The opinion
Filed 3/4/26 P. v. Wilson CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085924
Plaintiff and Respondent,
(Super. Ct. No. MF008340A)
v.
KIMBERLY AMARA WILSON, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. Chad A. Louie,
Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2008, a jury convicted defendant Kimberly Amara Wilson1 of criminal threats
(Pen. Code, § 422; count 1) and threatening a public official (§ 76, subd. (a)(1); count 2),
and the trial court found true allegations defendant had previously suffered multiple strike
1In prior proceedings, defendant was known as Anthony Lee Wilson.
prior convictions that fall within the meaning of sections 667, subdivisions (c) through
(j), and 1170.12, subdivisions (a) through (e). (Undesignated statutory references are to
the Penal Code.) The jury also found that defendant had served multiple prior prison
terms (§ 667.5, former subd. (b)). In 2009, the court sentenced defendant to 25 years to
life plus four years for the prison prior enhancements on count 1 and the same term on
count 2, which it ordered stayed pursuant to section 654.
In 2023, defendant petitioned for relief pursuant to former section 1171.1 (now
§ 1172.75) to seek dismissal of her prison prior enhancements and resentencing. At
resentencing, the trial court struck defendant’s prison prior enhancements (§ 667.5,
former subd. (b)). It denied defendant’s request to strike any of her strike prior
convictions and resentenced defendant to 25 years to life.
On appeal, defendant argues the trial court abused its discretion in failing to strike
any of her strike priors in light of evidence of her rehabilitation, failing to sentence her to
a second strike sentence on count 2 pursuant to the Reform Act, and by failing to
expressly acknowledge changes to section 654 as a result of the enactment of Assembly
Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518). Relatedly, she argues her
counsel was ineffective in failing to alert the court to the recent changes to section 654.
We previously rejected all of defendant’s contentions including her contention the
trial court erred in failing to automatically resentence her to a second strike sentence on
count 2 under the Reform Act at resentencing. Thereafter, defendant filed a petition for
review with the California Supreme Court. The court granted defendant’s petition and
transferred the matter back to our court with directions to vacate our opinion and
reconsider the matter in light of People v. Superior Court (Guevara) (2025) 18 Cal.5th
838 (Guevara).
We, and the parties, now agree the matter must be remanded to permit the trial
court an opportunity to consider whether defendant is eligible for relief under the penalty
provisions of the Reform Act as to count 2.
2.
FACTUAL AND PROCEDURAL HISTORY
In December 2008, a jury convicted defendant of criminal threats (§ 422; count 1)
and threatening a public official (§ 76, subd. (a)(1); count 2), and the trial court found
true allegations defendant had previously suffered multiple strike prior convictions that
fall within the meaning of sections 667, subdivisions (c) through (j), and 1170.12,
subdivisions (a) through (e). The jury also found that defendant had served multiple prior
prison terms (§ 667.5, former subd. (b)). In 2009, the court sentenced defendant to
25 years to life plus four years for the prison prior enhancements on count 1 and the same
term on count 2, which it ordered stayed pursuant to section 654.
On January 24, 2023, defendant filed a “Motion for Hearing on Resentencing and
Sentencing Statement Pursuant to Penal Code § 1172.75 (Formerly PC § 1171.1)[;] Penal
Code 1385; People vs. Superior Court (Romero) Points and Authorities.” (Some
capitalization omitted.) In it, she asked the court to resentence her by dismissing the
four section 667.5, subdivision (b) enhancements imposed as to counts 1 and 2 and to set
a resentencing hearing pursuant to section 1172.75. Defendant also asked the court to
consider her postconviction behavior “pursuant to [section] 1385” and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 and to strike the section 667, subdivision (e) strike
priors “in the interest of justice.” She asserted she is now 61 years old and “poses a much
smaller threat of reoffending.” She also urged the court to consider all of the submitted
certificates and completion awards she had received while in prison and attached to her
brief. She further contended she is a transgender woman who has “suffered severe
harassment” and “sexual assaults” at the hands of other inmates “because of her gender
dysphoria” and she “suffers unreasonable fear and anxiety because she never knows if
she will be forced to have a cellmate.” She completed rehabilitation classes that she
asserted “will prepare her to be a better citizen upon her release.” She noted she
struggles with chronic pain, has a diagnosed “back condition,” and is in need of surgery
but “has not received the recommended treatment.” She attached to her brief medical
3.
records related to her back condition and a letter from a facility in San Francisco offering
her acceptance into its housing program. She asserted she “poses little threat to society if
she were to be release[d].” And she asked the court to find, “in the interest of justice,”
“that she is not a danger to society and [to] dismiss at least 3 [of] the 667(E) prior[s]” and
resentence her to a term of two years, doubled, for a total of four years, with count 2
stayed pursuant to section 654 because it arises from the same facts as count 1.
