## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. LUIS RAMON MANZANO ARELLANO, Defendant and Appellant.

S277962

Sixth Appellate District
H049413

Santa Clara County Superior Court

159386

July 11 , 2024

Justice Evans authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Groban, and Jenkins concurred.1 PEOPLE v. ARELLANO

S277962

Opinion of the Court by Evans, J.

Penal Code se ction 1172.6 1 provides a n opportunity for
criminal defendants who were convicted of murder under either

a natural and probable consequences theory or ( in some
circumstances ) under a felony

- murder theory

— and who could not be convicted of murder under the law as it currently
stands

— to file a petition to be resentenced. A successful petitioner is entitled t o have the murder “conviction, and any allegations and enhancements attached to the conviction ” vacated and to be “resentenced on the remaining charges.” ( Id

., subd. (d)(3).) But a successful petitioner who was charged with murder “generically

, and the t arget offense was not charged” is
entitled to have the murder conviction “redesignated” as “the target offense” of the natural and probable consequences theory

— or the “ underlying felony” of the felony murder

— and

to be resentenced accordingly. ( Id ., subd. (e).) The Attorney
General asks us to hold that in resentencing a successful petitioner under the latter subdivision

, a superior court has the “flexibility” to a dd to the redesignated conviction uncharged and

unproven offense

- specific sentencing enhancements or allegations it deems “appropriate

. ”

W e hold that the limited resentencing procedure under
section 1172.6 , subdivision (e) does not permit a court to impose

1 A ll further undesignated references are to this Code

.PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

2 a sentencing enhancement or allegation un less the enhancement or allegation was pled and either proven to the trier of fact or by the defendant’s admission in open court

. (See § 1170.1, subd. (e).) We theref o re a ffirm the judgment of the Court of Appeal to the extent it ordered stricken a firea rm use enhancemen t that was neither found true by the jury nor admitted by defendant

. I. B ACKGROUND In January 1992, J. Sacramento Benitez was killed during

a residential burglary and attempted robbery. T he Santa Clara County District Attorney filed a felony complaint charging
defendant Luis Ramon Manzano Arellano and two codefendants, Arturo Mendoza and Jesus Antonio Mandujano

, with Benitez’s murder ( § 187, subd. (a) ) , attempted robbery (§§ 664
, 211, 212.5, subd. (a) )

, and fir st degree burglary (§§ 459

, 460, subd. (a) )

. The murder and attempted robbery counts further alleged that each defendant personally used a firearm during the commission of th os e offense s . (§ § 1203.06, 12022.5, subd. (a) .) Prior to the preliminary hearing, Arellano agreed to plead guilty to second degree murder under certain condition s , including that the firearm use enhancement would be stricken and the robbery and burglary charges dismissed. The court
sentenced Arellano t o 15 years to life, concurrent to a sentence previo usly imposed in a different case , and dismissed the robbery and burglary counts as well as the firearm
enhancement

. 2

2 We rely largely on the Court of Appeal’s factual and procedural history. ( People v. Arellano (2022) 86 Cal.App.5th 418, 423

– 428 (

Arellano ) ; see Cal. Rules of Court, rule 8.500(c)(2).)PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

3 In October 2020, Arellano , through counsel, filed the

current petition for resentenci ng

. The district attorney initially opposed the petition, arguing that Arellano ’ s “bare

- bones declaration of eligibility is insufficient pleading for a prima facie

case , ” but after the court issued an order to show cause, announced that “the People will be stipulating to a resentencing.” In light of the district attorney ’ s concession, the
court vacated Arellano ’ s murder conviction, stayed the execution of that vacatur pending resentenci ng, and set the matter for further proceedings to redesignate the charge or charges upon which Arellano would be resentenced.
At a hearing held on April 26, 2021, defense counsel agreed that Arellano “ should be resentenced on the target
offense” and offere d no objection to the district attorney ’ s request that Arellano be resentenced on the originally charged attempted robbery and the firearm use enhancement attached
to it

. T he trial court confirmed the parties ’ agreement to

resentenc e Arellano on the attem pted robbery offense and the firearm enhancement and referred the matter to the probation department for a presentencing report. The court explained its understanding of the impending resentencing under then

current section 1170.95 (now § 1172.6) as follows: “[T]his was a
case in which Counts 2 [attempted robbery] and 3 [first degree burglary] did reflect what might be considered target offenses
for the murder crime in Count No. 1. Those counts were
submitted for dismissal. The defendant never pled to nor admitted them. So this is not a situation where statutorily under [section] 1170.95 I ’ m sentencing on the, quote, remaining

counts. [¶] What I will be doing is by the agreement of the parties redesignating Count No. 1 to the violations of [secti ons]PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

