Filed 9/8/22 P. v. Gutierrez CA5

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JOHNNY GABRIEL GUTIERREZ,

Defendant and Appellant.

F081666

(Tulare Super. Ct. 

No. VCF160215B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Karriem Baker, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric 

L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
2.

INTRODUCTION

This case marks appellant Johnny Gabriel Gutierrez’s third appeal, which is the 

result of the failure of appellant (or the trial court) to inform this court that the primary 

issue raised in his second appeal was appropriately addressed while that appeal was 

pending – thus obviating the necessity for appellate review. Nonetheless, we deem it 

important to illustrate the factual and procedural path that brings us to this point. 

Hopefully, this will serve as a cautionary tale in the hope that similar miscues will not 

occur in future cases to avoid the waste of judicial resources.

Appellant’s case began in 2005, when he was convicted of two counts of assault 

by means of force likely to produce great bodily injury, with enhancements for the 

infliction of great bodily injury and committing the offenses for the benefit of a criminal 

street gang. In 2007, he was sentenced to the second strike term of 27 years. In 2008, 

this court affirmed the judgment on direct appeal.

In 2017, appellant filed a postjudgment motion alleging that he was improperly 

sentenced for both the great bodily injury and gang enhancements. The superior court 

summarily denied the motion, and appellant filed a notice of appeal. In this second 

appeal, appellant’s appointed counsel raised one issue – that both the great bodily injury 

and gang enhancements could not be imposed to his conviction.

While his second appeal was pending, however, the California Department of 

Corrections and Rehabilitation (CDCR) advised the superior court about the same 

sentencing error involving the two enhancements. In September 2018, the superior court 

held a hearing with appellant’s trial counsel present, corrected the error, and modified his 

sentence to 26 years eight months. Unfortunately, none of the interested parties advised 

this court (or apparently his appointed appellate counsel) that the identical issue briefed 

and pending on appeal had been resolved. In December 2018, this court filed the opinion 

in appellant’s second appeal, agreed that both enhancements were improperly imposed, 

vacated his sentence, and remanded for correction of the sentencing error.
3.

In 2020, the superior court held another hearing on remand as a result of the 

second appeal, decided there were no further errors to address, and denied appellant’s 

motion to conduct another resentencing hearing. Appellant filed the instant appeal from 

that hearing, which is his third appeal.

In the initial briefing, the People argued this third appeal must be dismissed 

because the sentencing error on the enhancement was already corrected and appellant 

failed to raise any cognizable issues arising from the 2020 hearing. Appellant asserted he 

raised cognizable issues, the superior court should have conducted another resentencing 

hearing in 2020, and the matter must again be remanded for various reasons.

On June 22, 2022, we filed the opinion in this third appeal, and denied the 

People’s motion to dismiss. We found appellant’s current appellate contentions were

cognizable, but meritless, and affirmed his convictions and sentence. We also addressed 

the procedural errors that led to this unfortunate waste of judicial resources. However, 

we were compelled to again remand the matter for the superior court to correct and file 

another abstract of judgment.

Thereafter, appellant filed a petition for rehearing challenging certain aspects of 

this court’s opinion; he also raised two new sentencing issues for the first time, even 

though those issues were cognizable when this third appeal was pending. After 

requesting responsive briefing, we granted the petition.

We again affirm appellant’s convictions but vacate the sentence and remand for 

the court to correct the abstract and to also address the two new sentencing issues in the 

interests of judicial economy.

FACTS1

On February 25, 2006, H.J. and his friend, J.O., attended a birthday party for 

H.J.’s nine-year-old nephew. The party was held at the home of Maria J. (Maria), H.J.’s 

1 After providing notice to the parties, who have not objected, we take judicial 

notice of the records and nonpublished opinions in appellant’s prior appeals, People v. 
4.

sister, that was located in the territory of a regional subset of the Norteño gang called the 

Varrios Farmas Catorce (VFC.) The VFC identify themselves with the color red. J.O. 

wore a blue checkered shirt to the party. J.O. testified that he was not a member of the 

Norteño’s rival gang, the Sureños, but was aware that the Sureños identify with the color 

blue.

While eating in his sister’s open-door garage with J.O. and three or four other 

friends, H.J. noticed a grown man with a red handkerchief wrapped around his hand. 

This man went in and out of a neighbor’s house while talking on a telephone and looking 

toward Maria’s house. After this man talked on the phone, 10 to 12 more men arrived in 

front of the neighbor’s house. Maria saw one man at this house and then saw more men 

slowly start to arrive. The men had red rags, and they were drinking and looking toward 

her house. She knew the red rags signified the Norteños because red is “all over the 

place” in Farmersville.

At around 7:15 p.m., J.O. stepped out of the garage and toward the driveway to 

answer a cell phone call. H.J. went into the house to change. J.O. testified that just as he 

went out to answer the phone, he was attacked. He fell to the ground and “covered up” 

until the attack stopped. When H.J. came out of the house, he saw about four males 

kicking and hitting J.O., who was in a fetal position. H.J. recognized one of the assailants 

as Michael Herrera. Farmersville Police Officer Mosqueda identified Herrera as a known 

member of the VFC, who had been seen associating with appellant numerous times.

H.J. pulled one of the assailants off of J.O., turned halfway around, and was struck 

in the head by an iron folding chair. H.J. fainted.

Maria testified that around 7:15 p.m., one of H.J.’s friends came into the house 

and said, “ ‘Call the police, they are fighting, they are fighting.’ ” When Maria went 

outside, she saw a group of about 10 men fighting. They were all wearing red, which 

Gutierrez (July 22, 2008, F052787) and People v. Gutierrez (Dec. 17. 2018, F075773), 

from which we take the facts and procedural history leading to the instant appeal.
5.

indicated they were Norteños. Four men were attacking J.O. with their feet and hands. 

Maria saw appellant Gutierrez, James Sanchez, and a third assailant attacking H.J., who 

was on the floor and bleeding. The two other assailants ran off.

Appellant remained, and he continued to attack H.J. Appellant kicked and 

stomped on H.J.’s head. Maria recognized appellant because he used to associate with 

another one of her brothers and come by her family’s home. She knew he was a Norteño.