The trial court held a hearing on defendant’s petition for relief on March 9, 2023.
At the hearing, defense counsel again asked the court to strike three of defendant’s strike
priors under Romero, noting defendant had “completed a significant body [sic] work with
regard to rehabilitation, works full time [sic] the prison, has taken classes on domestic
violence, classes on anger management, gets supervisory reports that she has participated
well in classes, that she [sic] done more than she needs to do in classes, that she has not
been causing any problem since ‘09.” Defense counsel asserted there was “no violence
done” during the charged offense, and defendant has had an “extremely difficult time” in
prison.
The prosecutor argued the trial court should look to the “factors in aggravation
versus none in mitigation” in the probation report. He asserted there was no “realistic
reason” to strike the strike priors and asserted the section 422 offense was violent in
nature.
The trial court noted, in considering whether to strike one or more of the
four strike priors, it looked “at the defendant’s criminal history from the original
probation report indicating convictions going back to 1981. Trespass, tampering with a
vehicle, being under the influence of a controlled substance, possession of [sic] weapon.”
It discussed the prior strike convictions:
“The first strike is a residential burglary from 1984 where the
defendant was sentenced to 2 years in the Department of Corrections. That
same year the defendant picked up a misdemeanor. The second strike was
in 1986, 2 years later a second residential burglary where the defendant was
4.
sentenced to 2 years in Department of Corrections. A third strike was in
1988, 2 years after that another residential burglary where the defendant
was sentenced to 12 years in the Department of Corrections. Shortly
thereafter—also on that case the defendant violated parole twice, was
discharged, and then continued to commit crimes in 1998, committed … a
felony assault with a deadly weapon, and was granted felony probation,
violated parole in that indication. After the defendant was released from
custody in that case, continued to commit crimes of violence including a
criminal threats case, violating a Court order to commit domestic violence
in 2002, a felony committed to the Department of Corrections for 2 years.
It was also 2 years after that the defendant was convicted of felony evading
arrest and committed to the Department of Corrections for 4 years. Shortly
after being released from custody and shortly after being released from
parole in 2008, one year later, … the defendant again committed crimes of
violence, felony criminal threats in 2009, which the defendant is currently
in prison on.”
The trial court found defendant did not “fall outside the spirit of the [three] strikes
law” in light of defendant’s lengthy criminal history, her “repeated violations of parole
and numerous prison commitments as well as the timing involved in all those cases,” in
that they occurred “consecutively after each other or rather quickly after … defendant is
released from prison.” Rather, “defendant is clearly recidivist.” Accordingly, the court
denied defendant’s request to strike the strikes pursuant to Romero in light of defendant’s
criminal history and the nature of the charges in this case, but it struck the four prison
priors (§ 667.5, former subd. (b)). The abstract of judgment and minute orders reflect
updated sentences of 25 years to life on counts 1 and 2 with the sentence on count 2
stayed pursuant to section 654.
DISCUSSION
I. Resentencing Proceedings Under Section 1172.75
In October of 2021, the Governor signed Senate Bill No. 483 (2021–2022 Reg.
Sess.) (Senate Bill 483), effective on January 1, 2022, which added section 1171.1 to the
Penal Code, subsequently renumbered as section 1172.75. This section declares: “Any
sentence enhancement that was imposed prior to January 1, 2020, pursuant to
5.
subdivision (b) of Section 667.5, except for any enhancement imposed for a prior
conviction for a sexually violent offense … is legally invalid.”
