Tag Archives: Sentencing

Amelioration, Elements of crime, Sentencing

Case: 000303

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.

First Holding:

Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

AB 333

PEN 186.22

PEN 1192.7(c)(28)

PEN 667

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Second Holding:

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.

Authority:

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

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

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

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

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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

Defenses, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000300

Posted on by Gary McCurdy

Error and/or relief

We order the protective order modified to strike [person x] as a protected person. We reject the defendant’s claim that the trial erred in not sua sponte instruction on the defense of unconsciousness.

First Holding:

Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. For purposes of the defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist where the subject physically acts but is not, at the time, conscious of acting. The law presumes that a person who appears to be acting in a state of consciousness is conscious. Accordingly, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness. If a defendant produces substantial evidence that he or she was unconscious, the trial court is obligated to instruct the jury on the theory; the failure to do so is error. In this case, the defendant did not rebut the presumption of his consciousness, and it was therefore not error for the trial court to fail to instruct the jury on unconsciousness sua sponte.

Authority:

PEN 26

People v. Halvorsen (2007) 42 Cal.4th 379, 417

People v. James (2015) 238 Cal.App.4th 794, 804

Second Holding:

Unconsciousness caused by voluntary intoxication may negate specific intent, but it is not a defense to a general intent crime. Assault with a deadly weapon is a general intent crime. Reckless evasion of a peace officer is a specific intent crime.

Authority:

People v. James (2015) 238 Cal.App.4th 794, 805

People v. Rocha (1971) 3 Cal.3d 893, 899

People v. Williams (2001) 26 Cal.4th 779, 788

People v. Taylor (2018) 19 Cal.App.5th 1195, 1203-1206

Third Holding:

We review de novo whether the trial court correctly instructed the jury.

Authority:

People v. Oropeza (2007) 151 Cal.App.4th 73, 78

Fourth Holding:

A case is not authority for propositions not considered.

Authority:

People v. Chavez (2020) 54 Cal.App.5th 477, 480

Fifth Holding:

Where a defendant is convicted of certain defined crimes of domestic violence, the trial may issue a protective order restraining the defendant from any contact with a victim of the crime. Such orders are limited to defendants convicted of crimes that qualify as domestic violence and where the protected person qualifies as a victim of said crimes. The trial court does not have authority to restrain a defendant from contacting a person who was not present during or otherwise suffered harm from the crime.

For instance, a protective order covering children who were present but asleep during a domestic violence incident was found to be improper in Lopez. With respect to the issuance of a legally authorized criminal protective order, we imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.

The record here contains no substantial evidence from which the trial court reasonably could conclude that [person x] was a victim of the crime subject to protection under section 136.2(i)(1).

Authority:

PEN 136.2,(i)(1)

People v. Lopez (2022) 75 Cal.App.5th 227, 237

People v. Pena (2025) 113 Cal.App.5th 640, 648

People v. Race (2017) 18 Cal.App.5th 211, 217

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212 [absent evidence from which the trial court could reasonably conclude that appellant had harmed or attempted to harm two children, the court lacked authority to issue the no-contact protective order as to the children]

Fines and fees, Jurisdiction, Plea bargains, Sentencing

Case: 000299

Posted on by Gary McCurdy

Error and/or relief

On revoking probation, the court added an additional restitution fine to the original restitution fine and modified an eight-month consecutive term to an eight-month concurrent term in the same case, and then a 16-month concurrent term in a second case. On notice from the Department of Corrections and Rehabilitation that the 8-month concurrent term was unauthorized because the the one-third of the middle term clculation applies only to consecutive terms. The trial court then converted the eight-month concurrent term to 16 months concurrent. The second restitution fine was unauthorized and must be stricken. The court had no authority to change the original eight-month consecutive term to either a concurrent eight-month term or a sixteen-month concurrent term, because at the time probation was granted, the court imposed a sentence (two years on the principal count and eight months on the subordinate offense) in that case, with execution suspended pending successful completion of probation. The matter is remanded for resentencing.

First Holding:

A restitution fine imposed at the time probation is granted survives the revocation of probation. Because of this, an additional restitution fine imposed at the time probation is revoked is unauthorized and must be stricken from the judgment.

