Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case: 000173

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from an order finding her ineligible for resentencing under Penal Code section 1172.75. The trial court found her ineligible because the prior prison term enhancement had been stayed and not executed. We reverse with instructions that the trial court conduct further proceedings under that section.

First Holding:

The defendant is not requesting resentencing under the Three Strikes Reform Act. She was not even eligible for the Three Strikes Reform Act process because her current felony is a serious felony, to which the Reform Act is inapplicable. She is requesting the trial court exercise its discretion under in the furtherance of justice under Romero to strike one of her prior strike offenses. Because she is not eligible for (and is not seeking relief under) the Three Strikes Reform Act, section 1172.75 does not unconstitutionally conflict with it.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 347, 363-364

People v. Superior Court (Romero) 13 Cal.4th 497

Second Holding:

A defendant is entitled to the provisions of section 1172.75 even when execution was stayed for the now-invalid enhancement for a prior prison term.

Authority:

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

Third Holding:

[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 (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

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

Fourth Holding:

In 2020, the Legislature enacted section 1172.75, which limits the circumstances when section 667.5, subdivision (b) sentencing enhancements may be imposed. Someone serving a sentence that includes an enhancement that section 1172.75 now renders invalid is eligible for possible resentencing.

Authority:

PEN 1172.75

People v. Renteria (2023) 96 Cal.App.5th 1276, 1282

Fifth Holding:

Though inapplicable here because the defendant is ineligible for relief under the Three Strikes Reform Act, the Reform Act’s revised penalty provisions may be applied at a section 1172.25 resentencing if section 1170.126’s substantive requirements are satisfied.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861

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

Case: 000172

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing, the abstract of judgment must be amended to reflect the additional days of credit for time served since the original sentence was imposed.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence.

Authority:

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

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

Second Holding:

The abstract of judgment incorrectly reflects the trial court’s calculation of custody credits. The abstract of judgment must be amended to include an additional [more than 4,000 days] for the period the defendant remained in custody between his [after 2010] original sentencing and his [before 2025] resentencing.

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. The appellate court may direct the trial court to correct clerical errors in an abstract of judgment. I have set forth some of the authorities the court could have cited.]

Authority:

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

Sentencing

Case: 000171

Posted on by Gary McCurdy

Error and/or relief

We agree that on the resentencing of the defendant, the court failed to award the proper number of custody credits.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. [Gary Note: though not expressly stated in the opinion, at resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence, per Buckhalter.]

Authority:

PEN 2900.1

PEN 2900.5

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

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

Amelioration, Sentencing

Case: 000170

Posted on by Gary McCurdy

Error and/or relief

The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. It shall not result in a longer sentence than the one originally imposed.

The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 36

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.

Authority:

PEN 1172.75

People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]

People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]