First District Panel Victories

A jury found appellant guilty of, among other things, two counts of first-degree murder and found true the special circumstance that he was convicted of more than one murder within the meaning of Penal Code section 190.2, subdivision (a)(3). The trial court sentenced appellant to life without the possibility of parole for the special circumstance of multiple murders in addition to two terms of 25 years to life for the murder convictions. The Court of Appeal held that, since section 190.2 applied, life without the possibility of parole is the only authorized punishment; therefore, the imposition of two additional terms of 25 years to life is unauthorized. The Court vacated the sentence and remanded the matter for a full resentencing.

The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. The A.G. agreed the new version of section 1170 applies retroactively and that the matter should be remanded for resentencing “[b]ecause the trial court may have relied on factors that were neither admitted by [appellant] nor found to be true beyond a reasonable doubt.”

The Court of Appeal reversed the order denying appellant’s petition for resentencing. The Court held that appellant was eligible for relief under Senate Bill 1393 (2017–2018 Reg. Sess.), which afforded trial courts discretion to strike prior serious felony enhancements (Pen. Code, § 667, sub. (a)(1)), because his judgment was not final when the statute became effective, and any objection to the timeliness of appellant’s petition was forfeited by the prosecution’s failure to object below. Although the court recognized that nether Penal Code sections 1170, subdivision (d)(1) or 1170.03 authorize defendants to self-petition for resentencing, any objection to the form of the petition was forfeited by the prosecution’s failure to object below and the denial of appellant’s petition without the provision of section 1170.03 procedures constituted error.

[Published Opinion] The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which, among other things, created a presumption in favor of the middle term and requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. Here, the Court found that the trial court relied on several aggravating circumstances that were neither admitted by appellant nor found to be true beyond a reasonable doubt. The Court also rejected the A.G.’s harmless error argument.