Authority:

People v. Urke (2011) 197 Cal.App.4th 766, 779

People v. Chambers (1998) 65 Cal.App.4th 819

Second Holding:

There is a distinction between a probation grant in which imposition of sentence has been suspended (meaning, no sentence has been declared) and one where sentence has been imposed (meaning, a term has been specified) with the execution of that term suspended during the term of probation. In the former (imposition of sentence suspended), on revocation the court is free to choose whatever sentence options were available had probation never been granted. In the latter, the only choices are to reinstate probation or to revoke probation and order the previously imposed sentence executed.

Authority:

PEN 1203.2(c)

People v. Howard (1997) 16 Cal.4th 1081

People v. Scott (2014) 58 Cal.4th 1415, 1424

Third Holding:

The letter from CDCR did not constitute a recommendation for recall of the sentence and resentencing under section 1170.1 that the sentence be modified. It was merely a letter seeking clarification on whether a lawful sentence had been imposed. Thus, the court could not base its resentencing on a response to the notice contemplated by section 1170.1.

Authority:

PEN 1170.1

People v. Codinha (2023) 92 Cal.App.5th 976, 986-987

People v. Singleton (2025) 113 Cal.App.5th 783, 791–792

Fourth Holding:

When the parties negotiate a plea agreement that grants probation incorporating and conditioned upon the service of a specified term in custody, the resulting term of incarceration constitutes a material term of, the parties’ agreement. As such, the term is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court’s general statutory authority to modify probation during the probationary period. Further, a plea agreement requiring an unauthorized sentence is not enforceable. On the other hand, once the court approves a plea bargain, it cannot change the agreement without the consent of the parties. When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931, 935

In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 945 [the trial court cannot approve a plea bargain that calls for an unlawful sentence]

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757

People v. Baries (1989) 209 Cal.App.3d 313, 319 [The concurrent sentence was unauthorized and could not have been lawfully imposed. It must be vacated, and the trial court must give the defendant, if she chooses, the opportunity to withdraw her plea since it cannot be honored.]

People v. Griffin (2005) 128 Cal.App.4th 1112, 1119

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000298

Posted on by Gary McCurdy

Error and/or relief

Although a trial court has broad discretion in imposing terms and conditions when sentencing a criminal defendant to probation instead of imprisonment, any conditions imposed must have some relationship to the crime and be designed to prevent future criminality. In this case, one of the probation conditions imposed required defendant to participate in mental health and substance abuse testing and treatment. Not only was this unconnected to the underlying crime, any suggestion in the probation and sentencing report that defendant suffered from mental health or substance abuse issues was wholly unsupported. Therefore, that probation condition must be stricken.

Holding:

A sentencing court has broad discretion to impose probation conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. But such discretion is not unlimited: A condition of probation must serve a purpose specified in the statute and conditions regulating noncriminal conduct must be reasonably related to the crime of which the defendant was convicted or to future criminality. A probation condition will be upheld unless all of the following are true: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. We review a challenge to the conditions of probation for abuse of discretion.

Authority:

PEN 1203.1

People v. Moran (2016) 1 Cal.5th 398, 403

People v. Lent (1975) 15 Cal.3d 481, 486

Amelioration, Sentencing

Case: 000297

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit

First Holding:

Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.

Authority:

PEN 1172.75

PEN 667.5

Second Holding:

Penal Code 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.

Authority:

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

Third Holding:

Defendant’s actual presentence custody credits must be recalculated at this resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

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

Amelioration, Sentencing

Case: 000293

Posted on by Gary McCurdy

Error and/or relief

In 2022, the trial court resentenced the defendant under Penal Code section 1172.75, which invalidated prior prison enhancements, by striking the enhancements. The trial court, however, left intact the Three Strikes sentences. The court should have considered whether to reduce the sentence in line with the Three Strikes Reform Act.

Holding:

A trial court is required to apply the Three Strikes Reform Act of 2012 at a section 1172.75 proceeding absent a finding the defendant poses an unreasonable risk of danger to public safety.

Authority:

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

Amelioration, Discretion, Fines and fees, Sentencing, Standard of review

Case: 000292

Posted on by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the abstract of judgment must be amended to accurately reflect his actual custody credits, and several fines and fees must be reduced or vacated.