4 664/211/212.5 subdivision (a) with the enhancement under 12022.5 subdivision (a).”
The district attorney’s resentencing brief asserted that

“ [b] ased on information provided by witnesses, detectives were able to identify the suspects, along with a four th participant who was killed shortly after the crime. Defendants Jesus Mandujano and Arturo Mendoza told police that Petitioner Arellano was present during the robbery/murder. [Arellano] told police he knew other individuals were planning to commit the robbery, but that he did not participate. [Arellano] provided several conflicting statements regarding his whereabouts at the time of
the murder.” In addition, the district attorney noted the defense’s agreement as to the “underlying felony committed by [Arellano]” (i.e., attempted robbery) and “that an arming enhancement pursuant to Penal Code section 12022.5 be imposed.”
At this point in the proceedings, defense counsel objected

to the inclusion of the firearm enhancement

. Counsel argued
that former section 1170.95, “[s]ubdivision (e) provides that Mr.
Arellano ’ s conviction is to be redesignated as the target offense or underlying felony for resentencing purposes, but it says nothing about adding enhancements that were not previously
admitted or found true by a trier of fact.” C ounsel further argued that including the firearm enhancement would violate
Arellano ’ s constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466

. At the May 24, 2021, hearing on redesignation and resentencing, counsel reiterated her view the court lacked authority to impose the firearm enhancement and asserted “ it
isn ’ t clear in the evidence

. . . as to whether or not Mr. ArellanoPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

5 possessed a firearm.” The court disagreed, reasoning it had the

aut hority to impose the previously dismissed enhancement and finding there was “evidence in the record” to “ su ggest ” Arellano was armed: “[G]iven the fact that there were Penal Code Section 12022.5 subdivision (a) enhancements attached to .

. . counts agains t Mr. Arellano in this case, given the fact that the Court is going to move forward and resentence him only on .

. . what was previously Count 2 [attempted robbery], even though I think [ People v. Watson (2021) 64 Cal.App.5th 474] would give
the Court the ability to sentence him for the burglary as well, given the fact that this was a negotiated disposition in which the firearm enhancement was stricken as opposed to .

. . a not true finding, and given what the Court does have available to it in
the record o f conviction regarding the circumstances of the underlying offenses, and it is unfortunate that the stipulation is no longer something the parties can agree upon, but I am going to move forward with resentencing on the attempted robbery charge with the arm ing allegation pursuant to [section] 12022.5 subdivision (a ).”

Th e “ evidence in the record that would suggest that [Arellano] did possess a handgun during the time of the underlying offenses” apparently consisted entirely of hearsay
exhibits

— including police reports recounting interviews of
Arellano and his codefendants as well as a single page from a prison psycholo gical evaluation quoting a correctional counselor’s report

— Arellano had submitted in support of his resentencing petition. According to the police reports, Arellano made “several conflicting statements” during his police interview about his proximity to the residence at the time of the crime but maintained that he was not present for the attempted robbery. Codefendant Mendoza, on the other hand, told thePEOPLE v. ARELLANO Opinion of the Court by Evans, J.

6 police that he, Mandujano, and Arellano each had guns during the course of the robbery. Mandujano s imilarly told the police that he, Mendoza, and Arellano possessed guns during the
incident. The correctional counselor’s report dated December 2002, more than 10 years after the murder, recounted what the
murder victim’s sister had said about the incident : “According
to the victim ’ s sister, four young males had come to her door looking for another address. About one hour later, they came back to her house and rang the doorbell. When she opened the door, Jesus Antonio Mandujano and Ramon Arellano rushed past her. Arturo Mendoza came in next and held a gun to the
left side of Benitez ’ s sister. Benitez, the victim, appeared from a rear bedroom, saw what was happening and attempted to get back into the bedroom. Mandujano and Arellano saw Benitez and chased him down the hall with guns in their hands. Benitez attempted to shut the bedroom door[,] but Mandujano and Arellano were pushing against it. Mandujano had his hand,
which was holding the .45

- caliber handgun between the door and the [doorjamb] and fired one round, which struck Benitez in
the shoulder. The three then fled on foot from the scene.”
Based on this record, t he court vacated Arellano’s second degree murder conviction a s well as the accompanying life
sentence and “ redesignated Count 1 ” as attempted robbery with
a firearm use enhancement