Section 1172.75 establishes a mechanism to provide affected defendants an
avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the
Secretary of the Department of Corrections and Rehabilitation (CDCR) and the
correctional administrator of each county to “identify those persons in their custody
currently serving a term for a judgment” that includes a now legally invalid prior prison
enhancement, and to provide the names of such persons, their dates of birth, and the
relevant case numbers or docket numbers to the sentencing court that imposed the
enhancement. (§ 1172.75, subd. (b).) After the court receives from the CDCR and
county correctional administrator the information included in subdivision (b) of
section 1172.75, “the court shall review the judgment and verify that the current
judgment includes a sentencing enhancement described in subdivision (a),” and if so,
“recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)
When resentencing a defendant under section 1172.75, the court must “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).)
6.
II. The Trial Court Had Jurisdiction to Resentence Defendant
In this appeal, defendant challenges the trial court’s order following the
resentencing hearing. In their initial response to defendant’s arguments on appeal, the
People argued the court lacked jurisdiction to rule on defendant’s motion for resentencing
pursuant to section 1172.75 below; thus, the resulting order is void. Because the People’s
argument implicates whether the court had jurisdiction to enter the challenged order and,
thus, the merits of defendant’s claims on appeal, we address their contention first.
The People asserted, “[I]t appears from the record that [defendant] initiated the
resentencing process under section 1172.75 by filing a motion for resentencing pursuant
to [Senate Bill] 483 on January 24, 2023,” and the trial court lacked jurisdiction to
consider the resentencing request. They contend the “mandated statutory process”—
which requires the Secretary of the CDCR and the county correctional administrator to
identify a defendant as a person in custody serving a term of a judgment that includes a
section 667.5, former subdivision (b) enhancement and then the court to recall and
resentence the defendant—“does not appear to have happened here.” In support of their
contention they rely upon People v. Burgess (2022) 86 Cal.App.5th 375, in which the
trial court denied the defendant’s motion for resentencing pursuant to section 1172.75,
and the Court of Appeal concluded the trial court lacked jurisdiction to adjudicate the
defendant’s motion.
Notably, at the time the parties filed their briefing, records had not yet been filed
in this court to establish whether the Secretary of the CDCR had identified defendant as
an individual eligible for relief in light of Senate Bill 483. However, a subsequently filed
augmented confidential clerk’s transcript establishes the CDCR identified defendant as
potentially eligible for resentencing in 2022 and sent that identification to the trial court,
before the court recalled defendant’s sentence and resentenced her pursuant to
section 1172.75.
7.
As our court has previously held, “Once the trial court received that identification
information from the [CDCR], it had authority over the matter and was statutorily
authorized to act.” (People v. Cota (2023) 97 Cal.App.5th 318, 332–333.) That is, under
section 1172.75, subdivision (b), once the CDCR provided this identification to the trial
court, “it triggered the trial court’s review and resentencing obligations under
section 1172.75, subdivision (b) thereby placing the matter within a statutorily authorized
exception to the general rule that a trial court has no jurisdiction to modify a final
judgment.” (Cota, at p. 332.) And though section 1172.75 “does not authorize a
defendant to seek resentencing on his or her own motion or petition,” the filing of such a
procedurally unauthorized motion did not deprive “the trial court of the jurisdiction
afforded to it by statute to resentence a defendant as mandated by section 1172.75.”
(Cota, at pp. 332, 333.)
Accordingly, we reject the People’s argument the trial court lacked jurisdiction to
recall and resentence defendant pursuant to section 1172.75.
III. Trial Court Did Not Abuse Its Discretion in Declining to Strike the Strike
Priors
Defendant first argues the trial court abused its discretion in declining to strike her
strike priors pursuant to Romero during resentencing. We disagree.
A. Standard of Review and Applicable Law
“ ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To
achieve this end, ‘the Three Strikes law … establishes a sentencing requirement to be
applied in every case where the defendant has at least one qualifying strike, unless the
sentencing court “conclud[es] that an exception to the scheme should be made because,
for articulable reasons which can withstand scrutiny for abuse, this defendant should be
treated as though he actually fell outside the Three Strikes scheme.” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) “[T]he three strikes law not only
8.
establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart
from this norm and requires the court to explicitly justify its decision to do so. In doing
so, the law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (Id. at p. 378.)
A trial court has discretion under section 1385, subdivision (a) to strike prior
felony conviction allegations in cases brought under the Three Strikes law. (People v.
Superior Court (Romero), supra, 13 Cal.4th at pp. 529–530.) In deciding whether to
strike a prior felony conviction allegation, the court must “consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court’s decision to deny a motion to strike prior strike
allegations for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.)