She noticed appellant had a red bandana.

Maria saw appellant stomp on H.J.’s head about three times. She yelled at 

appellant, addressed him by name, and asked what he was doing. Appellant looked at her 

with an apparent expression of shock, stopped stomping on H.J.’s head, and fled.

The next day, Farmersville Police Officer McGuire went to appellant’s house and 

found him standing in the front yard with a large group of northern gang members,

including James Sanchez. McGuire knew these two men from a previous arrest in 2005 

for spray painting gang indicia on a Minute-Mart wall. McGuire arrested appellant and 

Sanchez for their alleged involvement in the incident the night before. McGuire 

confiscated appellant’s red shoelaces, a red bandana folded in his right front pocket, and a 

red baseball cap with Norteño gang symbols in the inside label. McGuire confiscated 

Sanchez’s red shoelaces, baseball cap with a Norteño gang symbol embroidered on the 

front, and a belt with “F” engraved on the buckle standing for “Farmas,” a short way of 

saying VFC.

Maria positively identified appellant in a photographic lineup as the man who 

attacked her brother.

At trial, Detective Sanchez, a gang expert, testified concerning the VFC gang. He 

opined that VFC is a criminal street gang, and that in his expert opinion, the charged 

offenses against appellant were committed in association with and for the benefit of the 

VFC gang.
6.

Appellant testified that he is a VFC member, views anybody in a rival gang as an 

enemy, and associates with James Sanchez. However, he denied assaulting H.J. for gangrelated reasons. The night of the incident, appellant was “drunk, relaxed, [and] 

swaggering a little bit,” and walked around for 45 minutes, trying to find a party. He 

heard yelling at Maria’s house, walked around the block again, and then saw a physical 

fight at the residence. He jogged over, not knowing it was Maria’s house, because he 

thought one of his friends might be involved in the altercation. Appellant was hit, started 

hitting the closest person to him, whom he assumed had hit him, but never kicked or 

stomped anyone. Appellant denied that any of his gang members were there or that he 

fought to promote the gang effort.

PROCEDURAL BACKGROUND

On May 2, 2006, an information was filed in the Superior Court of Tulare County,

case No. VCF160215B, charging appellant with count 1, assault by means of force likely 

to produce great bodily injury on H.J. (former Pen. Code, § 245, subd. (a)(1)),2 with 

enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)); and 

that offense was committed for the benefit of a criminal street gang pursuant to section 

186.22, subdivision (b)(1)(A); with another gang enhancement alleged under section 

186.22, subdivision (b)(1)(C) based on appellant’s commission of count 1, defined as a 

violent felony.3

In count 2, appellant was charged with assault by means of force likely to produce 

great bodily injury on J.O., with a gang enhancement alleged under section 186.22, 

subdivision(b)(1)(A). It was also alleged that appellant had one prior serious felony 

enhancement (§ 667, subd. (a)(1)) and one prior strike conviction.

2 All further statutory citations are to the Penal Code unless otherwise indicated.

3 Section 186.22, subdivision (b)(1)(C) provides for an enhancement of 10 years if 

the defendant commits an offense for the benefit of a criminal street gang, and the 

underlying offense is a violent felony within the meaning of section 667.5, 

subdivision (c).
7.

Convictions

On November 27, 2006, appellant’s jury trial began. Appellant was represented 

by Albert Garcia as his defense attorney.

On November 29, 2006, appellant was convicted of counts 1 and 2. The jury 

found true the great bodily injury enhancement as to count 1, and the gang enhancements 

for both counts. The court found the prior conviction allegations true.

Sentencing Hearing

On March 29, 2007, Judge Couillard, who presided over the jury trial, conducted 

the sentencing hearing. Appellant was again represented by Mr. Garcia.

Mr. Garcia argued appellant’s convictions were based on a fight that did not result 

in any long term injuries, no weapons were involved, and the court should impose 

concurrent terms.

The prosecutor replied that appellant and his associates crashed a child’s birthday 

party, and appellant stomped on one victim’s head while another victim was unconscious 

on the ground. Appellant had a lengthy record beginning in 1995, he committed the 

offenses three weeks after he had been released from custody, and he was on a suspended 

prison sentence on another gang case. The prosecutor argued the court should imposed a 

total term of 28 years eight months.

The court denied probation because appellant had a prior strike conviction and 

imposed an aggregate second strike term of 27 years, and imposed consecutive terms 

instead of defense counsel’s request for concurrent terms. In case No. VCF160215B, the 

court imposed the midterm of three years for count 1, doubled to six years as the second 

strike term; plus consecutive terms of five years for the prior serious felony enhancement, 

three years for the section 12022.7 great bodily injury enhancement, and 10 years for the 

section 186.22, subdivision (b)(1)(C) enhancement. As to count 2, the court found it 

constituted a separate and distinct act on a different victim and imposed a consecutive 
8.

sentence of two years (one-third the midterm), plus one year (one-third the midterm) for 

the section 186.22, subdivision (b)(1)(A) gang enhancement.

The court also sentenced appellant for violating probation in case 

No. VCF151780, to a midterm of two years for count 1, vandalism over $400 (§ 594, 

subd. (a)), plus three years for the attached gang enhancement (§ 186.22, 

subd. (b)(1)(A)), both concurrent to the principal term in case No. VCF160215B.

Abstract of Judgment

On April 4, 2007, the abstract of judgment was filed that stated appellant’s 

sentence with one error – that the consecutive five-year prior serious felony conviction 

enhancement was imposed pursuant to section “1170.12” instead of section 667, 

subdivision (a)(1).

Appellant’s Direct Appeal

On May 3, 2007, appellant filed a notice of appeal from his convictions and 

sentence. (People v. Gutierrez, supra, F052787.)

On July 22, 2008, this court affirmed appellant’s convictions and rejected his 

contention that the gang enhancements were not supported by substantial evidence. We 

noted the abstract contained a clerical error about the prior serious felony enhancement 

and directed the trial court to prepare an amended abstract of judgment to show that the 

five-year enhancement was imposed under section 667, subdivision (a)(1). (People v. 