. On redesignated count 1, the court sentenced Arellano to a total term of seven years : the upper term of three years for the attempte d robbery and the middle term of four years for the firearm enhancement. The court found
the seven

- year prison term had been satisfied by time served
and released Arellano on parole

. The Court of Appeal reversed and remanded for further proceedings . It found the trial court had erred under sectionPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

7 1172.6, subdivision (e) when it included the firearm enhancement as part of the redesignated conviction. ( Arellano

, supra , 86 Cal.App.5th at pp. 422

– 423 , 437 .) Limiting resentencing to the ta rget offense or the underlying felony, the Court of Appeal reasoned, “does not result in absurd consequences” and “simply limits a petitioner’s expo sure in a relatively definite manner to only a specific offense and avoids the complexities that could arise in deciding which of the myriad sentencing enhancements in our penal law might be applicable to a particular factual scenario.” ( Id . at p. 436.) The court

a ssert ed that its interpretation of section 1172.6, subdivision (e) departed from that offered by the First Appellate District, Division Five, in People v. Howard (2020) 50 Cal.App.5th 727,
741

– 742 ( Howard

) , which affirmed the addition of an arming enhancement to the redesignated underlying felony

. ( Arellano

, at p. 434. )
We granted the Attorney General’s petition for review.

II. D ISCUSSION
A. General Procedure s for Resentencing Under Senate Bill No. 1437
In 2018, the Legislature enacted Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill No. 1437) , which altered the
substantive law of murder for accomplices in two respects. (Stats. 2018, ch. 1015, § 1(f).) First, with certain exceptions, it
narrowed the scope of the felony

- murder rule so that a “participant in the perpetrat ion or attempted perpetration of a [specified felony ] in which a death occurs ” can be liable for
murder only if “[t]he person was the actual killer ”; “[t]he person
was not the actual killer , but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested,PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

8 or assisted the actual killer in the commission of murder in the first degree ”; or “[t]he person was a major participant in the underlying felony and acted with reckless indifference to human
life.” ( § 189, subd. (e) (1)

– (3) .) Second, it now requires that, except in cases of felony murder, “a principal in a crime shall act with malice aforethought ” to be convicted of murder

. (§ 188, subd. (a)(3).) I n other words, “[m]alice shall not be imputed to a

per son based solely on his or her participation in a crime

. ” ( Ibid .) This aspect of Senate Bill No. 1437 eliminated liability
for murder as an aider and abettor under the natural and probable consequences doctrine. ( People v. Curiel (2023) 15
Cal. 5 th 433, 449.)

Senate Bill No. 1437 also created “a procedure for
convicted murder er s who could not be convicted under the law as amended to retroactively seek relief.” ( People v. Lewis (2021)
11 Cal.5th 952, 957.) The Legislature subseq uently amended the statute to expand the categories of those eligible for relief

, 3 codify certain aspects of our decision in Lewis , and cl a rify
certain procedure s a t the evidentiary hearing

. (Stats . 2021, ch. 551, § 1.) In 2022, former section 1170.95 was renumbered as section 1172.6 without substantive change . (Stats. 2022, ch. 58, § 10 ; see People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 ( Strong ) .) Neither party claims that the se statutory changes
affect the issue raised in this appeal, s o we generally refer to the

current statute in th is opinion.

3 The amended statute opened the petitioning procedure to those convicted of attempted murder or manslaughter under a theory that is now invalid. Because the redesignate d conviction in this case was murder, we refer solely to murder in describing the operation of the resentencing statute.PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

9 Under section 1172.6, subdivision (a), “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person ’ s participation
in a crime

. . . may file a petition with the court that sentenced the petitioner to have the petitioner ’ s murder

. . . conviction vacated and to be resentenced on any remaining counts

. . . .” “[T]he pro cess begins with the filing of a petition containing a declaration that all requirements for eligibility are met ( id

., subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [ Penal Code] Section 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” ( Strong

, supra , 13 Cal.5th at p. 708.) “When the trial court receives a petition containing the necessary
declaration and ot her required information, the court must evaluate the petition ‘to determine whether the petitioner has made a prima facie case for relief.’ (§ 1172.6, subd. (c); [citation].) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. (See § 1172.6, subd. (c); [citation].) If, instead, the defendant has made a prima facie showing of entit lement to relief, ‘the court shall issue an order to show cause.’ (§ 1172.6, subd. (c).)” ( Strong , at p. 708.)
Within 60 days after the order to show cause has issued,
the court is to conduct a hearing to determine whether “ the prosecution [ can ] prove, beyond a reasonable doubt, that the petitioner is guilty of murder

. . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” ( § 1172.6, subd. (d)(1).) “If the prosecution
fails to sustain it s burden of pr oof, the prior conviction, and anyPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

10 allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges ” ( id ., subd. (d)(3))

, “as if the petitioner had

not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence ” ( i d ., subd. (d)( 1 ) ).
Where (as here) the murder “ was charged generically” ( id

. , subd. (e ))

— i.e., not limited to any particular theory of liability (see People v . Eynon (20 21) 68 Cal.App.5th 967, 977 )

— and the target offense or underlying felony “was not charged,” “[t]he petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.” ( § 1172.6 , subd. (e).)