“In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set
aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts
establish that a trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree with it.”
(Carmony, supra, 33 Cal.4th at pp. 376–377.)
“Because the circumstances must be ‘extraordinary … by which a career criminal
can be deemed to fall outside the spirit of the very scheme within which he squarely falls
once he commits a strike as part of a long and continuous criminal record, the
9.
continuation of which the law was meant to attack’ [citation], the circumstances where no
reasonable people could disagree that the criminal falls outside the spirit of the
three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at
p. 378.)
B. Analysis
Defendant argues the resentencing court abused its discretion in denying her
Romero motion. She asserts the court “basically considered [her] rap sheet, but did not
fairly evaluate her worth as a person who for the last decade had expressed remorse about
her criminal lifestyle and sought rehabilitation.” She asserts, her 2007 conviction (from
which she sought relief) qualified as a “serious felony” strike pursuant to section 1192.7,
subdivision (c), but it was not a “violent felony” as that term is used in section 667.5,
subdivision (c), noting “[n]o injuries resulted.” She noted, in her prior direct appeals
from her 2007 conviction, “one appellate judge and two Supreme Court justices appeared
to harbor doubts whether a threat made by an inmate to commit future harm outside the
prison could truly constitute the immediate danger necessary for a criminal threats
conviction.” She also asserted her “ ‘strikes’ all occurred more than 20 years ago,” and
she has served 16 years of her actual sentence. She argues she does not present a danger
to public safety in light of her age (61) and chronic back problems, which confine her to a
wheelchair. She asserts the trial court “ignored the mandate of [section] 1172.75 to take
‘postconviction’ matters into account, including ‘age, time served and physical
condition,’ which show that the original sentence no longer appears ‘in the interest of
justice.’ ”
We cannot conclude the trial court abused its broad discretion in declining to
strike defendant’s prior strike convictions. Here, the court was entitled to consider, as it
did, defendant’s extensive criminal history and the nature of the instant offense, which
supported its ruling. (See People v. Williams, supra, 17 Cal.4th at p. 161.) As the court
10.
noted, defendant’s criminal history dates back to 1981 after which she continued to
repeatedly reoffend in 1983, 1984, 1986, 1988, 1993, 1998, 2002, 2004, and 2007 (the
current offense). Four of her prior convictions were for strike offenses, namely,
residential burglaries and a prior criminal threat offense. Though there were years
between the instant offense and the strike priors, defendant did not refrain from criminal
activity during that time but rather continued to reoffend. She also repeatedly violated
parole. And a letter from the probation department filed on the date of the resentencing
hearing states defendant was convicted of yet another offense in 2011—battery by an
inmate on a nonconfined person (§ 4051.5)—while incarcerated for the current offense.
Furthermore, contrary to defendant’s suggestion, the record does not establish the court
disregarded her rehabilitative efforts. (See People v. Myers (1999) 69 Cal.App.4th 305,
310 [“The court is presumed to have considered all of the relevant factors in the absence
of an affirmative record to the contrary”].) Rather, after explaining its ruling, the court
told defendant it “appreciate[d] the work” she had done, but this did not change its
conclusion she did not fall outside of the spirit of the Three Strikes law.
On the record before us, we cannot say the trial court’s conclusion that defendant
did not lie outside of the intent of the Three Strikes law was so irrational or arbitrary that
no reasonable person could agree with it. (See People v. Stone (1999) 75 Cal.App.4th
707, 717 [no abuse of discretion in refusing to vacate one of defendant’s strikes because
defendant “is an exemplar of the ‘revolving door’ career criminal to whom the
Three Strikes law is addressed”].) Accordingly, we cannot conclude it abused its
discretion in refusing to strike defendant’s prior strikes.
IV. Trial Court Did Not Abuse Its Discretion in Setting the Principal Term but
Remand is Necessary for The Court To Consider Whether Defendant Is
Entitled to Resentencing Under the Penalty Provisions of the Reform Act
Defendant next argues the trial court failed to consider Assembly Bill 518 or the
Three Strikes Reform Act of 2012 (the Act or Reform Act) in resentencing her and, to the
11.
extent the issue was forfeited based upon her counsel’s failure to raise it below, her
counsel provided ineffective assistance on that basis. She asserts the Three Strikes law
was amended in 2012 to provide, regardless of a defendant’s prior strikes, “the state
generally may not seek an indeterminate life sentence if the current crime amounts to
neither a ‘serious’ nor ‘violent’ felony,” citing sections 1170.12, subdivision (c)(2)(C),
and 667, subdivision (e)(2)(C). She also contends the trial court abused its discretion in
failing to take into account Assembly Bill 518’s changes to section 654 in designating the
principal term.