Gutierrez, supra, F052787.)

On September 30, 2008, the California Supreme Court denied appellant’s petition 

for review, and this court issued the remittitur. (People v. Gutierrez, supra, F052787.)

First Amended Abstract of Judgment

On October 15, 2008, the superior court filed the corrected and first amended 

abstract of judgment to show the consecutive enhancement of five years was imposed 

pursuant to section 667, subdivision (a)(1).
9.

APPELLANT’S POSTJUDGMENT PETITION FOR MODIFICATION

On April 7, 2017, appellant, acting in pro. per., filed a petition in the superior 

court “for modification of sentence and to correct illegal enhancements.” (People v. 

Gutierrez, supra, F075773.) Appellant raised several sentencing issues, including that he 

was improperly sentenced for both the great bodily injury and gang enhancements, and he 

should receive a youthful offender parole hearing. Appellant requested the superior court 

recall the matter for “corrective resentencing” and “a possible immediate release on state 

parole.”

On May 1, 2017, Judge Paden summarily denied appellant’s petition without 

appointing counsel, holding a hearing, or making findings.

Appellant’s Second Appeal

On June 2, 2017, appellant, again acting in pro. per., filed a notice of appeal in the 

superior court from the denial of his petition on May 1, 2017 (People v. Gutierrez, supra, 

F075773).

Appellant’s Briefing in his Second Appeal

On July 7, 2017, this court appointed Karriem Baker as appellate counsel in 

appellant’s second appeal, People v. Gutierrez, supra, F075773.

On September 11, 2017, Mr. Baker filed appellant’s opening brief with this court, 

raising no issues and requesting review of the record pursuant to People v. Wende (1979) 

25 Cal.3d 436 (Wende). A copy of the brief was served on the superior court and the 

district attorney’s office. On May 14, 2018, this court granted Mr. Baker’s request to 

strike the previous Wende brief and file a supplemental brief.

On June 15, 2018, Mr. Baker filed a supplemental opening brief that raised one 

issue – that the superior court improperly imposed both the great bodily injury and the 

gang enhancements as to count 1, and the great bodily injury enhancement was legally 

unauthorized based on People v. Gonzalez (2009) 178 Cal.App.4th 1325 and section 

1170.1, subdivision (g). According to the proof of service, a copy of this brief was 
10.

served on the superior court; Mr. Garcia, appellant’s trial attorney; and the district 

attorney’s office.

On September 12, 2018, the People filed the respondent’s brief with this court, and 

agreed appellant’s sentence was legally unauthorized and subject to correction pursuant 

to section 1170.1, subdivision (g) and Gonzalez. The People’s brief was served on the 

superior court and the district attorney’s office.

RESENTENCING WHILE SECOND APPEAL WAS PENDING

While appellant’s second appeal in case No. F075773 was pending before this 

court, there were further sentencing proceedings held in appellant’s case in superior 

court. As will be explained, this court was not advised about these proceedings.

First Letter from CDCR

On or about December 16, 2017, the California Department of Corrections and 

Rehabilitation (CDCR) sent a letter to the superior court and requested recall and 

correction of appellant’s sentence. This letter is mentioned but is not contained in the 

instant appellate record.

On April 17, 2018, Judge Alldredge convened a hearing in response to CDCR’s 

letter. According to the reporter’s transcript, Mr. Garcia, appellant’s trial counsel, again 

represented appellant and waived his presence. The court stated that it had to correct the 

abstract of judgment to show that the gang enhancement imposed as to count 1 was based 

on section 186.22, subdivision (b)(1)(C). The parties agreed.

Second Amended Abstract of Judgment

On April 18, 2018, the court filed the second amended abstract of judgment, 

correctly stating the gang enhancement of 10 years imposed as to count 1 was based on 

section 186.22, subdivision (b)(1)(C), and the concurrent term for the gang enhancement 

for count 2 was based on subdivision (b)(1)(A). However, it erroneously stated the fiveyear term for the prior serious felony enhancement was based on section “667(5)(1).”
11.

This amended abstract was not filed with or sent to this court, even though the 

superior court, Mr. Garcia, and the district attorney’s office were aware the second appeal 

was pending.

Second Letter from CDCR

On August 2, 2018, while appellant’s second appeal was still pending before this 

court, the CDCR filed another letter with the superior court, stating that it was providing 

authority for the court to recall and resentence appellant pursuant to section 1170, 

subdivision (d). This letter is included in the instant appellate record.

CDCR’s letter advised the superior court that as to count 1, assault with force 

likely to inflict great bodily injury (former § 245, subd. (a)(1)), it could not have imposed 

both the great bodily injury enhancement under section 12022.7, and the gang 

enhancement under section 186.22, subdivision (b)(1)(C) based on the holding of 

Gonzalez “because both sentence enhancements were based on the great bodily injury 

[appellant] caused while committing the underlying offense.” CDCR requested the 

superior court resentence appellant accordingly.4

CDCR’s letter raised the identical sentencing error that Mr. Baker had raised in his 

supplemental brief filed in appellant’s pending appeal two months earlier.

Hearings on CDCR’s Second Letter

On August 27, 2018, the superior court held a hearing as a result of CDCR’s letter. 

Mr. Garcia, appellant’s trial counsel, again represented him. The minute order stated 

appellant was in custody in state prison. The court placed the matter on calendar for 

September 7, 2018, to consider CDCR’s second letter. Mr. Garcia did not request 

appellant’s presence or a transportation order to bring him from state prison to appear at 

the scheduled hearing.

4 As will be discussed below, the superior court had authority under thensection 1170, subdivision (d) to recall and resentence appellant while his second appeal 

was pending.
12.

On September 7, 2018, Judge Kalashian convened a hearing on CDCR’s second 

letter. Mr. Garcia, defense counsel, was again present. The minute order states appellant 

was represented by his attorney; the amended abstract of judgment states appellant was 

not present. There is no mention in the reporter’s transcript about appellant’s absence.

