Tag Archives: Recall of sentence or resentencing

Amelioration, Duty of the court, Sentencing

Case 000776

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court failed to pronounce sentence on two of the counts. This was error. Also, the court must recalculate the defendant’s credit for time served.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Once the Department of Corrections and Rehabilitation identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant.

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A recall effectively vacates the defendant’s original sentence and commitment.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 399, 402

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. Rogers (2025) 108 Cal.App.5th 340, 360

Second Holding:

The resentencing under section 1172.75 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In resentencing, the court shall apply the sentencing rules of the Judicial Council and 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(d)(1)

Third Holding:

In a criminal case, judgment is rendered when the trial court orally pronounces sentence. If a sentence of imprisonment is to be imposed the sentencing judge must pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

At a sentencing hearing, the court must orally pronounce the sentence on the record. Since the court recalled defendant’s sentence under section 1172.75, it effectively vacated his original sentence and thus should have orally pronounced all components of the sentence on the record at the resentencing hearing.

Authority:

Rules of Court, rule 4.433(c)(5)

People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9

People v. Mesa (1975) 14 Cal.3d 466, 471 [Rendition of judgment is an oral pronouncement]

Fourth Holding:

There was also an error in the sentencing, in that the sentence on one count was a life term, but the count was not a serious felony and should have been sentenced as a determinate term.

It is well established that when the trial court pronounces a sentence that is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Benton (1979) 100 Cal.App.3d 92, 102

Fifth Holding:

The trial court should recalculate defendant’s custody credits on remand.

Authority:

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody.]

Abstracts and Minutes, Sentencing

Case 000769

Posted on by Gary McCurdy

Error and/or relief

The final abstract of judgment does not accurately reflect the defendant’s custody credits. We remand the matter with instructions to modify the final abstract of judgment.

First Holding:

When a defendant is resentenced following an appellate sentence remand, the sentencing court must determine all actual time the defendant has already served and recalculate the defendant’s actual custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The court determined that the defendant was in custody for [period A, more than 240 days] from arrest to original sentencing, and [period B, more than 1,000 more days] between the sentencing and resentencing hearings. The two numbers should have been added together to arrive at the total credit for time served. The abstract, however, treated the two numbers separately, listing the larger number [period B] as actual days in custody and the smaller number [period A] as conduct credits instead of actual days in custody, resulting in a failure to reflect an additional [more than 35 days] of conduct credit on [period A]. We direct the court to prepare an amended abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

Abstracts and Minutes, Amelioration, Appellate Principles

Case 000761

Posted on by Gary McCurdy

Error and/or relief

Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.

First Holding:

The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.

Authority:

People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]

People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]

Second Holding:

Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.

Authority:

PEN 1172.1

Third Holding:

If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.

Authority:

People v. Roy (2025) 110 Cal.App.5th 991, 998

People v. Hodge (2024) 107 Cal.App.5th 985, 996

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

Fourth Holding:

Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]

People v. Magana (2021) 63 Cal.App.5th 1120, 1125

People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]

Amelioration, Discretion, Sentencing

Case 000759

Posted on by Gary McCurdy

Error and/or relief

At the hearing on a petition for resentencing (the opinion does not state under which statute the petition was filed, but in the body of the opinion it mentions section 1172.1, under which various entities can recommend the recall of sentence and resentencing), the trial court denied the defendant’s request to reduce his kidnap for robbery conviction to the lesser included offense of false imprisonment, stating that it did not have discretion to do so. The court erred, as it did have the discretion. We remand for the court to exercise its discretion.

First Holding:

Under section 1172.1(a)(3)(B), the trial court may in the interest of justice vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense then resentence the defendant to a reduced term of imprisonment. Defendant thus asked the trial court at the hearing on his petition to reduce his conviction on count 2 from a kidnap to false imprisonment as the other counts in his sentencing were false imprisonment. The trial court viewed the request as a challenge to the evidence and declined to revisit the evidence.

The court indicated that it did not have the discretion to do anything but impose the sentence on the count of conviction. The court’s comments confirm that it was unaware it had the discretion under section 1172.1, subdivision (a)(3)(B) to reduce defendant’s kidnapping-for-robbery conviction on count 2 to false imprisonment and resentence him to a reduced term for that offense. The trial court thus abused its sentencing discretion.

Authority:

PEN 1172.1(a)(3)(B)

In re White (2020) 9 Cal.5th 455, 470

Second Holding:

When, as here, the trial court is unaware of its sentencing discretion, we must remand for resentencing unless the record clearly indicates that the trial court would have made the same decision if it had been aware of its discretion. The record does not indicate that. If anything, it indicates that the trial court might have imposed a lesser sentence on count 2 if it believed it had the discretion to do so. We therefore remand for a full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Terwilligar (2025) 109 Cal.App.5th 585, 601

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Marcus (2020) 45 Cal.App.5th 201, 214 [Because there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices.]

