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When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate

People v. Monroe (Cal. Ct. App., Nov. 16, 2022, No. A164777) 2022 WL 16957169, at *1

Summary: In 2005, Monroe was sentenced to a 31 year four month prison term, which term included seven enhancements: three firearm enhancements totaling 12 years eight months, three one-year prior prison term enhancements, and a five-year prior serious felony enhancement. In 2020, Monroe filed a petition for relief under 2017 legislation granting the trial court discretion to strike the firearm enhancements. In 2021 legislation provided for resentencing to strike the one-year prior term enhancements, Monroe filed a second petition seeking relief under that statute. The trial court resentenced Monroe and struck the three one-year enhancements, but concluded it was without jurisdiction to strike the firearm enhancements. Monroe appealed claiming that he is also eligible for relief under 2018 legislation granting the trial court discretion to strike the five-year prior serious felony enhancement. The Court of Appeal concluded that Monroe is eligible for relief for both the firearm enhancements and the prior serious felony enhancement, and reversed and remanded for resentencing.

Senate Bill No. 483

Senate Bill No. 483 added section 1171.1 to the Penal Code (later renumbered as section 1172.75). Section 1172.75, subdivision (a) provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense … is legally invalid.” (§ 1172.75, subd. (a).) Once the California Department of Corrections and Rehabilitation identifies those persons “currently serving a term for a judgment that includes an enhancement described in subdivision (a)” to the sentencing court, “the court shall recall the sentence and resentence the defendant.” (§ 1172.75, subds. (b) & (c).)

The resentencing “shall result in a lesser sentence than the one originally imposed … unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).) In resentencing, “[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) “Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1172.75, subd. (d)(4).) The court “shall appoint counsel” for the resentencing. (§ 1172.75, subd. (d)(5).)

Monroe was entitled to resentencing under section 1172.75, and the plain terms of subdivision (d)(2) required that at that resentencing, the trial court “shall apply … any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)

Senate Bills Nos. 620 and 1393

Senate Bill No. 620

In 2017, the Legislature passed Senate Bill No. 620, granting trial courts the discretion to strike firearm enhancements imposed under section 12022.53 “in furtherance of justice” under section 1385.

Senate Bill No. 1393

Senate Bill No. 1393  took effect on January 1, 2019 and grants trial courts discretion to strike five-year serious felony enhancements (§ 667, subd. (a)(1)) under section 1385 “in furtherance of justice.”

Senate Bill No. 483 assumes the defendant’s conviction is final because it provides for recall of the sentence and resentencing. (See People v. Cepeda (2021) 70 Cal.App.5th 456, 464, [concluding that resentencing under section 1170, subdivision (d)(1) allows the trial court to apply Senate Bill No. 1393 to judgments that are already final even though defendant could not “fil[e] his own Senate Bill [No.] 1393 motion in the trial court”].) Senate Bill No. 620—like Senate Bill No. 1393—does not apply independently to judgments that are final, but applies once resentencing is triggered by Senate Bill No. 483.

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.  By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements. Section 1172.75 subdivision (d)(1) creates a presumption that the resentencing “shall result in a lesser sentence than the one originally imposed,” subdivision (d)(3) expressly requires the court to consider “post conviction factors, including … evidence that reflects that circumstances have changed since the original sentencing,” and subdivision (d)(4) guides the trial court in selecting among the lower, middle, and upper term on each count.

Monroe was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of “any other changes in law that reduce sentences or provide for judicial discretion,” in particular the changes made by Senate Bill Nos. 620 and 1393.  Remand for a full resentencing in compliance with section 1172.75 is necessary.

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