B. Review of t he Text, Structure, and Purpose of Section 1172.6 Demonstrate s T hat Cour ts May Not Impose Uncharged and Unproven Allegations or Enhancements as Part of Resentencing

We agree with the Court of Appeal that the trial court erred in adding a firearm enhancement to the redesignated attempted robbery conviction . This conclusion rests on a careful
review of section 1172.6 ’s text

, structure
, and purpose. (See People v. Conley (2016) 63 Cal.4th 646, 661.)

The text of s ection 1172.6 describes what should be done
if , following the issuance of an order to show cause

, the prosecution fails to sustain its burden “to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” ( § 1172.6, subd. (d)(3).) The murder conviction as well as “a ny allegations and enhancements attached to the conviction shall be vacated and the petitioner shall be resentenced on the remaining charges .” ( Ibid

. ; see id ., subd. (a) [ authorizing a petition “to be resentenced on any remainingPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

11 counts”]. ) In some cases, though, the murder will have been charged “gen erically ,” without any finding on the “target offense or underlying felony.” ( Id ., subd. (e).) In that circumstance, the conviction “shall be redesignated as the target offense or underlying felony for resentencing purposes.” ( Ibid .)
Nothing in the te xt of section 1172.6 indicates that a court may add an uncharged and unproven allegation or
enhancement

. To the contrary: w hen a trial court resentences a petitioner under section 1172.6, subdivision (d)(3), the court

must vacate “any allegations and enhancements attached to the
conviction .” The court shall then resentence the petitioner on the “remaining charges ” ( ibid .) , which is a clear reference only

to the charges that remain

— not charges that could have been established by the evidence. (See People v. Fouse (2024) 98 Cal.App.5th 1131, 1145

– 1146 ( Fouse ) ; People v. Del Rio (2023) 94 Cal.App.5th 47, 53 .) As the Attorney General conceded at oral argument, in resentencing under subdivision (d) “the resentencing court needs to abide by what’s already occurred in the case; the prosecution does not get a second bite at the apple .”
Nothing in the statutory text suggests there should be a different outcome under section 1172.6, subdivision (e)

. Subdivision (e) applies when the murder was charged “generically

, ” and the underlying felony or target offense was not charged. The statute does not define “underlying felony” or “target offense,” but we agree with the pa rties that the meaning
of these terms is clear. An “underlying felony” refers to the felony underlying a felony

- murder theory ( § 1172.6, subd. (f); see People v. Cavitt (2004) 33 Cal.4th 187, 193 ), and the “target
offense” refers to the offense the natural and probable consequence of which was murder ( § 1172.6, subd. (f); see People
v. Medina (2009) 46 Cal.4th 913, 920)

. Accordingly, underPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

12 subdivision (e), a trial court redesignates the murder co nviction “as the target offense or underlying felony for resentencing purposes.” Because an enhancement or an allegation is not a target offense or an underlying felony ( see People v. Superior
Court ( Mendella ) (1983) 33 Cal.3d 754, 758 [ “ ‘ enhancement

statutes

. . . do not define a crime or offense but relate to the penalty to be imposed under certain circumstances’ ”] ), it follows from the statutory text that resentencing under subdivision (e)

, like resentencing under subdivision (d)(3), do es not contemplate
the addition of an enhancement or an allegation that was not previously found to be true

. This reading is supported by the fact that section 1172.6 refers specifically to “allegations and enhancements” in subdivision (d)(3) : “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction , shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Italics added.) This shows the Legislature knows how to include sentencing allegations and enhancements when it wants to do so. (See Walker v. Superior Court (2021) 12 Cal.5th 177

, 199.) The fact that it did not include these additional sentencing components in describing th e redesignation and resentencing process in subdivision (e) su ggest s the Legislature did not intend to grant courts the authority to make findings and impose uncharged and unproven allegations and enhancements. (See People v. Zapien (1993) 4 Cal.4th 929, 955 [courts are not

“ ‘empowered to insert what a legislative body has omitted from
its enactments’ ”].)

