Tag Archives: Recall of sentence or resentencing

Amelioration, Sentencing

Case 000080

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former sec. 667.5(b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing.

Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken.

Authority:

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

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

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

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

People v. Raoy (2025) 110 Cal.App.5th 991

People v. Brinson (2025) 112 Cal.App.5th 1040

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

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

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Amelioration, Sentencing

Case 000074

Posted on by Gary McCurdy

Error and/or relief

As in Patton, we grant appellant’s request to remand the matter for the opportunity to file a supplemental petition under Penal Code section 1172.6.

First Holding:

When the court makes the prima facie determination, it may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition.

Authority:

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

Second Holding:

Petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail. It follows from what we have said already that should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing, assuming relief is not otherwise foreclosed.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Third Holding:

While it may be that a record can refute the allegations made in the petition, it would be somewhat imprecise to say that evidence in a preliminary hearing transcript, offered at the prima facie stage, irrefutably establishes any particular fact to any particular standard of proof. A conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a conclusion about the strength of evidence in the record.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567, fn. 10

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

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

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

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

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

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Amelioration, Retroactivity, Sentencing

Case 000068

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which narrowed liability for gang-related crimes.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

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

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

Second Holding:

AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607

Third Holding:

Assembly Bill No. 333 is retroactive under Estrada, meaning it applies to cases like this one where the judgment is not yet final.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Fourth Holding:

In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. [Gary note: I included this tidbit simply to raise awareness of a Court of Appeals options in how opinions may be crafted.]

Authority:

California Standards of Judicial Administration, section 8.1(1)