First Holding:

Effective January 1, 2022, section 1172.75(a) invalidated sentence enhancements imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5. With exceptions not relevant here, the statute requires that sentences that include these invalid enhancements be recalled and the defendant resentenced.

Authority:

PEN 1172.75

Second Holding:

We review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion. Section 1172.75(d), vests the superior court with broad discretion based on an inherently factual inquiry. Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Authority:

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

People v. Garcia (2024) 101 Cal.App.5th 848, 856–857

Third Holding:

An appellate court may not substitute its judgment about appropriate sentencing for that of the trial court, but instead must give due regard to the discretion vested in that court. The appellate court can find a reversible abuse of discretion only if it concludes that no reasonable judge would have agreed with the trial court’s decision. Unless that standard is met, the appellate court must affirm the decision, even if it might have ruled differentlyin the first instance.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 258

Fourth Holding:

The abstract of judgment reflects credit for time served but reflects 326 fewer days than the defendant is entitled to. It must be corrected to reflect the correct number of days.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Fifth Holding:

The trial court imposed a $30 criminal conviction fee on each count pursuant to Government Code section 70373. It also imposed a court operation fee of $40 per count pursuant to section 1465.8, subdivision (a)(1). However, Government Code section 70373 only applies to convictions after the statute’s January 1, 2009 effective date. Similarly, the court operations fee is only applicable to convictions after the statute’s 2003 operative date. Because the defendant suffered the convictions in 1995, the criminal conviction and court operations fees must be stricken.

Authority:

PEN 1465.8

People v. Davis (2010) 185 Cal.App.4th 998, 1000

People v. Alford (2007) 42 Cal.4th 749, 753, 754

Sixth Holding:

The restitution fine must be vacated, as it was imposed more than 10 years ago. 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.

Authority:

PEN 1465.9

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

SeventhHolding:

The parole revocation fine must be reduced from $300 to $200. At the resentencing hearing, the court imposed a $300 restitution fine and imposed and stayed a $300 parole revocation fine. However, because the trial court originally imposed a $200 restitution fine, and the court may not impose a more severe punishment on resentencing, we agree with the parties that the stayed parole revocation fine must be reduced to $200, matching the originally imposed restitution fine.

Authority:

PEN 1172.75

Duty of the court, Sentencing

Case: 000290

Posted on by Gary McCurdy

Error and/or relief

On resentencing following remand from the prior appeal, the court failed to recaculate the credit for time served.

First Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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

Second Holding:

The trial court must calculate the credits. It is not the proper function of the Court of Appeal to engage in this business of correction of clerical errors in the computation of credits.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

Abstracts and Minutes, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000289

Posted on by Gary McCurdy

Error and/or relief

We conclude that section 654 did not apply here because the trial court granted defendant probation without imposing sentence, so we affirm the judgment. But we direct the trial court to correct the clerk’s minute order to reflect the oral pronouncement as to the jail probation condition and restitution fine and corresponding stayed probation revocation fine as $300 each.

First Holding:

There is an apparent discrepancy between the court’s oral pronouncement imposing a probation condition of 300 days in county jail and the clerk’s minute order splitting the 300 days between the two counts, showing 150 days under each count. The record of the oral pronouncement of the court controls over the clerk’s minute order. The court’s oral pronouncement was clear. It imposed a probation condition of 300 days in county jail. We order the clerk’s minute order corrected to reflect the court’s oral pronouncement of a probation condition of 300 days in county jail.

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 187-188

Second Holding:

Generally, section 654, which precludes multiple punishment for a single act, does not apply when a court grants a defendant probation. A grant of probation is neither punishment nor a criminal judgment. It is an act of grace and clemency designed to allow rehabilitation. No punishment is imposed. Section 654 does not apply where no punishment is imposed. This is so even if probation is conditioned on jail time. Here, because the trial court granted defendant probation without imposing a sentence, section 654 does not apply.

Authority:

PEN 654

People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240

People v. Wittig (1984) 158 Cal.App.3d 124, 126-127 137

People v. Prudholme (2023) 14 Cal.5th 961, 965

Third Holding:

The minute order conflicts with the trial court’s oral pronouncement, the latter which ordered only the mandatory minimum fines (here, $300), not the $1,000 fine included in the minutes. When there is a discrepancy between the court’s oral pronouncement and the clerk’s minute order or the abstract of judgment, the record of the oral pronouncement controls. We order the clerk’s minute order corrected to conform to the trial court’s oral pronouncement of the mandatory minimum restitution fine of $300 and the corresponding stayed $300 probation revocation fine.