The structure of the sentencing reform effected by section 1172.6 further supports the conclusion that courts may not add
unch arged and unproven enhancements and allegations to thePEOPLE v. ARELLANO Opinion of the Court by Evans, J.

13 target offense or underlying felony when resentencing a successful petitioner under subdivision (e). Section 1172.6 explicitly sets out , in detail, the procedure for determining
whether to vacate a mu rder conviction :
S ection 1172.6 , s ubdivision (a) provides that a person who was convicted of murder under a theory that is now invalid may file a petition to be resentenced

. Subdivision s (b) and (c) detail
the procedures governing the content of the petition, its filing,
and service ; the prosecutor’s response; the petitioner’s response;
and the order to show cause. Once the order to show cause has issued, subdivision (d) directs the court to hold a hearing ( unl ess the parties have stipulated to relief) , at which the burden is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder as now defined

. Subdivision (d) (3) specifies that either party may offer new or additional evidence to demonstrate the petitioner is or is not guilty of murder as now defined ; that the admissibility of evidence at the hearing shall be governed by the Evidence Cod e, “except that the court may consider evidence previously admitted at an y prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed ” ; that the court may also consider the procedural history of the

case recited in any prior appellate opinion ; an d that hearsay
evidence that was admitted at the preliminary hearing under section 872, subdivision (b) shall be excluded , unless the evidence is admissible under another exception to the hearsay
rule. Section 1172.6, s ubdivision (d)(3) also provides that “substantial evidence ” to support a conviction of murder “is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

14 Had the Legislature intended to allow courts to make findings of uncharged and unproven al legations and
enhancements and to include them in the resentencing, one
would expect section 1172.6 , subdivision (e) to similarly describe
how the parties would become apprised of that possibility, the parties’ opportunity to be heard, the evidence that could be considered, and the burden and standard of proof for imposing uncharged and unproven allegations and enhancements. That the Legislature did not even mention uncharged and unproven allegation s and enhancements

— let alone articulate any procedures for identifying and proving the trut h of such allegations and enhancements

— is a significant indication that courts lack the authority to litigate and then impose such allegations and enhancements during the redesignation and resentencing phase.
Limiting resentencing to the “remaining counts” or

“ remaining charges” ( § 1172.6, subds. (a), (d)(1) & (3 ))

— or when the murder was charged “generically,” to the “target
offense or underlying felony” ( id ., subd. (e ) )

— is at the very least

cons onant with Senate Bill No. 1437’s legislative purpose. In uncodified section 1 of the enactment, the Legislature declared “a need for statutory changes to more equitably sentence
offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b).) This “[r]eform” was “needed,” the Legislature asserted, “to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding , which partially results from length y sentences that are not commensurate with the culpability of the
individual.” ( Id ., § 1(e)

. ) The legislative history, for its part,
fur ther discusses the need to reduce “ ‘severe, unconstitutionalPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

15 overcrowding’ ” and “ ‘repair the harm of decades of mass
incarceration

, ’ ” which required the state to “ ‘ provide relief to those with violent felony convictions ’ ” and thereby

“ ‘ demonstrate i ts commitment to bringing overdue reforms to violent felony sentencing and redirecting state resources away from costly investments in corrections .’ ” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 14 37 (2017

– 2018 Reg. Sess.) as amended May 25, 2018, p. 7 ; see also Dept. of Finance, Enrolled Bill Rep . on Sen. Bill No. 1437 (2017

– 2018 Reg. Sess.) Sept. 7, 2018, p. 1 [“ The Department of Finance recommends signing this bill because it could reduce the average daily population in state prison, resulting in significant savings to the
state due to decreased incarceration ”] .) We see nothing in these legislative materials to suggest the Legislature contemplated a rule that would permit resentencing court s to augment sentences by imposing previously uncharged and unproven
enhancements.
To support his contention that section 1172.6, subdivision (e) allows trial courts to impose uncharged and unproven enhancements at a resentencing proceeding, the Attorney
General relies on Howard

, supra , 50 Cal.App. 5th 727. There, as here, the prosecutor agreed the murder conviction should be vacated under former section 1170.95. ( Howard

, at p. 733.) The
trial court in Howard identified the underlying felony as first degree residential burglary and imposed an armi ng enhancement. ( Id . at p. 734.) But the arming enhancement in Howard, unlike the firearm use enhancement here, was pled and proved in connection with the murder. That is, in convicting Howard of first degree murder, the jury found true that Howard
had been armed with a firearm in the commission of the offense, and the trial court relied on that finding to impose the armingPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