According to the reporter’s transcript, the court asked the parties how to resolve 

CDCR’s letter about resentencing on the enhancements. Mr. Garcia stated the court had 

to strike the section 12022.7 great bodily injury enhancement of three years and reduce 

appellant’s aggregate sentence from 27 years to 24 years.

Mr. Clare, the prosecutor, agreed the great bodily injury enhancement had to be 

stricken. Mr. Clare further argued the court could resentence appellant and still impose 

an aggregate term of 27 years by modifying the sentence on count 1 from the midterm to 

the upper term.

The court assumed the trial judge intended to impose an aggregate term of 27 

years and asked the prosecutor how it could resentence appellant. The prosecutor 

suggested imposition of an aggregate term of 26 years eight months based on the upper 

term for count 1, plus eight months for the vandalism conviction in the second case. The 

court agreed.

Third Amended Abstract of Judgment

On September 24, 2018, the court filed a third amended abstract of judgment

showing that appellant was resentenced to an aggregate term of 26 years eight months as 

follows: in case No. VCF160215B, the upper term of four years, doubled to eight years, 

for count 1, assault with force likely to inflict great bodily injury; with consecutive terms 

of five years for the prior serious felony enhancement and 10 years for the gang 

enhancement under section 186.22, subdivision (b)(1)(C); the section 12022.7 great 

bodily injury enhancement was ordered stricken. The court imposed consecutive terms

of two years for count 2, plus one year for the attached gang enhancement (one-third the 

midterms, doubled). In case No. VCF151780, the court imposed a consecutive term of 
13.

eight months (one-third the midterm) for count 1, vandalism over $400, and stayed the 

attached gang enhancement.5

This amended abstract was not filed with or served upon this court even though 

the superior court and the district attorney’s office were aware the second appeal was 

pending since they had been served with appellant’s supplemental brief in June 2018 that 

raised the identical sentencing error based on Gonzalez and the enhancements.

In addition, Mr. Garcia also received appellant’s supplemental opening brief in 

June 2018, raising the identical sentencing error that was corrected. There is no evidence 

in the record that Mr. Garcia alerted Mr. Baker, appellant’s appellate counsel, that the 

error had been corrected, and Mr. Baker did not file any additional pleadings with this 

court in the pending appeal in F075773. There is no evidence Mr. Garcia advised this 

court the sentencing error had been resolved, attempted to file a notice of appeal from the 

court’s resentencing decision of September 7, 2018, or sought to join this issue with the 

pending appeal in F075773.

THIS COURT’S OPINION IN THE SECOND APPEAL

On December 17, 2018, this court filed its nonpublished opinion in appellant’s 

second appeal, People v. Gutierrez, supra, F075773. After an extensive review of section 

1170.1, subdivision (g), as interpreted by People v. Le (2015) 61 Cal.4th 416 and 

Gonzalez, we agreed that appellant could not be sentenced for both the great bodily injury 

and gang enhancements attached to his conviction in count 1, assault by means of force 

likely to produce great bodily injury, and the matter had to be remanded for resentencing.

The appellate record before this court only contained the first amended abstract of 

judgment filed after remand from appellant’s first appeal. We noted there were

additional errors in that abstract that transposed the statutory basis for the gang 

enhancements attached to counts 1 and 2.

5 The abstract again erroneously stated the five-year enhancement was imposed 

pursuant to section “667(5)(1).”
14.

We further noted that appellant’s petition for resentencing, filed in pro. per., and 

the underlying basis for his second appeal, “also asserted he was entitled to ‘a “youthful 

offender parole hearing” ’ under Miller v. Alabama (2012) 567 U.S. 460 and Senate Bills 

260 and 261, which added section 3051. On remand, appellant may raise the issue of

whether he qualifies for a hearing pursuant to section 3051. We express no opinion on 

the merits of such a claim.”

This court’s disposition stated, “Appellant’s sentence is vacated, and the matter is 

remanded for resentencing pursuant to section 1170.1, subdivision (g). On remand, the 

court must correct the abstract of judgment to reflect that the gang enhancement for 

count 2 was imposed pursuant to section 186.22, subdivision (b)(1)(A). In all other 

respects, the judgment is affirmed.”

On February 19, 2019, remittitur was issued.

Documents Belatedly Filed with This Court

On February 25, 2019, within one week of the remittitur being issued and after this 

court lost jurisdiction, the superior court finally filed with this court the minute order and 

third amended abstract of judgment for the resentencing hearing held on September 7, 

2018, showing the Gonzalez sentencing error was corrected, the great bodily injury 

enhancement stricken, and that appellant was resentenced to 26 years eight months. 

These documents had not been previously filed with this court.

PROCEEDINGS ON THE SECOND REMAND

The instant appeal is based on the proceedings that occurred after this court’s 

second appellate opinion was filed that vacated appellant’s sentence and remanded the 

matter.

On or about June 8, 2020, the superior court received a letter from Michael Cross, 

identified as appellant’s trial counsel, asking about the status of appellant’s case after the 

remand from the second appeal. Mr. Cross stated the September 7, 2018, minute order 

showed that appellant had been resentenced, but this court filed an appellate opinion on 
15.

the same issue on December 17, 2019. Mr. Cross asked the superior court if there were 

any further hearings scheduled as a result of that appeal.

On June 24, 2020, the superior court ordered the instant case placed on calendar 

for a hearing on July 17, 2020, in light of this court’s opinion in the second appeal 

vacating the sentence.

Appellant’s Sentencing Briefs

On July 16, 2020, Mr. Cross filed a brief with the superior court in anticipation of 

the scheduled hearing, summarized the procedural history of the case, and stated that this 

court’s opinion in the second appeal vacated the sentence and remanded the matter for 

correction of his sentence.

Mr. Cross acknowledged that appellant was already resentenced on the 

enhancements at the September 7, 2018 hearing, but argued the superior court should 

vacate the entirety of the sentence imposed on that date because appellant was not 

notified or personally present for that hearing.

Mr. Cross further argued that at the resentencing hearing on September 7, 2018, 

the superior court should have “followed the order of the appellate court” to strike the 

great bodily injury enhancement and simply reduce his sentence by three years, instead of 

imposing the upper term for count 1.

