Tag Archives: Recall of sentence or resentencing

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

Case: 000165

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the court erred in reimposing an unenforceable restitution order and in failing to update the defendant’s custody credits. Though the court did not orally reimpose the fine or recalculate credit for time served, the amended abstract of judgment reflects the fine and the credits he received at the defendant’s original sentencing.

First Holding:

The restitution fine imposed under section 1202.4(b) Must be vacated because it is over 10 years old.

Authority:

PEN 1465.9(d)

Second Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. The defendant is entitled to an updated abstract that accurately reflects the amount of custody credits earned.

Authority:

PEN 2900.1

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. 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.

Authority:

PEN 1170b)(1)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply Chapman. Such errors are 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. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Amelioration, Sentencing

Case: 000163

Posted on by Gary McCurdy

Error and/or relief

Here, the trial court erroneously declined to resentence the defendant under section 1172.75. Because the court never exercised its discretion under the statute, we remand for it to do so in accordance with the mandatory procedures for recall and resentencing under section 1172.75.

First Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a now-invalid prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Second Holding:

[Gary note: NOT discussed in this opinion, but important to know anyway.  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)

Amelioration, Sentencing

Case: 000162

Posted on by Gary McCurdy

Error and/or relief

Section 1172.75 does not apply to the defendant’s death sentence. However, because the defendant was also sentenced to an indeterminate term in addition to the death sentence, and because section 1172.75 applies by its terms to this aspect of his sentence, we conclude he is entitled to resentencing of the indeterminate term only.

First Holding:

Prior to January 1, 2020, section 667.5(b) required the court to impose a one-year enhancement for each prior prison term the defendant had served, unless the defendant had remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses. After SB 136 took effect, courts applied the legislation retroactively to cases that were not yet final on January 1, 2020.

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

People v. Christianson (2023) 97 Cal.App.5th 300, 309

People v. Jennings (2019) 42 Cal.App.5th 664, 668

Second Holding:

After the superior court verifies a judgment includes an invalid enhancement, the court must recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(c)

People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223

Third Holding:

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 855

Fourth Holding:

Insofar as the defendant’s claims require us to interpret section 1172.75, they present questions of statutory interpretation and construction subject to de novo review. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 495

People v. Brown (2023) 14 Cal.5th 530, 536

Fifth Holding:

[Gary Note: the opinion contains footnotes on cases that have dealt with and disagreed on the impact of section 1172.75 on those serving death sentences. The issue is complex and is pending in the California Supreme Court. The cases are listed below. I have chosen not to include the discussion or debate on that point. In this instance, the appellate concluded that section 1172.75 does not affect the death sentence but a death sentence does not render a defendant ineligible for resentencing on the indeterminate portion of the sentence.]

Authority:

People v. Dixon (2025) 112 Cal.App.5th 236, review granted Oct. 22, 2025, S292223

People v. Millsap (2025) 114 Cal.App.5th 368

People v. Cain (2025) 116 Cal.App.5th 917, review granted Feb. 18, 2026, S294810

Abstracts and Minutes, Amelioration, Sentencing

Case: 000158

Posted on by Gary McCurdy

Error and/or relief

Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.

First Holding:

Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter 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. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.

Authority:

PEN 1172.6

Second Holding:

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532

People v. Basler (2022) 80 Cal.App.5th 46, 57

People v. Jackson (2025) 110 Cal.App.5th 128, 150-151

Third Holding:

The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.

Authority:

Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668

Fourth Holding:

Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Nieves (2021) 11 Cal.5th 404, 461

People v. Mendoza (2016) 62 Cal.4th 856, 902