16 enhancement on the underlying felony once the murder conviction had been vacated. ( Id . at pp. 732, 742.) In affirming the judgment , the Court of Appeal relied on the fact the arming
enhancement had been proved “beyond any possible dispute” at trial , and Howard did “ not argue otherwise. ” ( Id . at p. 742.)
Howard is therefore distinguishable from the situation here,
where no enhancement was admitted by Arellano nor found true by the jury. 4

C. Court of Appeal Decisions A ddressing the Redesignation of the Target Offense or Underlying Felony Do Not Support the Impo sition of Uncharged and Unproven Sentence Enhancements or Allegations

The Attorney Genera l, like the Howard court, argues that
because subdivisions (d)(3) and (e) of section 1172.6 “ ‘intended

to grant the trial court flexibility when identifying the
und erlying felony for resentencing under subdivision (e)

, ’ ” resentencing courts should likewise “have flexibility in determining the appropriate sentence for the redesignated conviction and may impose an enhancement that increases the punishment for the offense or offenses.” We do not find the analogy persuasive

. In Howard , the parti es agreed that the underlying felony was burglary, but disagreed on the degree of the offense. ( Howard

, supra , 50 Cal.App.5th at p. 730.) The prosecution urged the trial court to redesignate the underlying felony as first degree residential burglary (§ 4 60, subd. (a) ); the defendant , on

4 We accordingly express no view whether the Howard court correctly imposed an enhancement that had previously been pled and proved.PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

17 the other hand, argued the court was required to redesignate
the conviction as the lesser offense of second degree burglary ( id ., subd. (b)). ( Howard , at p. 736.) The trial court redesignated the murder conviction as first degree burglary, and the Court of Appeal affirmed. ( Id . at p. 730.)

The Howard c ourt reasoned that “ the absence of a first degree burgla ry instruction and verdict did not preclude the
court fro m redesignating Howard’s conviction as first degree burglary, because the evidence at trial demonstrated beyond any dispute the building was a residence.” ( Howard

, supra , 50 Cal.App.5th at p. 738.) Had the Legislature intended courts to impose the lesser degree of an underlying felony , the court noted, “ ‘it easily could have done so. ’ ” ( Ibid .) The court also
read subdivisions (d)(3) and (e) of former section 1170. 95

— which, as relevant here, are substantially similar to subdivisions (d)(3) and (e) of section 1172. 6

— to support its conclusion “that the Legislature intended to grant the trial court flexibility when identifying the underlying felony for resentencing under subdivision (e).” ( Howard , at p. 739.) Finally, the court deemed the redesigna tion “ consistent ” with the legislative purpose to “punish a defendant according to his

‘ “own level of individual culpability.” ’ ” ( Ibid .)
Two Courts of Appeal have subsequently relied on Howard

to permit resentencing courts to redesignate the underlying felony as multiple offenses. ( People v. Silva (2021) 72 Cal.App.5th 505 , 515, 531 ( Silva ) [ affirm ing the redesignation of two counts of first degree murder as four home invasion
robberies in concert (§ 213, subd. (a)(1)(A)) and one attempted home invasion robbery in concert ]; People v. Watson

, supra , 64 Cal.App.5th at p. 478 ( Watson ) [ affirming the redesignat ion of aPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

18 single murder conviction as first degree robbery and first degree burglary].)

We need not decide here whether a court has discretion under section 1172.6, subdivision (e) to redesignate a murder conviction as multiple underlying felonies or target offenses o r whether a court must r edesignate an underlying offense in any particular degree. Th ose question s are not before us. But even assuming that courts must have “flexibility” ( Watson

, supra , 64 Cal.App.5th at p. 488; see Howard

, supra , 50 Cal.App.5th at p.
739 [same] ) and “discretion” ( Silva

, supra , 72 Cal.App.5th at p. 532) in redesignating the underlying felony or target offense, it
does not follow that courts have the separate authority t o search out and impose sentence allegations and enhancements that were not charged and proven at trial

. Under section 1172.6, a n underlying felony or target
offense is fundamentally distinct from a sentence enhancement

o r allegation. (See People v. Superior Court ( Mendella )

, supra , 33 Cal.3d at p. 758.) T he existence of an underlying felony or target offense is an essential predicate to any successful resentencing petition under section 1172.6. Under the statute,

a petitioner may obtain relief only when “all of the following conditions apply”: (1) the prose cution was allowed to proceed under a theory of felony murder , murder under the natural and probable consequences doctrine , or another theory “under which malice is imputed to a person based solely on that person’s participation in a crime ”; (2) the petiti oner was convicted of murder; and (3) the petitioner could not be convicted of murder
under sections 188 or 189 as amended by Senate Bill No. 1437. ( § 1172.6, subd. (a)(1)