Authority:

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

Appellate Principles, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case: 000287

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the balance of the $200 restitution fine pursuant to section 1465.9(d).

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that 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.

Authority:

PEN 1465.9(d)

Second Holding:

We review questions of statutory interpretation de novo. If the language of the statute contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. The 10-year period starts with the original imposition of the fine and does not restart on resentencing. We modify the judgment to vacate the balance of the restitution fine.

Authority:

PEN 1260

People v. Rogers (2025) 108 Cal.App.5th 340, 354

People v. The North River Ins. Co. (2025) 18 Cal.5th 1, 13

People v. Salstrom (2025) 117 Cal.App.5th 596, 601 review granted 3/11/2026 (S295038)

Amelioration, Jurisdiction, Sentencing

Case: 000286

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court failed to consider the amendments under AB 333 to the elements of gang criminal activity and gang criminal enhancements. The trial court must first, however, determine whether the defendant’s name was on a list prepared by the Department of Corrections and Rehabilitation as being a person whose sentence includes a now-invalid enhancement for a prior prison term. If it is not, then the trial court has no jurisdiction to conduct a hearing under section 1172.75.

First Holding:

A trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. The Legislature may restore jurisdiction to the trial court by enacting a statute allowing defendants with final convictions to petition for resentencing, and indeed, has done so several times.

Authority:

People v. King (2022) 77 Cal.App.5th 629, 636

Second Holding:

The Legislature did not create a right for defendants to petition for resentencing in section 1172.75. Instead, it required the secretary of the CDCR and the county correctional administrator of each county to initiate the resentencing process by identifying those persons in their custody currently serving a term for a judgment that includes an invalid enhancement and providing the name of each person to the sentencing court that imposed the enhancement. Absent action by the CDCR, the trial court lacks jurisdiction to entertain a defendant’s motion for resentencing.

Authority:

People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Cota (2025) 112 Cal.App.5th 1118, 1129-1131, review granted Oct. 1, 2025, S292637 [superior court has jurisdiction to resentence a defendant if the CDCR includes the defendant in a list of eligible inmates but fails to forward the list to the superior court]

Third Holding:

The record before us does not establish that the superior court had jurisdiction to resentence the defendant under section 1172.75. Any action taken without fundamental jurisdiction is void, not simply voidable. Prior to taking any further action on remand, therefore, the court must first determine whether the CDCR in fact placed the defendant’s name on a list of defendants potentially eligible for resentencing.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 71

Fourth Holding:

The full resentencing rule applies to proceedings under section 1172.75. Under this rule, the resentencing court has jurisdiction to modify every aspect of the sentence and may revisit all prior sentencing decisions . In particular, the court may consider any changed circumstances since the original sentencing hearing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 877

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Navarro (2007) 40 Cal.4th 668, 681

Fifth Holding:

The original sentence was based in part on the jury’s finding that the defendant committed the offenses for the benefit of a criminal street gang. Without that finding, his sentence for premeditated and deliberate attempted murder would have been life with the possibility of parole after having served seven years. Because of the gang finding, however, his sentence for attempted murder required that he serve at least 15 years prior to any parole.

AB 333 restricted the circumstances in which gang enhancements under section 186.22 apply. In resentencing proceedings under section 1172.75,the court shall apply any changes in law that reduce sentences, and the defendant argued that in light of the amendments to section 186.22, a retrial on the gang allegation is necessary. The trial court disagreed, concluding the gang enhancement has been found to be true and that a retrial was not warranted.

But AB 333’s substantive amendments to section 186.22 apply retroactively to defendants whose convictions are not final. Even if a defendant’s conviction became final years ago, if his sentence is vacated as a result of subsequent legislation, it becomes nonfinal for purposes of resentencing. Thus, assuming the court had jurisdiction to vacate the defendant’s sentence, he is entitled to benefit from the recent amendments to section 186.22 at resentencing.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388

People v. Padilla (2022) 13 Cal.5th 152, 162