A. Applicable Law
1. Assembly Bill 518
Before the passage of Assembly Bill 518, section 654, subdivision (a) provided
that, when a defendant committed an act or omission punishable by two or more
provisions of the law, the trial court must impose sentence under the provision that
provides for the longest potential term of imprisonment. (Former § 654, subd. (a);
Stats. 1997, ch. 410, § 1.) Assembly Bill 518, effective January 1, 2022, amended
section 654, subdivision (a) to permit an act or omission punishable under two or more
provisions of law to “be punished under either of such provisions.” (§ 654, subd. (a), as
amended by Stats. 2021, ch. 441, § 1.) Thus, under newly amended section 654, a trial
court is no longer required to punish the defendant under the longest possible term of
imprisonment when multiple offenses are based on the same act or omission. (People v.
White (2022) 86 Cal.App.5th 1229, 1236.) Rather, the trial court now has “ ‘discretion to
impose and execute the sentence of either term, which could result in the trial court
imposing and executing the shorter sentence rather than the longer sentence.’ ” (Ibid.;
see People v. Mani (2022) 74 Cal.App.5th 343, 379.)
12.
2. Three Strikes Reform Act of 2012
“On November 6, 2012, the California electorate approved Proposition 36,
otherwise known as the Three Strikes Reform Act of 2012 …, which became effective
the next day. Before the Act’s passage, the ‘Three Strikes’ law provided that a recidivist
offender with two or more qualifying strikes was subject to an indeterminate life sentence
if the offender was convicted for any new felony offense. [Citation.] The Act amended
the Three Strikes law so that an indeterminate life sentence may only be imposed where
the offender’s third strike is a serious and/or violent felony or where the offender is not
eligible for a determinate sentence based on other disqualifying factors. (… §§ 667,
subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)” (Teal v. Superior Court (2014) 60 Cal.4th
595, 596.) The California Supreme Court subsequently clarified that “when a court
resentences a third strike defendant …, the presence of a current offense that is serious or
violent does not disqualify an inmate from resentencing with respect to a current offense
that is neither serious nor violent.” (People v. Johnson (2015) 61 Cal.4th 674, 680.)
“In the Reform Act, the voters also established a procedure for ‘persons presently
serving an indeterminate term of imprisonment’ under the prior version of the
Three Strikes law to seek resentencing under the Reform Act’s revised penalty structure.
(… § 1170.126, subd. (a).) Under section 1170.126, ‘within two years after the effective
date of the act … or at a later date upon a showing of good cause,’ such persons can file a
petition for a recall of sentence before the trial court that entered the judgment of
conviction. (Id., subd. (b).) If the petitioner would have qualified for a shorter sentence
under the Reform Act version of the law, taking into consideration the disqualifying
factors (§ 1170.126, subds. (e), (f)), section 1170.126 provides that he ‘shall be
resentenced pursuant to [the Reform Act] unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk of danger to public
safety’ (id., subd. (f)). In exercising this discretion, the court may consider the
defendant’s criminal conviction history, the defendant’s disciplinary record and record of
13.
rehabilitation while incarcerated, and ‘[a]ny other evidence the court … determines to be
relevant.’ ” (People v. Conley (2016) 63 Cal.4th 646, 653 (Conley).)
In Conley, the California Supreme Court rejected the defendant’s contention that
he and others whose judgments were not final as of the effective date of the Reform Act
were entitled to automatic resentencing under the revised penalty provisions of the Act.
(Conley, supra, 63 Cal.4th at pp. 657, 659.) The Conley court reasoned, “[T]o confer an
automatic entitlement to resentencing under these circumstances would undermine the
apparent intent of the electorate that approved section 1170.126: to create broad access
to resentencing for prisoners previously sentenced to indeterminate life terms, but subject
to judicial evaluation of the impact of resentencing on public safety, based on the
prisoner’s criminal history, record of incarceration, and other factors.” (Id. at p. 659.)