– (3) , italics added .) Where, as here, the murder was charged generically

— and the target offense orPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

19 underlying felony was not charged 5

— the murder shall be redesignated “as the target offense or underlying felony for resentencing purposes .” ( § 1172.6 , subd. (e).) Consequently, t he “target offense or underlying felony ” under sect ion 117 2

. 6
, subdivision (e) is the offense or felony that was the predicate for relief in the first place

— i.e., the offense or felony that supported the prosecution’s theory of felony murder, murder
under the natural and probable consequences doctrine, o r any other theory in which malice is imputed based solely on that person’s participation in a crime

. (See § 1172.6, subd. (a)(1) ; Fouse

, supra , 98 Cal.App.5th at p. 1144 [“courts have interpreted this phrase to mean ‘the “offense” upon which liability was based for either the natural and probable consequences doctrine or the felony

- murder rule’ ” ].)

Neither sentence e nhancement s nor allegations , on the other hand, for m any part of the essential predicate for relief
under section 1172.6

. A successful petitioner at no point needs

to demonstrate that the prosecution was “allowed

. . . to proceed under a theory” that one or more enhancements or allegations

were true. ( § 1172.6, subd. (a)(1).) Imposing a n uncharged and

unproven enhancement or allegation, unlike a target offense or

5 The parties agree that the resentencing in this case was governed by section 1172.6, subdivision (e) despite the fact that here, as in Silva and Howard , an accusatory pleading did at one point charge the underlying felony. (See Arellano

, supra , 86 Cal.A pp.5th at p p

. 423, 432; Silva

, supra , 72 Cal.App.5th at
p. 512; Howard

, supra , 50 Cal.App.5th at p. 733, fn. 2.) What matters for purposes of subdivision (e)’s requirement that “the murder was charged generically” and the underlying felony or target offense “was not charged” is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated.PEOPLE v. ARELLANO Opinion of the Court by Evans, J.

20 underlying felony, would therefore more closely resemble a new prosecution, not a resentencing proceeding. ( Cf. Estrada v. Superior Court (20 23) 93 Cal.App.5th 915, 925.) We disagree with the Attorney General that section 1172.6 resentencing proceedings were intended to reopen the prosecution’s charging
decisions to this extent. Moreover, it is difficult to reconcile the imposition of uncharg ed and unproven enhancements at a section 1172.6 resentencing proceeding with the requirement under section 1170.1, subdivision (e) that “[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or f ound to be true by the trier of
fact.”

Arellano further warns that reopening the charging decisions for sentencing enhancements and allegations would
work much mischief because of the sheer number of such provisions in the Penal Code. According to t he Office of the State Public Defender, appearing as amicus cu riae, California
law includes over 100 unique sentencing enhancements. The Attorney General responds that the universe of possible sentencing enhancements and allegations is more limited. In his view, expressed for the first time at oral argument,

resent encing under section 1172.6, subdivision (e) permits only those uncharged and unproven enhancements and allegations
that are offense

- specific, and not those that are offender

- specific. Notably, he does not identify a textual basis for the distinction

, given that an enhancement or an allegation is neither an “offense” n or a “felony” under section 1172.6, subdivision (e). ( See People v. Dennis (1998) 17 Cal.4th 468, 500 [“ ‘sentence enhancements are not “equivalent” to, nor do they “function ” as,
substantive offenses’ ”] .) In any event, the number of offense

specific enhancement s and allegations is still substantial, andPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

21 so is their potential effect. Firearm enhancements alone range from one year (see, e.g., § 12022 , subd. (a)) up to 25 yea rs to life ( see, e.g., § 12022.53, subd. (d) )

. The felon ies that can support a felony murder, on the other hand, are limited to those that are inherently dangerous. ( People v. Powell (2018) 5 Cal.5th 921, 942.)