6

Mr. Cross requested the court conduct another sentencing hearing where appellant 

would be present, and the court could reconsider the entirety of his sentence, including 

whether to dismiss the section 667, subdivision (a)(1) prior serious felony conviction 

enhancement originally imposed at the 2008 sentencing hearing, based on subsequent 

statutory amendments.

6 Mr. Cross’s argument about this court’s alleged order is refuted by the 

undisputed facts. The superior court held the resentencing hearing on September 7, 2018, 

in response to CDCR’s letter about the sentencing error based on Gonzalez. This court’s 

opinion in the second appeal was filed in December 2018.
16.

The scheduled July 2020 hearing was continued.

On August 7, 2020, Mr. Cross filed further briefing and, despite his complaints 

about appellant’s absence from the 2018 resentencing hearing, he waived appellant’s 

presence at the upcoming hearing.

Mr. Cross argued this court’s opinion in the second appeal vacated appellant’s 

existing sentence, and that included the term imposed at the resentencing hearing on 

September 7, 2018. Mr. Cross further argued the superior court was only required to 

strike the great bodily injury enhancement at that hearing, and it now must reimpose the 

midterm for count 1, so that his aggregate term would be reduced from 27 years to 24 

years. Mr. Cross asserted the upper term imposed at the September 7, 2018 resentencing 

hearing was invalid because appellant did not receive notice of the hearing and did not 

attend, the court failed to give reasons in support of the upper term, and there was no 

evidence that the original sentencing court intended to impose an aggregate term of 27 

years.

Mr. Cross again argued that at the upcoming hearing, the court was required to 

reimpose the midterm on count 1 and consider whether to dismiss the prior serious felony 

conviction enhancement based on subsequent legislative amendments to section 667, 

subdivision (a)(1) and section 1385, which gave the court discretion to strike the fiveyear term.

Mr. Cross acknowledged that appellant’s pro. per. petition requested a youthful 

offender parole hearing under Miller, and this court declined to address the issue and 

stated appellant could raise the matter at the hearing on remand. Mr. Cross stated 

appellant was 25 years old or younger when he committed the offenses, but he was 

ineligible for youthful offender consideration because of his second strike. Given this 

background, Mr. Cross argued the superior court should consider a motion pursuant to 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss the prior strike 

conviction so he would be eligible for a youthful offender hearing.
17.

The People’s Opposition

On August 27, 2020, the People filed opposition to appellant’s sentencing brief. 

As to the September 7, 2018, resentencing hearing, the People stated that appellant’s 

attorney, Mr. Garcia, received notice of the hearing over a month earlier, but he never 

requested transportation of appellant from state prison to attend the hearing. The People 

asserted counsel’s failure to do so, and counsel’s participation in the resentencing hearing 

without objection, amounted to waiver of appellant’s presence. The People further 

argued that a resentencing hearing held in a party’s absence is subject to a harmless error 

analysis under Chapman v. California (1967) 386 U.S. 18, and appellant failed to show 

prejudicial error resulting from his absence.

The People stated this court’s second appellate opinion did not refer to any of the 

resentencing hearings held in 2018, and speculated this court was unaware that 

appellant’s sentence had already been corrected. As a result, the People argued the 

disposition in this court’s second appellate opinion, that vacated appellant’s sentence and 

remanded for resentencing, amounted to a “legal nullity” because the errors had already 

been corrected by the superior court at the September 7, 2018 hearing.

The People further stated the superior court had jurisdiction to recall and 

resentence appellant and correct the legal errors on September 7, 2018, based on 

section 1170, subdivision (d), even though appellant’s second appeal was pending. 

Appellant never filed a notice of appeal from the court’s resentencing on September 7, 

2018, and that sentence was now final and no longer subject to review.

The People concluded: “While it is unfortunate that judicial resources were 

wasted considering an appeal from a sentence that was no longer in effect, the end result 

is that the Court of Appeal[’]s opinion commands no further action in this case because it 

ordered a sentence vacated that had already been vacated months prior.”
18.

The Superior Court’s Hearing on Remand

On August 28, 2020, Judge Paden held the hearing on remand after the second 

appellate opinion. Mr. Cross represented appellant.

The court noted the great bodily injury enhancement was stricken on September 7, 

2018. The prosecutor stated the court had jurisdiction to correct the erroneous sentence 

on September 7, 2018, while the matter was pending on appeal, pursuant to section 1170, 

subdivision (d), and the court was not required to take any further action since the 

sentencing error had been corrected.

The court agreed no further action was required, “but somehow it ended up back 

in front of me. [¶] And I guess it was up on appeal and the Appellate Court didn’t 

realize Judge Kalashian had already done that.”

Mr. Cross replied that the court currently had jurisdiction to resentence appellant 

because the appellate court had vacated the sentence and remanded the matter. He 

further argued the court imposed an illegal sentence on September 7, 2018, because it 

conducted that hearing in appellant’s absence. Mr. Cross argued the sentence was illegal 

because the court was only “authorized” to strike the great bodily injury enhancement to 

reduce appellant’s sentence from 27 years to 24 years, but instead it improperly 

resentenced him to the upper term for count 1 so that his aggregate sentence was 26 years 

eight months.

Mr. Cross asked the court to reimpose the original sentence with the midterm for 

count 1, and simply strike the three-year term for the great bodily injury enhancement so 

that appellant’s sentence was reduced from 27 years to 24 years. Mr. Cross argued that if 

the court failed to reimpose the midterm for count 1, it had to explain why it was 

imposing the upper term or the matter would again be appealed.

Mr. Cross also asked the court to exercise its discretion to dismiss the prior serious 

felony enhancement of five years, based on subsequent amendments to section 667, 
19.

subdivision (a) and section 1385 that occurred after appellant’s original sentencing 

hearing in 2008.

Finally, Mr. Cross asked the court to dismiss the prior strike conviction pursuant 

to Romero, so appellant would be eligible for a youthful offender parole hearing “because 

that is something that the Appellate Court sent back here to consider.” Mr. Cross argued 

the appellate court remanded the matter “for more than one reason,” and the court had 

jurisdiction to consider appellant for a youthful offender parole hearing by dismissing the 

prior strike conviction.

