People v. Cervantes (2025) 115 Cal.App.5th 825 [338 Cal.Rptr.3d 309], as modified on denial of reh’g (Nov. 24, 2025)
Summary: Cervantes filed a motion for “rehearing” of denial of a petition for sentence recall and resentencing, based on statutory amendment adding convictions for attempted murder to crimes for which resentencing was permissible. The Superior Court, Los Angeles County denied the petition, finding that petitioner did not make a prima facie showing for sentence recall and resentencing and concluding that it lacked power to correct Cervantes’ unauthorized sentence. Cervantes should have been sentenced solely for crime of attempted murder, without a consecutive sentence of 25 years to life based on firearm enhancement. Cervantes appealed .
The Court of Appeal held that:
1 petitioner made prima facie showing of entitlement to sentence recall and resentencing;
2 petitioner was not required to file a habeas petition, to obtain correction of apparently unauthorized sentence; and
3 in furtherance of interests of justice, claim of apparently unauthorized sentence could be presented to trial court on remand, despite former statutory restrictions on resentencing.
Reversed and remanded with instructions.
Procedural History
Cervantes and codefendant Estrada were charged with attempted murder. The information included special allegations that Cervantes was a principal, and Estrada personally discharged a handgun causing great bodily injury (§ 12022.53, subds. (b), (d) & (e)); the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22); and the firearm was discharged from a motor vehicle (§ 12022.55). The jury found Estrada and Cervantes guilty of attempted murder and the special allegations were true. They were each sentenced to 42 years to life. On appeal, the gang enhancement was stricken, and Cervantes’s sentence was reduced to 32 years to life.
On February 10, 2021, Cervantes filed a petition for resentencing. (§ 1170.95 [later renumbered section 1172.6].) The trial court denied the petition because the statute at that time (section 1170.95) did not include resentencing for attempted murder convictions.
On January 20, 2022, Cervantes filed a request for reconsideration of the denial of his section 1172.6 petition. On July 12, 2022, the trial court denied the petition finding that Cervantes had not established “a prima facie case for relief.”
On November 2, 2022, Cervantes filed a motion for “rehearing” on the denial of his petition for resentencing, claiming he was entitled to resentencing because: 1) he “was held responsible because he was allegedly a gang member and members of the gang are responsible for the acts of other gang members (at that time); and 2) he was not responsible for the acts of his codefendant.
At the January 2023 hearing, the trial court noted that counsel for Cervantes had discovered a sentencing error that had never been corrected. The court found that it appeared that Cervantes “should have been sentenced solely upon the substantive crime of attempted murder.” Cervantes should not have been sentenced to 32 years to life. The court found it did not have the ability to correct the sentence because Cervantes filed a section 1172.6 petition. “I think I would be able to [correct the sentence] if I granted the defendant’s petition under [section] 1172.6, but I do not have that ability since he’s not entitled to be resentenced under [section] 1172.6. He’d be entitled to be resentenced under a writ of habeas corpus or some other postconviction relief, but I don’t have the jurisdiction to do so on my own even though it’s a legitimate issue.”
Discussion
“Our Supreme Court stated 50 years ago that ‘the law is well settled’ that had a court attempted to ‘impose a sentence not authorized by law,’ the sentence ‘would have been subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court’ and would present ‘no bar to the imposition of a proper judgment thereafter ….’ ” (People v. Codinha (2023) 92 Cal.App.5th 976, 988.) “[T]he Supreme Court has repeatedly acknowledged an unauthorized sentence is subject to correction ‘at any time.’ ” (Ibid.)
The trial court acknowledged that there was a sentencing error leading to Cervantes serving a longer sentence than he should have received. It found: 1) Cervantes was previously convicted of attempted murder “plus a firearm enhancement and a gang enhancement”; 2) the trial court initially used “the gun use as well as the gang enhancement” to impose the sentence; 3) after an appeal, the trial court was ordered “to strike the gang enhancement and resentence the defendant”; and 4) the trial court resentenced Cervantes but it “kept the gun use allegation under [section] 12022.53(d) intact.”
The trial court further found, “Cervantes was not the actual shooter. He was not the person who used the firearm. The gang enhancement is what allowed the court to utilize the gun use enhancement following the resolution of the case at trial. But if a gang enhancement was stricken …, the court could no longer impose the gun use allegation vicariously. It doesn’t apply under subdivision (e)(1) of [section] 12022.53(d). The defendant should have been sentenced solely upon the substantive crime of attempted murder.”
The trial court then ruled it did not have the authority to correct the sentence even if Cervantes was serving a much longer sentence than he should have been serving. But a sentence is “legally unauthorized” where the defendant is sentenced to the wrong term. Trial courts have the inherent authority to correct unauthorized sentences at any time the issue is presented to the court.
The trial court ruled Cervantes had to file a habeas petition to obtain resentencing. But here ere there was a pending section 1172.6 petition before the court, and a habeas petition is not necessary if the sentence it imposed is unauthorized. Moreover, a “pleading should be judged by the substance of its allegations rather than its label.” (Malott v. Summerland Sanitary Dist. (2020) 55 Cal.App.5th 1102, 1110.) Based on its allegations, the court should have treated his motion for rehearing as a request for habeas relief or a “motion to vacate” a void sentence.
Independent from section 1172.1, the trial court had authority to correct the sentence if it was unauthorized. Cervantes has a right not to be subject to excessive punishment. A “ ‘right but no expeditious and adequate remedy … is an unconscionable situation which a court of justice cannot tolerate.” (People v. Picklesimer, supra, 48 Cal.4th at p. 339, 106 Cal.Rptr.3d 239, 226 P.3d 348; People v. Nguyen, supra, 109 Cal.App.5th at pp. 1143-1144, 331 Cal.Rptr.3d 163.)
Disposition
The order was reversed and the case remanded to the trial court with instructions to conduct a prompt resentencing hearing. If the court finds the sentence is unauthorized, it must correct it.
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