The Conley court further explained, “the nature of the [Reform Act’s] recall mechanism
and the substantive limitations it contains call into question the central premise
underlying the [In re] Estrada [(1965) 63 Cal.2d 740] presumption,” namely, that the
lawmaking body “categorically determined that ‘imposition of a lesser punishment’ will
in all cases ‘sufficiently serve the public interest.’ ” (Conley, supra, 63 Cal.App.4th at
p. 658.) Rather, instead of mandating lesser punishment in all cases, voters conditioned
relief on a judicial assessment of the risk that resentencing would pose to public safety.
(Ibid.; § 1170.126; accord, People v. DeHoyos (2018) 4 Cal.5th 594, 601–602.)
Recently, in Guevara, supra, 18 Cal.5th 838, the California Supreme Court
granted review to consider whether the revised penalty provisions of the Reform Act may
constitutionally apply at a resentencing pursuant to section 1172.75 of a nonserious,
nonviolent third strike offender. (Guevara, at p. 854.) In Guevara, the defendant was
sentenced in 2009 to an indeterminate term of 28 years to life following his third strike
conviction, as then required by the Three Strikes law. (Guevara, at p. 849.) In 2023,
after the passage of Senate Bill 483, the defendant was resentenced pursuant to
section 1172.75 as a result of his now-invalid prior prison term enhancements. (Guevara,
14.
at p. 850.) The trial court struck the prison prior enhancements and resentenced the
defendant on his third strike offense according to the Reform Act to a determinate term of
eight years. (Ibid.) The Court of Appeal granted the People’s request for a temporary
stay and issued an order to show cause. (Id. at p. 854.) The Court of Appeal then
reversed the judgment, concluding the trial court’s interpretation of section 1172.75
unconstitutionally amended the Reform Act. (Guevara, at p. 854.) The Supreme Court
granted review. (Ibid.)
The Guevara majority held a defendant is entitled to a full resentencing pursuant
to section 1172.75, including resentencing pursuant to the revised penalty provisions of
the Reform Act, provided that he or she can satisfy the substantive eligibility criteria
established in section 1170.126. (Guevara, supra, 18 Cal.5th at p. 878.) Accordingly,
the Guevara court reversed the judgment of the Court of Appeal and ordered the matter
remanded to the trial court for it to determine whether resentencing “pursuant to the
revised penalty provisions of the Reform Act would ‘pose an unreasonable risk of danger
to public safety.’ ” (Ibid.) If so, the court was directed to “reimpose an indeterminate
term.” (Ibid.) If not, the court was directed to resentence the defendant pursuant to the
revised penalty provisions of the Reform Act. (Guevara, at p. 878.)
In concluding the revised penalty provisions of the Reform Act apply during a
section 1172.75 resentencing, provided a defendant satisfies the substantive eligibility
criteria established in section 1170.126, the Guevara majority found the language of
section 1170.126 and section 1172.75 could be harmonized. (Guevara, supra, 18 Cal.5th
at pp. 869–870, 875.) The court noted, “[t]here can be no question that the voters who
enacted the Reform Act were focused on reforming Three Strikes sentencing without
undermining public safety.” (Id. at p. 863.) “[S]ection 1170.126, subdivision (k)
nonetheless guarantees that defendants entitled to seek relief under section 1170.126 may
access ‘rights or remedies otherwise available,’ ” undermining a conclusion that the
Reform Act was the exclusive means to obtain sentencing relief. (Id. at pp. 859, 863)
15.
The Guevara court held “[c]onstruing the discretionary public safety determination of
section 1170.126 as applicable at a section 1172.75 resentencing ‘ “ ‘ “ ‘maintain[s] the
integrity of both statutes,’ ” ’ ” ’ such that ‘ “ ‘ “ ‘the two may stand together.’ ” ’ ” ’ ”
(Id. at p. 865.)