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

Amelioration, Discretion, Sentencing

Case 000756

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court erred in believing that it had no discretion to consider defendant’s motion pursuant to dismiss prior serious felony enhancements under Romero. The matter is reversed and remanded to the trial court with directions to hold a full resentencing hearing at which the court must consider defendant’s Romero motion.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b) to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code.

In 2021, SB 483 made this change retroactive. It enacted what is now Penal Code section 1172.75, which states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. To facilitate the process, the statute directs California’s Department of Corrections and Rehabilitation (CDCR) to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Upon receiving that information, the sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant. The statute provides separate deadlines for identification, review, and resentencing of individuals currently serving a sentence based on the enhancement and all other individuals.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. As relevant here, subdivision (d) specifies: that resentencing pursuant to this section 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.

Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The trial court must apply the sentencing rules of the Judicial Council as well as 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.

In addition, 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

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth 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. The trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of defendant’s strike priors after recalling his sentence and for the purpose of resentencing him under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

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

People v. Monroe (2022) 85 Cal.App.5th 393, 400

People v. Dowdy (2024) 107 Cal.App.5th 1, 9-13

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Amelioration, Elements of crime, Evidence, Sentencing, Vicarious liability

Case 000752

Posted on by Gary McCurdy

Error and/or relief

In denying the defendant’s petition for recall of his sentence imposed nearly 20 years ago for murder, attempted murder, a gang crime, and related enhancements, for which he was sentenced to life without the possibility of parole, plus 25 years to life, plus 20 years, the trial court erred in relying on the gang expert’s testimony that the defendant aided and abetted the shooter. The denial is reversed.

On remand, the court is directed to grant the petition, vacate the murder and attempted murder convictions, and resentence the defendant on the remaining substantive gang offense.

First Holding:

A defendant’s mere presence at a crime does not constitute substantial evidence that the defendant directly aided and abetted the commission of that crime.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 493

People v. Pettie (2017) 16 Cal.App.5th 23, 57–58 [Mere presence at the scene of a crime which does not itself assist its commission does not amount to aiding and abetting]

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. However, a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

People v. Soriano (2021) 65 Cal.App.5th 278, 286

Third Holding:

Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. However, it did not eliminate direct aider and abettor liability for murder or attempted murder. SB 1437 also added a procedure for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 848 [Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder], superseded by statute on other grounds as stated in People v. Oyler (2025) 17 Cal.5th 756, 836

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

Fourth Holding:

Under section 1172.6, a petitioner must first file a petition containing a declaration that he or she is eligible for relief, including that he or she could not presently be convicted of murder because of changes to Section 188 or 189” effectuated by SB 1437. Upon the filing of a facially sufficient petition, the trial court must determine whether the petitioner has made a prima facie case for relief.

If the court concludes such a showing has been made, it must issue an order to show cause and hold an evidentiary hearing. At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under the law as amended by SB 1437. The trial court acts as an independent fact finder and determines whether the evidence establishes that the petitioner is ineligible for resentencing.

Authority:

PEN 1172.6

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

People v. Cody (2023) 92 Cal.App.5th 87, 110

Fifth Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission are principals in any crime so committed.

Authority:

PEN 31

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Sixth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another 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.

Authority:

People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295–296

People v. Gentile (2020) 10 Cal.5th 830, 843

Seventh Holding:

Proof of aider and abettor liability requires proof of a culpable actus reus on the part of the aider and abettor in the form of some conduct by him that in fact assisted the achievement of the crime. A defendant’s mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility.

Authority:

People v. Perez (2005) 35 Cal.4th 1219, 1225

People v. Richardson (2008) 43 Cal.4th 959, 1024

Eighth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Ramon (2009) 175 Cal.App.4th 843, 847

Abstracts and Minutes, Fines and fees

Case 000751

Posted on by Gary McCurdy

Error and/or relief

The trial court having resentenced the defendant under section 1172.75, the matter is remanded for the trial court to determine the credit for time served and for correction of the abstract of judgment.

First Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. Thus, the matter should be remanded for defendant’s custody credits to be recalculated, and the abstract of judgment should be amended accordingly.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Second Holding:

The section 1202.4(b) restitution fine in the amount of $800 listed on the abstract of judgment filed after the resentencing hearing should be stricken, since the court granted his request to strike all fees and fines, except for direct victim restitution.

