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 section 1172.61 provides an 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 to 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 target 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 add to the redesignated conviction uncharged and 

unproven offense-specific sentencing enhancements or 

allegations it deems “appropriate.”

We hold that the limited resentencing procedure under 

section 1172.6, subdivision (e) does not permit a court to impose 

1 All further undesignated references are to this Code.
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Opinion of the Court by Evans, J.

2

a sentencing enhancement or allegation unless 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 therefore affirm the judgment of the 

Court of Appeal to the extent it ordered stricken a firearm use

enhancement that was neither found true by the jury nor 

admitted by defendant.

I. BACKGROUND

In January 1992, J. Sacramento Benitez was killed during 

a residential burglary and attempted robbery. The 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 first 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 those offenses. (§§ 1203.06, 12022.5, 

subd. (a).) Prior to the preliminary hearing, Arellano agreed to 

plead guilty to second degree murder under certain conditions, 

including that the firearm use enhancement would be stricken 

and the robbery and burglary charges dismissed. The court 

sentenced Arellano to 15 years to life, concurrent to a sentence 

previously 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).)
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Opinion of the Court by Evans, J.

3

In October 2020, Arellano, through counsel, filed the 

current petition for resentencing. 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 resentencing, 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 offered 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. The trial court confirmed the parties’ agreement to 

resentence Arellano on the attempted 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 thencurrent 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 [sections] 
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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 fourth 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.” Counsel 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. Arellano 
PEOPLE v. ARELLANO

Opinion of the Court by Evans, J.

5

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

authority to impose the previously dismissed enhancement and 

finding there was “evidence in the record” to “suggest” Arellano 

was armed: “[G]iven the fact that there were Penal Code Section 

12022.5 subdivision (a) enhancements attached to . . . counts 

against 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 of 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 arming allegation pursuant to [section] 12022.5 

subdivision (a).”

The “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 psychological 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 the 
PEOPLE 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 similarly 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, the court vacated Arellano’s second 

degree murder conviction as 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 attempted 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 section 
PEOPLE 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 target offense or the underlying felony, the 

Court of Appeal reasoned, “does not result in absurd 

consequences” and “simply limits a petitioner’s exposure 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 

asserted 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. DISCUSSION

A. General Procedures 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 perpetration 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).) In other words, “[m]alice shall not be imputed to a 

person 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.5th 433, 449.) 

Senate Bill No. 1437 also created “a procedure for 

convicted murderers 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 subsequently amended 

the statute to expand the categories of those eligible for relief,

3

codify certain aspects of our decision in Lewis, and clarify 

certain procedures at 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 these statutory changes 

affect the issue raised in this appeal, so we generally refer to the 

current statute in this 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 redesignated 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 process 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 other 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 entitlement 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 its burden of proof, the prior conviction, and any 
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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” (id., 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 (2021) 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 the Text, Structure, and Purpose of 

Section 1172.6 Demonstrates That Courts 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 section 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 “any 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 remaining 
PEOPLE v. ARELLANO

Opinion of the Court by Evans, J.

11

counts”].) In some cases, though, the murder will have been 

charged “generically,” 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 text of section 1172.6 indicates that a court 

may add an uncharged and unproven allegation or 

enhancement. To the contrary: when 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 parties 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, under 
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Opinion of the Court by Evans, J.

12

subdivision (e), a trial court redesignates the murder conviction 

“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), does 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 the redesignation and resentencing 

process in subdivision (e) suggests 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 

uncharged and unproven enhancements and allegations to the 
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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 murder conviction: 

Section 1172.6, subdivision (a) provides that a person who 

was convicted of murder under a theory that is now invalid may 

file a petition to be resentenced. Subdivisions (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 (unless 

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 Code, “except that the court may 

consider evidence previously admitted at any 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; and 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, subdivision (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.” 
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Opinion of the Court by Evans, J.

14

Had the Legislature intended to allow courts to make 

findings of uncharged and unproven allegations 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 

allegations and enhancements — let alone articulate any 

procedures for identifying and proving the truth 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

consonant 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 lengthy

sentences that are not commensurate with the culpability of the 

individual.” (Id., § 1(e).) The legislative history, for its part, 

further discusses the need to reduce “ ‘severe, unconstitutional 
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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 its 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. 1437 (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 courts 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 arming 

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 arming 
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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 Addressing the 

Redesignation of the Target Offense or 

Underlying Felony Do Not Support the 

Imposition of Uncharged and Unproven 

Sentence Enhancements or Allegations 

The Attorney General, 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 

underlying 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 parties 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 (§ 460, 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.
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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 court reasoned that “the absence of a first 

degree burglary instruction and verdict did not preclude the 

court from 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 redesignation “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) [affirming 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 redesignation of a 
PEOPLE 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 or

whether a court must redesignate an underlying offense in any 

particular degree. Those questions 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 to search 

out and impose sentence allegations and enhancements that 

were not charged and proven at trial. 

Under section 1172.6, an underlying felony or target 

offense is fundamentally distinct from a sentence enhancement 

or allegation. (See People v. Superior Court (Mendella), supra, 

33 Cal.3d at p. 758.) The 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 prosecution 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 petitioner 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 or 
PEOPLE v. ARELLANO

Opinion of the Court by Evans, J.

19

underlying felony was not charged5 — the murder shall be 

redesignated “as the target offense or underlying felony for 

resentencing purposes.” (§ 1172.6, subd. (e).) Consequently, the 

“target offense or underlying felony” under section 1172.6, 

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, or 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 enhancements nor allegations, on the 

other hand, form 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 an 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.App.5th at pp. 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 (2023) 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 uncharged 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 found 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 the Office of the 

State Public Defender, appearing as amicus curiae, 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, 

resentencing 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” nor 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 offensespecific enhancements and allegations is still substantial, and 
PEOPLE 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 years to life 

(see, e.g., § 12022.53, subd. (d)). The felonies 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.) 

We 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 conviction 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 focuses 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 the 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 underlying 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 not 
PEOPLE 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 charged 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 

pp. 741–742), but we are not persuaded that such discretion has 

ever extended to the imposition of uncharged and unproven 

sentencing allegations and enhancements. The Attorney 

General has not pointed to any instance, and we can think of 

none, where courts have been allowed 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. CONCLUSION

Courts may not impose 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 and 
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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. Moreover, 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 to 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: July 11, 2024

__________________________________________________________

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 the 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, for Plaintiff 

and Respondent. 
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Peter F. Goldscheider

Attorney at Law

600 Allerton Street, Suite 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