The Guevara majority further reasoned section 1172.75’s instruction to apply
“ ‘changes in law that reduce sentences’ ” is “ambiguous” in that it “does not specify how
to determine the relevant ‘change[s] in law’ in the context of the Three Strikes law’s
parallel prospective and retrospective provisions.” (Guevara, supra, 18 Cal.5th at
p. 867.) Given this ambiguity, “and the constitutional questions raised by not
incorporating section 1170.126’s substantive requirements,” the Guevara majority
concluded “the case to incorporate the public safety exception is ‘not only plausible, but
compelled by the canon of constitutional avoidance.’ ” (Id. at p. 868.) That is,
“construing the Reform Act’s substantive limitations as operational through
section 1172.75’s instruction to apply relevant ‘changes in law’ harmonizes the
two statutes and renders section 1172.75 ‘ “free from doubt as to its constitutionality.” ’ ”
(Id. at p. 869.) Guevara clarified that, “[r]esentencing [pursuant to the Reform Act] is
not ‘automatic’ as in Conley because … [the defendant] must satisfy the substantive
requirements of section 1170.126 .…” (Id. at p. 861.) The Guevara court further held,
“[h]armonization does not require that section 1172.75 mirror the nonsubstantive order of
operations relevant to defendants pursuing relief through section 1170.126 petitions.”
(Id. at p. 870.) Rather, “[s]ection 1170.126’s technical processes are inapplicable at a
resentencing pursuant to other mechanisms, like section 1172.75, which have separate
procedural requirements that defendants must fulfill.” (Ibid.)
B. Analysis
In her original briefing, defendant argued the trial court abused its discretion by
failing to apply the amendments to the Three Strikes law pursuant to the Three Strikes
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Reform Act and Assembly Bill 518’s changes to section 654 at resentencing. She argued
these amendments were not in effect when she was originally sentenced and they are
“ ‘changes in the law that reduce sentences and provide for judicial discretion’ ” that the
court was required to implement at the resentencing hearing pursuant to section 1172.75,
subdivision (d)(2). She asserted her count 2 conviction for threatening a public official
pursuant to section 76 is not a “violent” or “serious” felony as defined in section 667.5,
subdivision (c) or section 1192.7, subdivision (c). Accordingly, she argued, there was no
“basis for an indeterminate sentence” as to that count under the Reform Act. She also
argued the court should have held a hearing on whether count 2, rather than count 1,
should have been designated the principal count, and the failure to do so violated “her
ameliorative rights under the new law.” If the issue is deemed forfeited, defendant
asserted her counsel provided ineffective assistance by failing to alert the court to
Assembly Bill 518’s amendments to section 654 that permitted it to designate the
sentence on count 2 as the principal term.
After the matter was transferred back to our court and our previous opinion was
vacated in light of Guevara, the parties filed supplemental briefing in which they both
now agree the matter must be remanded for the trial court to consider whether defendant
should be resentenced on count 2 pursuant to the penalty provisions of the Reform Act.
Here, a violation of section 76, subdivision (a) is not defined as a serious and/or
violent felony by section 667.5, subdivision (c) or section 1192.7, subdivision (c).
Accordingly, pursuant to Guevara, we conclude remand is appropriate for the trial court
to determine whether defendant meets the substantive qualifications for relief pursuant to
the penalty provisions of the Reform Act. That is, on remand the court should consider
“pursuant to the revised penalty provisions of the Reform Act [if defendant] would ‘pose
an unreasonable risk of danger to public safety.’ ” (Guevara, supra, 18 Cal.5th at
p. 878.) If the court determines that resentencing defendant pursuant to the revised
penalty provisions of the Reform Act would “ ‘pose an unreasonable risk of danger to
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public safety,’ ” the court shall reimpose an indeterminate term on count 2. (§ 1170.126,
subds. (f)–(g).) If the court does not determine that resentencing defendant would “ ‘pose
an unreasonable risk of danger to public safety,’ ” and defendant is otherwise eligible for
relief under the Reform Act, the court shall resentence defendant on count 2 pursuant to
the revised penalty provisions of the Reform Act. (§§ 1170.126, subds. (f)–(g), 1170.12,
subd. (c)(1), (2)(C), 1172.75, subd. (c).). Pursuant to the full resentencing rule, the court
may also exercise its sentencing discretion—including with regard to which sentence to
stay pursuant to section 654—in light of any changed circumstances. (See People v.
Buycks (2018) 5 Cal.5th 857, 893.)
DISPOSITION
The trial court’s resentencing order is reversed and the matter is remanded for a
new resentencing hearing consistent with this opinion.
PEÑA, Acting P. J.
WE CONCUR:
MEEHAN, J.
HARRELL, J.
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