(Gary note: The court cited no authority for its order to correct the abstract of judgment. I have listed some of the cases 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

Amelioration, Standard of review

Case 000750

Posted on by Gary McCurdy

Error and/or relief

The trial court erred because the record of his conviction does not establish his ineligibility for resentencing under section 1172.6 as a matter of law. Remanded for the court to hold an evidentiary hearing on the defendant’s petition.

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas. First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189, subdivision (e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

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

Second Holding:

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine, which makes an accomplice guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the natural and probable consequence of the crime the accomplice aided and abetted (i.e., the nontarget offense). Thus, under prior law, a defendant who aided and abetted an intended assault could be liable for murder, if the murder was the natural and probable consequence of the intended assault.

Authority:

People v. Curiel (2023)15 Cal.5th 433, 449

Third Holding:

SB 1437 also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to ask the trial court to vacate their conviction and resentence them. As relevant here, the statute provides that a person convicted of felony murder may file a petition to have his or her conviction vacated when: (1) the charges filed against the person allowed the prosecution to proceed on a theory of felony murder; (2) the person was convicted of murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of murder; and (3) the person could not presently be convicted of murder because of changes to section 189 made effective January 1, 2019.

Authority:

PEN 1172.6

People v. Das (2023) 96 Cal.App.5th 954, 959

Fourth Holding:

After briefing on a defendant’s petition, the trial court must hold a hearing and determine whether the petitioner has made out a prima facie case for relief. If the petition and record “establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty under a still-valid theory of murder. If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6

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

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. 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 section 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.

Authority:

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

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

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

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

Seventh Holding:

Contrary to the trial court’s finding, the bare record does not establish that the defendant was the actual killer. Section 12022.53(b) does not require personal use of a firearm causing death or great bodily injury. Rather, the enhancement only requires that the defendant personally uses a firearm in the commission of a felony. Our Supreme Court has held that the similar enhancement for personal use of a firearm in section 12022.5 does not in itself prove a defendant was the actual killer. In fact, section 12022.53(b) states that the firearm need not be operable or loaded for the enhancement to apply.

Accordingly, defendant’s admission to this enhancement cannot establish conclusively that he actually killed the murder victim. Also, the generic murder charge in the information did not limit the People to prosecuting defendant under any particular theory of murder because neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded.

And the defendant’s plea by itself establishes only that a murder with malice was committed and that he committed an act with the necessary intent to render him liable for that murder under then-existing law. The record contains no preliminary hearing transcript or plea hearing transcript from which we can discern any further information about the basis for defendant’s plea. Nor does the defendant’s plea to attempted murder necessarily establish that he had the intent to kill.

Authority:

People v. Jones (2003) 30 Cal.4th 1084, 1120

People v. Rivera (2021) 62 Cal.App.5th 217, 233, review granted June 9, 2021, S268405

People v. Eynon (2021) 68 Cal.App.5th 967, 977

People v. Patton (2025) 17 Cal.5th 549, 564 [unchallenged, relief-foreclosing facts within a preliminary hearing transcript may refute conclusory, checkbox allegations at prima facie stage]

People v. Ramos (2024) 103 Cal.App.5th 460, 463, 466 [defendant admitted during plea hearing that he aided/abetted, with the specific intent to kill, the attempt to kill the victim]

People v. Fisher (2023) 95 Cal.App.5th 1022, 1025, 1030 [defendant admitted during plea hearing that he shot and killed both murder victims and shot and injured the attempted murder victim]

People v. Montes (2021) 71 Cal.App.5th 1001, 1007 [because jury was instructed on natural and probable consequences doctrine, guilty verdict for attempted murder does not necessarily establish intent to kill]

Appellate Principles, Sentencing

Case 000743

Posted on by Gary McCurdy

Error and/or relief

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent’ felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. If a defendant’s current offense is a serious felony, the defendant is also subject to a five-year prior serious felony enhancement—a so-called ‘nickel prior’—in addition to any strike

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582

People v. Thomas (1999) 21 Cal.4th 1122, 1129,

People v. Arnett (2006) 139 Cal.App.4th 1609, 1613

Second Holding:

Penal Code section 667(a) provides that a person convicted of a serious felony who previously has been convicted of a serious felony shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. A serious felony means a serious felony listed in section 1192.7(c), which identifies 42 offenses as serious felonies, including any felony punishable by death or imprisonment in the state prison for life.