The prosecutor replied that appellant was represented by counsel when the court

scheduled the September 2018 hearing, but counsel did not ask for a continuance or for a 

transportation order to bring appellant to the hearing. In addition, a party’s absence from 

a resentencing hearing was subject to a harmless error analysis, and Mr. Cross failed to 

explain why appellant’s absence was prejudicial.

The prosecutor again argued the appellate opinion amounted to a “nullity.” “I 

don’t disagree that the remittitur commands action. I think I set forth in our brief that the 

remittitur is a no-order. It is an appeal from a judgment that was no longer in effect at the 

time that it was rendered. The sentence imposed in 2008 was vacated in September 2018. 

So the Court of Appeals’ order vacating that sentence has no legal effect. You can’t 

reinstate a sentence previously vacated for the sole purpose of then vacating it again. I 

think it is very clear that the Court of [A]ppeals would not have ordered anything if it had 

known that we had already dealt with this issue at the Superior Court level.”

The prosecutor further stated the appellate opinion noted a clerical error in the 

abstract, but that error was separately corrected in April 2018. The prosecutor concluded 

the appellate opinion did not “command[] anything. They are under the mistaken 

impression that an illegal sentence was in effect, but an illegal sentence was no longer in 

effect.”
20.

The Court’s Ruling

The court stated the appellate court remanded the matter to strike the great bodily 

injury enhancement for count 1 and correct the abstract of judgment’s error on the 

statutory basis for the gang enhancement attached to count 2. “Now what happened here 

is the Appellate Court didn’t know that Judge Kalashian had already done that. He had 

already remedied that issue. When that happened, as far as I’m concerned, the case was 

done.”

The court denied Mr. Cross’s motion to resentence appellant to the midterm on 

count 1, dismiss the prior strike conviction, and dismiss the prior serious felony 

enhancement. The court noted that Judge Coulliard, who heard the trial, decided to 

sentence appellant to 27 years, but that sentence was improper because the great bodily 

injury enhancement could not have been imposed. The court had “no reason to secondguess or play Monday-morning quarterback” as to why Judge Coulliard felt that 27 years 

was the appropriate sentence since he heard the trial and evidence.

“So if I even had the discretion to strike the nickel prior or to strike the 

strike, I would not do that. I would not exercise that discretion because I 

would not do that. I would not exercise that discretion because I would 

defer to Judge Culliard’s [sic] analysis and what he felt was a fair sentence 

and handling this matter.... [¶] The way I see it ... Judge Culliard [sic] 

had a number he was trying to arrive at. How he got there was totally up to 

him in maneuvering consecutive sentences versus concurrent sentences. 

I’m looking more at the number, the final number he was trying to achieve 

after hearing all the evidence. That’s the way I see it.” (Italics added.)

The court asked if the abstract had already been corrected, and the prosecutor said 

yes. The court adjourned the hearing and did not file another abstract of judgment.

On August 31, 2020, Mr. Cross, on appellant’s behalf, filed the instant notice of 

appeal of the “sentence imposed on 8-28-20.”
21.

DISCUSSION

I. The Superior Court’s Jurisdiction to Resentence While an Appeal is 

Pending

Before reaching the issues raised by the parties, including the People’s motion to 

dismiss this appeal, we begin with whether the superior court had jurisdiction to correct 

and/or modify appellant’s sentence in 2018 while appellant’s second appeal was pending 

before this court.

A. Resentencing While an Appeal is Pending

“ ‘The filing of a valid notice of appeal vests jurisdiction of the cause in the 

appellate court until determination of the appeal and issuance of the remittitur.’ 

[Citations.] The purpose of the rule depriving the trial court of jurisdiction pending 

appeal ‘ “is to protect the appellate court’s jurisdiction by preserving the status quo until 

the appeal is decided. The rule prevents the trial court from rendering an appeal futile by 

altering the appealed judgment ... by conducting other proceedings that may affect it.” ’ ” 

(People v. Alanis (2008) 158 Cal.App.4th 1467, 1472 (Alanis).)

“Because an appeal divests the trial court of subject matter jurisdiction, the court 

lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] 

Thus, action by the trial court while an appeal is pending is null and void. [Citations.] 

Indeed, ‘[s]o complete is this loss of jurisdiction effected by the appeal that even the 

consent of the parties has been held ineffective to reinvest the trial court with jurisdiction 

over the subject matter of the appeal and that an order based upon such consent would be 

a nullity.’ ” (Alanis, supra, 158 Cal.App.4th at pp. 1472–1473.)

There are exceptions to this rule. “One exception is that, notwithstanding the 

pendency of an appeal, ‘[t]he trial court is allowed to vacate a void – but not voidable –

judgment.’ [Citations.] However, ‘[a] judgment is void rather than voidable only if the 

trial court lacked subject matter jurisdiction.’ ” (Alanis, supra, 158 Cal.App.4th at 

p. 1473.)
22.

Another exception to the general rule is “based on the court’s inherent power ‘ “to 

correct clerical errors in its records so as to make these records reflect the true facts. 

[Citations.] The power exists independently of statute and may be exercised in criminal 

as well as in civil cases. [Citation.] The power is unaffected by the pendency of an 

appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on 

its own motion or upon the application of the parties.” [Citation.] Courts may correct 

clerical errors at any time, and appellate courts ... that have properly assumed jurisdiction 

of cases have ordered correction of abstracts of judgment that did not accurately reflect 

the oral judgments of sentencing courts.’ ” (Alanis, supra, 158 Cal.App.4th at pp. 1473–

1474.) “ ‘Changes which correct errors, mistakes and omissions made through 

inadvertence, but do not involve the exercise of the judicial function, are considered 

corrections of clerical errors that leave the original judgment intact.’ ” (Id. at p. 1474.)

A third exception is based on former section 1170, subdivision (d), that authorized 

trial courts to recall and resentence defendants while an appeal was pending.

7

(People v.

