petition for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a direct aider and abettor in the murder and attempted murders.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. Malice may be express or implied. The difference between express malice and implied malice is the former requires an intent to kill but the latter does not.

Authority:

PEN 187(a)

PEN 188(a)

People v. Soto (2018) 4 Cal.5th 968, 976

Sixth Holding:

Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 453

Seventh Holding:

We cannot presume that because members of the defendant’s group belonged to the same gang, they must have known each other’s intent. Indeed, the law does not recognize a rule of guilt by association. We insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends. Without knowledge of his cohort’s intent to kill, any of the defendant’s subsequent acts cannot constitute the actions necessary to establish aider and abettor liability.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165

Amelioration, Fines and fees, Sentencing

Case 000778

Posted on by Gary McCurdy

Error and/or relief

The defendant was originally sentenced in 2011. On resentencing the defendant under section 1172.75, the trial court should not have reimposed the restitution fine, jail classification fee, and booking fee because they are unenforceable and uncollectible.

First Holding:

The trial court originally imposed the restitution fine in July 2011. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated.

Because the restitution fine was originally imposed more than 10 years before the trial court resentenced defendant, under section 1465.9(d), the trial court should not have reimposed the restitution fine when it resentenced defendant in 2025.

Authority:

PEN 1465.9(d)

Second Holding:

The trial court also should not have reimposed the booking fee and jail classification fee under Government Code section 29550.2, because the Legislature repealed that section effective July 1, 2021. After July 1, 2021, the unpaid balance of court-imposed costs under several statutes, including Government Code section 29550.2, are unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

GOV 6111

Duty of the court, Sentencing

Case 000777

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have recalculated his credit for time served.

Holding:

Upon resentencing that results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment.

Authority:

PEN 2900.1

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 23