Tag Archives: Recall of sentence or resentencing

Abstracts and Minutes, Sentencing

Case: 000222

Posted on by Gary McCurdy

Error and/or relief

On appeal from resentencing under section 1172.75, the sole contention is that the trial court omitted updating his abstract of judgment with credit for time served as of the date he was resentenced. The case is remanded for the necessary credits correction and amendment of the abstract of judgment to reflect those credits.

Holding:

Absent a new sentence, the court left in place its 2023 amended abstract of judgment, with the same actual-days credit calculation as had been entered at defendant’s original 2015 sentencing. That calculation must be updated.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the factual allegations were proved. If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Third Holding:

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 preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000207

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. Defendant’s sentence is vacated, and this matter is remanded for further proceedings to include the option to retry the allegation and for resentencing.

First Holding:

Effective January 1, 2022, the Legislature enacted AB 333 to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 576

People v. Fletcher (2025) 18 Cal.5th 576, 586

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

Second Holding:

Though the prior conviction of what purported to be a serious felony was sustained in 2014, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

APeople v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Amelioration, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674