W e deem it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions for the entire range of offense

- specific sentencing allegations and
enhancements every time a petitioner succeeds in setting aside
a murder c onviction under section 1172.6 . We also are skeptical the Legislature intended

, without any warning or suggested procedures, to burden superior courts with this degree of factfinding in section 1172.6 resentencing proceedings

. The Attorney General foc uses specifically on the legislative finding that “a person should be punished for his or her actions according to his or her own level of individual culpability ” ( Stats. 2018, ch. 1015, § 1(d)) to argue that courts should be allowed to impose any uncharged and unproven
offense

- specific sentencing allegations and enhancements so long as they are supported by the record

. But t he Legislature sought to “fairly address[] the culpability of the individual ” in a particular way : by “amend[ing] the felony murder rule and the natural and probable consequences doctrine , as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the un derlying felony who
acted with reckless indifference to human life .” ( Stats. 2018, ch. 1015, § 1(e), (f).) It expected the new legislation “to limit convictions and subsequent sentencing ” and “assist[] in the reduction of prison overcrowding.” ( Id ., § 1 (e).) We do notPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

22 believe the legislative goal of proportional punishment would be so unbounded as to direct courts to evaluate culpability anew by adding enhancements and allegations to the underlying felony or target offense that were not previously charg ed and then proven at trial

. The Attorney General also contends that the imposition of
the enhancement here falls within “ ‘the traditional latitude for sentencing hearings’ ” ( Howard

, supra , 50 Cal. App. 5th at

p p. 741

– 742), but we are not persuaded that such discretion has
ever extended to the imposition of uncharged and unproven sentencing allegations and enhancements

. T h e Attorney General has not pointed to any instance , and we can think of none, where courts have been all owed to impose uncharged and

unproven sentencing allegations and enhancements that are
neither authorized by the text of a resentencing statute nor a predicate to resentencing relief. Selecting among the numerous uncharged and unproven offense

- specific sentence enhancements and allegations has not been part of a court’s traditional sentencing authority , and nothing in section 1172.6 suggests the Legislature intended to confer such authority.

III. C ONCLUSION
C ourts may not i mpose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6, subdivision (e). We therefore affirm the judgment of the Court of Appeal to the extent it
ordered the firearm use enhancement stricken

. The Court of Appeal also reversed the redesignated conviction for attempted robbery “and remand [ed] the matter for further proceedings to redesignate Arellano’s vacated murder conviction as a conviction of the underlying felony andPEOPLE v. ARELLANO Opinion of the Court by Evans, J.

23 resentence him,” leaving “it to the trial court and parties on remand to determine whether the underlying felony for resentencing purposes should comprise either or both attempted robbery and first degree burglary .” ( Arellano

, supra , 86 Cal.App.5th at p. 437.) Neither party, however, asked the Court of Appeal to remand for the trial court to reconsider the redesignated conviction, and neither party in this court has
asked for a remand in the event we affirm the striking of the
firearm enhancement . Moreov er, a remand would be an idle act

, given that the trial court at the resentencing proceeding stated its belief that it could redesignate the underlying felony as the burglary ( or both the burglary and the attempted robbery )

— yet chose not to do so. (See id . at p. 427, citing Watson

, supra , 64 Cal.App.5th 474 .) We therefore reverse the judgment of the Court of Appeal to the extent it ordered a remand t o the trial

court for redesignation of the underlying felony or felonies

.

EVANS, J.

We Concur: GUERRERO, C. J. CORRIGAN, J. LIU, J. KRUGER, J. GROBAN, J. JENKINS, J.See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Arellano

__________________________________________________________
Procedural Posture (see XX below) Original Appeal Original Proceeding Review Granted (published) XX 86 Cal.App.5th 418 Review Granted (unpublished) Rehearing Granted

__________________________________________________________ Opinion No. S277962 Date Filed: Ju ly 1 1
, 202 4

__________________________________________________________
Court: Superior County: Santa Clara Judge: Daniel T. Nishigaya

__________________________________________________________
Counsel:

Peter F. Goldscheider, under appointment by the Supreme Court , for Defendant and Appellant.

Galit Lipa, State Public Defender, Adriana Gonzalez, Associate Deputy State Public Defender, AJ Kutchins and Jennifer Hansen, Deputy State Public Defenders, for th e Office of the State Public Defender as Amicus Curiae on behalf of Defendant and Appellant.

William J. Arzbaecher for the California Public Defender’s Association as Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A Swenson, Alan L. Amann, Arlene A. Sevidal

, James H. Flaherty III and Christine Y. Friedman, Deputy Attorneys General, fo r Plaintiff and Respondent.Counsel who argued in Supreme Court (not intended for

publication with opinion):

Peter F. Goldscheider Attorney at Law 600 Allerton Street

, S uite 201 Redwood City, CA 94063 (650) 323

- 8296

Christine Y. Friedman Deputy Attorney General 600 West Broadway , Suite 1800 San Diego, CA 92101 (619) 738

- 9050