Authority:

PEN 667(a)

PEN 1192.7(c)

Third Holding:

For an offense falling within the enumerated list without any change in elements since the conviction, the question whether that conviction qualifies as a serious felony is entirely legal. But if there is a factual question of whether conduct underlying the crime qualifies the offense as a serious felony, any such facts must be tried to the same factfinder that decided the defendant’s guilt of the charged crime.

Authority:

PEN 969f(a)

People v. Kelii (1999) 21 Cal.4th 452, 456

Fourth Holding:

None of the defendants prior convictions are for offenses listed in section 1192.7(c). And though he received a life sentence because he was a third-strike offender, section 1192.7(c)(7) category requires that the offense be itself punishable by life imprisonment, without regard to application of the Three Strikes law based on defendant’s status as a recidivist.

Authority:

People v. Thomas (1999) 21 Cal.4th 1122, 1130

People v. Hernandez (2017) 10 Cal.App.5th 192, 198 [construing the ineligibility factors of the Three Strikes Reform Act of 2012–Proposition 36–depends on the nature of the offense itself, not the effect of other prior convictions on the defendant’s sentence]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1159 [construing the ineligibility factors for consideration under section 1170.91 regarding the mitigating effect of trauma incurred in the course of military service, which may even include recall of the sentence and resentencing]

Fifth Holding:

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken. We have authority to correct a sentence that is not authorized by law. But when an error affects part of a sentence, the case must be remanded for a full resentencing hearing as to all counts to permit a trial court to exercise its sentencing discretion in light of the changed circumstances. We thus remand for resentencing.

Authority:

People v. Choyce (2025) 18 Cal.5th 86, 128

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)

People v. Shaw (2020) 56 Cal.App.5th 582, 588-589

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

Sentencing, Statutory interpretation

Case 000741

Posted on by Gary McCurdy

Error and/or relief

The court erred in not conducting a full resentencing on the defendant’s petition for recall under section 1172.75. Remanded for full resentencing.

First Holding:

When a defendant raises both statutory and constitutional bases for their appeal, we do not reach the constitutional grounds if the case can be resolved on statutory grounds. When a defendant appeals the denial of a Marsden motion, the core inquiry is whether the trial court’s ruling violated the defendant’s constitutional right to the effective assistance of counsel.

Authority:

Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497, 513 [a reviewing court should consider a constitutional question only where essential to the disposition of a case]

People v. Marsden (1970) 2 Cal.3d 118, 123

People v. Smith (1993) 6 Cal.4th 684, 696

Second Holding:

On the other hand, the scope of a trial court’s application of section 1172.75 is a question of statutory interpretation, which is subject to our de novo review. If that review resolves the appeal, it is dispositive.

Authority:

People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–1282

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231 [finding that where statutory and constitutional claims are at issue and resolution of the statutory ground is adequate to resolve the matter, doing so is dispositive]

Third Holding:

The parties disagree about whether defendant forfeited his argument that the trial court erred by failing to conduct a full resentencing under section 1172.75. In the interests of judicial economy, to forestall an ineffective assistance of counsel habeas petition, and to avoid the constitutional issues raised by defendant regarding the performance of his trial counsel, we decline to enforce any forfeiture under the circumstances of this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

Fourth Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

Where an issue on appeal requires that we determine the meaning of a statute, we review the trial court’s decision de novo. In any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. When the language of a statute is clear, we need go no further.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Scott (2014) 58 Cal.4th 1415, 1421

People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls]

Seventh Holding:

Section 1172.75 makes any sentence enhancement imposed prior to January 1, 2020, pursuant to 667.5(b) legally invalid unless it was imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code. If the court determines (through the process set forth in the statute) that the defendant’s sentence includes an invalid enhancement, it is required to recall the sentence and resentence the defendant. An eligible defendant under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [Where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Fines and fees, Sentencing

Case 000737

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the $200 restitution fine imposed by the trial court on resentencing must be vacated, as section 1465.9(d) requires such a fine that is more than 10 years old to be vacated.

First Holding:

Section 1202.4 states a court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Authority:

PEN 1202.4

Second Holding:

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. This section not only authorizes, but mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626

Amelioration, Sentencing

Case 000729

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court was required to resentence the defendant under the Three Strikes Reform Act of 2012 to determine whether he should be sentenced as a second strike defendant under the Act, subject to a finding that such resentencing would present an unreasonable risk of danger to the public in the context of the Act.

First Holding:

The Three Strikes Reform Act of 2012 limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion” with a goal of eliminating disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1170.126

PEN 1172.75

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849

Second Holding:

In Guevara, the Supreme Court held that because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

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

Third Holding:

Section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

On remand, the trial court should conduct an analysis of whether defendant, at the time of the hearing, continues to pose a danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17