McCallum (2020) 55 Cal.App.5th 202, 210; People v. Ramirez (2008) 159 Cal.App.4th 

1412, 1424; Alanis, supra, 158 Cal.App.4th at p. 1475; Portillo v. Superior Court (1992) 

10 Cal.App.4th 1829, 1836.) CDCR used former section 1170, subdivision (d), to bring 

to the trial court’s attention unauthorized sentences in need of correction. (People v. 

Williams (2021) 65 Cal.App.5th 828, 832, 834.)

7 On October 8, 2021, the Governor signed Assembly Bill No. 1540, which took 

effect on January 1, 2022 (Stats. 2021, ch. 719). Assembly Bill No. 1540 substantially 

altered the recall and resentencing process, and moved the resentencing provisions in 

former section 1170, subdivision (d)(1) to a new section 1170.03. (Stats. 2021, ch. 719, 

§ 3.1.) As relevant to this case, section 1170.03 similarly provided that the court may 

recall and resentence upon the recommendation of certain authorized parties, including 

the Secretary of CDCR. (§ 1170.03.)

Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no 

change in text (Stats. 2022, ch. 58, § 9).
23.

As explained above, the superior court held a resentencing hearing on 

September 7, 2018, while appellant’s appeal was pending, as a result of CDCR’s letter 

stating that it had jurisdiction to correct appellant’s sentence pursuant to then-section 

1170, subdivision (d). At that time, then-section 1170, subdivision (d) stated:

“ ‘When a defendant subject to this section or subdivision (b) of Section 

1168 has been sentenced to be imprisoned in the state prison or a county 

jail pursuant to subdivision (h) and has been committed to the custody of 

the secretary or the county correctional administrator, the court may, within 

120 days of the date of commitment on its own motion, or at any time upon 

the recommendation of the secretary or the Board of Parole Hearings in the 

case of state prison inmates, the county correctional administrator in the 

case of county jail inmates, ... recall the sentence and commitment

previously ordered and resentence the defendant in the same manner as if

[he or she] had not previously been sentenced, provided the new sentence, 

if any, is no greater than the initial sentence. The court resentencing under 

this subdivision shall apply the sentencing rules of the Judicial Council so 

as to eliminate disparity of sentences and to promote uniformity of 

sentencing. The court resentencing under this paragraph may reduce a 

defendant’s term of imprisonment and modify the judgment, including a 

judgment entered after a plea agreement, if it is in the interest of justice. 

The court may consider postconviction factors, including, but not limited 

to, the inmate’s disciplinary record and record of rehabilitation while 

incarcerated, evidence that reflects whether age, time served, and 

diminished physical condition, if any, have reduced the inmate’s risk for 

future violence, and evidence that reflects that circumstances have changed 

since the inmate’s original sentencing so that the inmate’s continued 

incarceration is no longer in the interest of justice. Credit shall be given for 

time served.’ (Stats. 2018, ch. 36, § 18, eff. June 27, 2018, italics added.)” 

(People v. Pillsbury (2021) 69 Cal.App.5th 776, 785.)

As will be further explained below, when a hearing is conducted upon a notice of 

an illegality in the sentence, the trial court is allowed to reconsider all of its sentencing 

choices leading to the aggregate term. (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
24.

B. Analysis

The superior court had jurisdiction to file the second and third amended abstracts 

of judgment in, respectively, April and September 2018, even though appellant’s second 

appeal was pending before this court.

The superior court held the hearing in April 2018 in response to a letter from 

CDCR and corrected the error in the first amended abstract of judgment that transposed 

the subdivisions that were the basis for imposing the gang enhancements for counts 1 

and 2. The court had jurisdiction to correct the clerical error and file the second amended 

abstract of judgment even though there was a pending appeal. (Alanis, supra, 158 

Cal.App.4th at pp. 1473–1474.)

As to the September 7, 2018, resentencing hearing, it was held in response to 

CDCR’s letter to the superior court, expressly advising the court to recall and resentence 

appellant pursuant to section 1170, subdivision (d), to correct the unauthorized 

imposition of both the great bodily injury and gang enhancements that were prohibited by 

Gonzalez. The superior court thus had jurisdiction to resentence appellant on September 

7, 2018, and file the third amended abstract of judgment, even though appellant’s second 

appeal was pending before this court. (Alanis, supra, 158 Cal.App.4th at p. 1475; People

v. McCallum, supra, 55 Cal.App.5th at p. 210; Portillo v. Superior Court, supra, 10 

Cal.App.4th at p. 1836.)

II. Failure to Notify This Court About the Second and Third Amended Abstracts

While the superior court had jurisdiction to correct and modify appellant’s 

sentence while his second appeal was pending, there was a complete failure to notify this 

court about the existence of the second and third amended abstracts of judgment, and the 

effect of that failure has extended into the instant appeal.

A. Duty to Advise the Court About Mootness

As previously explained, “[t]he purpose of the rule depriving the trial court of 

jurisdiction pending appeal ‘ “is to protect the appellate court’s jurisdiction by preserving 
25.

the status quo until the appeal is decided. The rule prevents the trial court from rendering 

an appeal futile by altering the appealed judgment ... by conducting other proceedings 

that may affect it.” ’ ” (Alanis, supra, 158 Cal.App.4th at p. 1472.)

“As a general rule, an appellate court only decides actual controversies. It is not 

the function of the appellate court to render opinions ‘ “ ‘ “upon moot questions or 

abstract propositions, or ... declare principles or rules of law which cannot affect the 

matter in issue in the case before it.” ’ ” ’ [Citation.] ‘[A] case becomes moot when a 

court ruling can have no practical effect or cannot provide the parties with effective 

relief.’ ” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) “Thus, an ‘ “action that 

originally was based on a justiciable controversy cannot be maintained on appeal if all the 

questions have become moot by subsequent acts or events.” ’ [Citations.] Put another 

way, ‘ “[a]n appeal should be dismissed as moot when the occurrence of events renders it 

impossible for the appellate court to grant appellant any effective relief.” ’ ” (People v. 

Pipkin (2018) 27 Cal.App.5th 1146, 1149–1150; People v. DeLeon (2017) 3 Cal.5th 640, 

645; People v. Delong (2002) 101 Cal.App.4th 482, 486.)

