The Court of Appeal held that the trial court’s application of the People v Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 533 factors to what it considered “undisputed or clearly established . . . facts of this case” involved the prohibited weighing of evidence and the exercise of discretion at the prima facie stage. The court further held that the trial court had no valid basis for finding appellant was ineligible for relief as a matter of law because the special-circumstance finding was made before Banks and Clark. Thus, the court reversed the order summarily denying appellant’s 1170.95 petition for resentencing.

A153332 [Unpublished Opinion | Panel Attorney Janice Lagerlof] The Court of Appeal reversed (subject to retrial) the true finding on the criminal street gang enhancement in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.), which, among other things, amended Penal Code section 186.22 by redefining key terms and requiring additional elements to establish a criminal street gang enhancement. The Court therefore remanded the matter and, upon remand, directed the trial court to also strike: the 75-year-to-life term (Pen. Code, § 667, subd. (e)(2)(A)(i)), finding that the Three Strikes Law excludes LWOP sentences from being doubled or tripled; (2) one of two five-year prior serious felony enhancements (Pen. Code, § 667, subd. (a)) because the convictions on which those enhancements rested were not brought and tried separately; (3) both of the three-year prior prison term enhancements (Pen. Code, § 667.5, subd. (a)), finding the same prior convictions cannot serve as the basis for both prior serious felony enhancements (§ 667) and the prior prison term enhancements (§ 667.5); and (4) the 45-year minimum parole eligibility term (Pen. Code, § 186.22, subdivision (b)(5)) because appellant was sentenced to life without parole. Finally, the court directed the trial court to determine whether to exercise its discretion and strike the firearm enhancement.

The Court of Appeal held that appellant’s enhancement under Penal Code section 667.5, subdivision (a) must be stricken because none of the offenses appellant committed after the prison prior offense is a “violent” felony.  The Court also rejected the A.G’s request that, on remand, the prosecution be allowed to withdraw from the plea because striking the enhancement does not deprive the prosecution of the benefit of their bargain when the plea agreement did not specify a specific prison term. Finally, the court held that appellant was entitled to resentencing under Senate Bill No. 567, which amended Penal Code section 1170 and limits the court’s ability to impose a sentence exceeding the middle term.  

The Court of Appeal remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended Penal Code section 1170 and limits the court’s ability to impose a sentence exceeding the middle term. The A.G. conceded retroactivity.

The Court of Appeal remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended Penal Code section 1170, subd. (b)(6), which now imposes a presumption that when the law specifies three possible terms, the court shall impose the lower term where, as relevant here, the defendant was a youth or experienced psychological, physical, or childhood trauma and those factors contributed to the commission of the offense. The A.G. conceded retroactivity.

[Published Opinion] The Court of Appeal held that Proposition 47 applies to mail-theft convictions under Penal Code section 530.5, subdivision (e), and that such convictions must be re-designated to petty theft.  

The Court of Appeal held that appellant was entitled to remand for resentencing under Senate Bill No. 567, which requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury or admitted by the defendant. In this case, the Attorney General conceded that SB 567 applies retroactively.  

The Court of Appeal accepted the Attorney General’s concession to appellant’s argument that Senate Bill 567’s amendments to Penal Code section 1170, subdivision (b) are retroactive, and remanded the matter for resentencing. At resentencing, the Court noted that appellant may also “urge the trial court to apply ameliorative legislation signed into law during the pendency of this appeal, including but not limited to Assembly Bill No. 518 (2021–2022 Reg. Sess.) and Assembly Bill No. 124 (2021–2022 Reg. Sess.).

Finding the recent amendment to Penal Code section 1203.1, subdivision (a) (Assembly Bill No. 1950 (2019-2020 Reg. Sess.)) applies retroactively, the Court of Appeal ordered that appellant’s probation be reduced from five years to three years (not one year because appellant’s specific offense designated a minimum probation length of three years).

The Court of Appeal remanded the case for reconsideration of various probation conditions that required appellant to enroll in and complete various assessments and treatment programs “if required by the Probation Officer.” According to the Court, the use of the “if required by the probation officer” language improperly granted to “the probation officer unfettered authority to decide in the first instance whether [appellant] should be required to participate in multiple treatment programs and/or mental health and drug and alcohol assessments, not merely to select a particular program that has been ordered by the court.” The Court further held that, upon remand, the trial court must comply with AB1950, which limited the probation term for felony offenses to two years (except in cases of certain violent felonies), in imposing any period of probation. Finally, because the Court was remanding the matter for resentencing, the Court also directed the trial court to entertain any inability-to-pay objection.

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