Tag Archives: Sentencing

Case 001088

Error and/or relief

The court erred in denying at the prima facie stage the defendant’s 1172.6 petition for recall of his sentence.

First Holding:

In 2018, the Legislature amended the law of homicide, eliminating several theories of liability based on imputed malice. It has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted. Under what is now section 1172.6, it provided a mechanism for individuals previously convicted of murder to show their entitlement to retroactive relief under the legislative changes.

Pertinent to this case, SB 1437 added section 189(e), providing felony-murder liability only if the defendant:

(1) was the actual killer;

(2) was not the actual killer but, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder; or

(3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 1172.6(a)

People v. Patton (2025) 17 Cal.5th 549, 556

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

People v. Lewis (2021) 11 Cal.5th 952, 957

Second Holding:

SB 775 expanded eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Muhammad (2024) 107 Cal.App.5th 268, 275

Third Holding:

A section 1172.6 petition may be filed by a person convicted of felony murder or murder 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, attempted murder under the natural and probable consequences doctrine, or manslaughter when certain specified conditions apply.

An individual convicted under prior law may petition to vacate the conviction and be resentenced on any remaining counts, if he or she could not now be convicted of murder or attempted murder because of the changes made by SB 1437.

Upon receipt of a petition containing all required information, the trial court must appoint counsel to represent the petitioner, if requested. The trial court must also set a briefing schedule and hold a prima facie hearing. If the trial court determines that petitioner has made a prima facie case for relief, it must issue an order to show cause and conduct an evidentiary hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708-709

People v. Lewis (2021) 11 Cal.5th 952, 959-960

Fourth Holding:

The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause. Acourt should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.

However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

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

Fifth Holding:

Whether the record of conviction shows that petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question we review de novo.

(Gary note: The court then continued by determining that the record the trial court was permitted to review at the prima facie stage did not necessarily reflect that the defendant was ineligible for relief under section 1172.6 and remanded to the trial court to issue an order to show cause and conduct an evidentiary hearing.)

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Case 001087

Error and/or relief

On resentencing under section 1172.75, the abstract of judgment fails to reflect the credit for time served ordered by the court, and it must be corrected.

Holding:

The abstract of judgment must be corrected to reflect an additional (more than 3400) days of custody credits, as ordered by the trial court. It does not reflect the days ordered by the court for the time since the original sentencing, and it overstates the conduct credit that was originally ordered by 200 days.

In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order. Accordingly, the amended abstract of judgment must be corrected to reflect the correct number of prior credits and to add the additional (more than 3400) days.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Case 001086

Error and/or relief

There is a discrepancy between the trial court’s oral pronouncement and the abstract of judgment. It must be corrected.

Holding:

The abstract of judgment indicates that the trial court imposed a $40 court operations assessment and a $30 criminal conviction assessment. The trial court did not orally impose either assessment. When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. We have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts. We order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Case 001085

Error and/or relief

The sentencing minute order and the abstract of judgment does not reflect the oral pronouncement of judgment and must be corrected.

Holding:

The minute order and the abstract of judgment reflect that the total of the sentence was three years instead of the orally pronounced two years. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. A minute order or abstract of judgment that does not accurately reflect the oral judgment of the trial court may be corrected on appeal.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185–186

Case 001083

Error and/or relief

There are errors in the abstract of judgment that must be corrected.

Holding:

The abstract of judgment includes an “x” in boxes 6(b) and 6(d), which appear to have been checked in an attempt to reflect the sentence of 25 years to life on the firearm enhancement imposed under section 12022.53(d). But boxes 6(b) and 6(d) are intended to reflect indeterminate sentences imposed on crimes, not enhancements, and the sentence for the firearm enhancement is reflected in the “Enhancements” section of the abstract of judgment.

The abstract of judgment reflects that a $1,000 restitution fine was imposed in “Case B.” The trial court imposed a $1,000 restitution fine under section 1202.4(b), which is reflected on the abstract of judgment, but there is no “Case B” here.

The abstract of judgment does not reflect that the trial court imposed a suspended $1,000 parole revocation fine.

The trial court is directed to correct these errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]