Tag Archives: Recall of sentence or resentencing

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000035

Posted on by Gary McCurdy

Error and/or relief

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding:

The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

PEN 1172.75

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]

Second Holding:

Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.

Authority:

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

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

People v. Burgos (2024) 16 Cal.5th 1, 28

Third Holding:

If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.

Authority:

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

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

United States v. Tateo (1964) 377 U.S. 463, 465

Fourth Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41

Amelioration, Sentencing

Case 000029

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 § 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 section 1172.75 where the now-invalid conviction had been imposed but was stayed or stricken.

Authority:

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

Amelioration, Sentencing

Case 000023

Posted on by Gary McCurdy

Error and/or relief

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Holding:

The Legislature declared legally invalid any prior-prison-term enhancements imposed before January 1, 2020, except those arising from convictions for sexually violent offenses, and provided for resentencing under Penal Code section 1172.75. Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

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

Amelioration, Sentencing, Standard of review

Case 000021

Posted on by Gary McCurdy

Error and/or relief

The timing of the defendant’s plea does not preclude him relief under section 1172.6 because, at the time of his plea, he could have been convicted under invalidated theories of attempted murder. We also find his admissions, including his admission to acting with an intent to kill, did not establish all the elements of a valid theory of attempted murder under current law. Accordingly, we reverse the summary denial of his petition and remand for further proceedings.

First Holding:

Where a petition states eligibility on its face, and the court examines the record of the conviction suggesting otherwise, the defendant must be given an opportunity to file an amended petition.

Authority:

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

Second Holding:

Effective January 1, 2019, Senate Bill 1437 amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

SB 1437

SB 775

PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959

Third Holding:

At the prima facie hearing, the trial court may examine the record of conviction to assess whether it refutes a defendant’s claim of eligibility.

Authority:

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

Fourth Holding:

It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing

Authority:

People v. Lopez (2023) 88 Cal.App.5th 566, 576

Fifth Holding:

When the defendant’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 and the defendant’s express admissions at the plea colloquy.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212

People v. Fisher (2023) 95 Cal.App.5th 1022, 1029

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

Sixth Holding:

If the trial court denies the petition without issuing an order to show cause, it must state its reasons.

Authority:

PEN 1172.6(c)

Seventh Holding:

We independently review a summary denial of a section 1172.6 petition for resentencing.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000017

Posted on by Gary McCurdy

Error and/or relief

We reverse the court’s denial of the resentencing petition, which was not based on a review of the record, and remand for further proceedings under section 1172.6(c).

First Holding:

The trial court may deny a section 1172.6 petition at the prima facie stage only if the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law. If a petitioner files a facially sufficient section 1172.6 petition by indicating, among other criteria, that he meets the statutory requirements for relief,it triggers the prosecution’s duty to submit a response and the petitioner’s right to file a reply on the issue of whether a prima facie case for relief exists.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

People v. Strong (2022) 13 Cal.5th 698, 707

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456

People v. Patton (2025) 17 Cal.5th 549, 558–559

Second Holding:

The record of conviction includes documents from jury trial such as jury instructions and verdict forms.

Authority:

People v. Gallardo (2024) 105 Cal.App.5th 296

Third Holding:

We review an order denying a petition at the prima facie stage de novo.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

Fourth Holding:

The right to seek replacement of counsel under Marsden applies at all stages of a criminal proceeding.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

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

People v. Carter (2024) 15 Cal.5th 1092, 1096 [Marsden motion sought disqualification of the public defender’s office and individual deputy public defender]

Fifth Holding:

The record of conviction will inform the court’s prima facie inquiry, allowing the court to distinguish clearly meritless claims.

Authority:

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