A lawyer has a duty to inform the court when an issue he or she has raised might 

have become moot. (Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1300–

1301.) “It is the duty of appellants and their counsel promptly to dismiss an appeal once 

it becomes moot ‘and not put respondent, his counsel, and this court to the time and 

expense of reviewing an appeal that had become moot ....’ ” (Id. at p. 1301.)

B. Analysis

On April 17, 2018, the superior court convened a hearing in response to CDCR’s 

first letter about a clerical error in the abstract. Mr. Garcia, appellant’s trial attorney, was 

present. The court amended the abstract of judgment to correct the transposition of the 

statutes under which the gang enhancements were imposed. The superior court filed 

second amended abstract on April 18, 2018.
26.

Neither the minute order nor the second amended abstract was filed with this court 

to augment the record in appellant’s pending appeal, even though all relevant parties were 

aware of the pending appeal. This failure, however, did not moot the pending appeal 

since it only corrected the clerical error in the first amended abstract of judgment

The more problematic issue is what happened – or did not happen – after the 

superior court again corrected appellant’s sentence. After moving to strike his initial 

Wende brief, appellate counsel filed a supplemental brief on June 15, 2018, that raised a 

single issue in his second appeal – that the superior court improperly imposed both the 

great bodily injury and gang enhancements as to count 1, in violation of Gonzalez, and 

section 1170.1, subdivision (g). According to the proof of service, a copy of this brief

was served on the superior court, Mr. Garcia, and the district attorney’s office.

On August 27, 2018, Mr. Garcia was present when the superior court set a hearing 

to address CDCR’s letter about a sentencing error based on the same issue – the 

erroneous imposition of both the great bodily injury and gang enhancements for count 1. 

On September 7, 2018, the court held the hearing where it ordered the great bodily injury 

enhancement stricken because of the sentencing error under Gonzalez and modified the 

sentence from 27 years to 26 years eight months. Mr. Garcia was again present but failed 

to notify the superior court that the identical issue was pending before this court, and 

similarly failed to advise this court – or apparently appellant’s appointed appellate 

counsel of record – that the single issue raised in the pending appeal had been corrected 

by the superior court.

In addition to Mr. Garcia’s omissions, the superior court and the district attorney’s 

office were also aware that appellant’s second appeal was pending before this court when 

it resentenced him but failed to augment the appellate record with the minute order and 

third amended abstract of judgment. Indeed, the superior court failed to advise this court 

about the resentencing and third amended abstract until one week after remittitur was 
27.

issued after the second appeal, and after this court lost jurisdiction to grant rehearing and 

dismiss the appeal as moot.

After the second appeal, the superior court scheduled a hearing on remand, and the 

People filed a brief with the superior court in opposition to appellant’s motion for another 

resentencing. The People acknowledged this court’s second appellate opinion did not 

refer to any of the resentencing hearings held in 2018, and speculated this court was 

unaware that appellant’s sentence had already been corrected. The People argued the 

disposition in this court’s second appellate opinion, that vacated appellant’s sentence and 

remanded for resentencing, amounted to a “legal nullity” because the errors had already 

been corrected by the superior court at the September 7, 2018 hearing, and considered it 

“unfortunate that judicial resources were wasted considering an appeal from a sentence 

that was no longer in effect....”

At the August 28, 2020 hearing on remand after the second appeal, the prosecutor 

again stated the appellate opinion amounted to a “nullity” and the remittitur was “a noorder” because it resulted after an appeal “from a judgment that was no longer in effect at 

the time that it was rendered.... I think it is very clear that the Court of [A]ppeals would 

not have ordered anything if it had known that we had already dealt with this issue at the 

Superior Court level.” The prosecutor concluded the appellate opinion did not 

“command[] anything. They are under the mistaken impression that an illegal sentence 

was in effect, but an illegal sentence was no longer in effect.”

In the midst of these comments, neither the court nor the parties wondered why 

this court did not know appellant’s sentence had already been corrected twice while the 

second appeal was pending. More importantly, neither the court nor the parties attempted 

or seemed interested to determine why there were numerous missed opportunities to so 

advise this court, particularly since the relevant parties had been served with appellant’s 

brief about Gonzalez and were aware of the pending appeal raising the identical issue that 

was corrected in 2018.
28.

Mr. Garcia did not appear on appellant’s behalf in the second appeal but had been 

served with the appellate brief. The record strongly infers that Mr. Garcia failed to 

inform Mr. Baker, appellant’s appointed counsel in the second appeal, that appellant’s 

sentence had been modified twice while the appeal was pending. There is no evidence in 

the record that Mr. Baker was aware of these modifications or failed to so advise the 

court during the pendency of the second appeal.

As noted by the United States Supreme Court in a similar situation, “[w]e find it 

difficult to understand the failure of counsel to fully inform” this court that the only issue 

pending in the second appeal had been resolved and rendered moot. (Fusari v. Steinberg

(1975) 419 U.S. 379, 387, fn. 12.) “It is disconcerting to this Court to learn of relevant 

and important developments in a case” after the second appellate opinion was filed, and 

in the course of this third appeal. (Id. at p. 390, conc. opn. of Burger, J.) “This Court 

must rely on counsel to present issues fully and fairly, and counsel have a continuing duty 

to inform the Court of any development which may conceivably affect an outcome.” (Id. 

at p. 391.)

As previously noted, we expect this case to serve as a cautionary tale in the hope 

that similar miscues will not occur in future cases to avoid the waste of judicial resources.

III. The People’s Motion to Dismiss the Instant Appeal

While failing to do so in the course of the second appeal, the People have moved 

for this court to dismiss this third appeal because this is an “old case”, appellant’s 

arguments in this appeal are solely based on what happened at the September 7, 2018, 

resentencing hearing, he never filed a notice of appeal from that hearing even though he 

was represented by counsel, and his complaints about what happened at that hearing are 

not cognizable in this appeal.

The People argue that the instant notice of appeal was filed from the superior 

court’s “sentence” purportedly imposed on August 28, 2020, which was the hearing held 

after remand from the second appeal, but the court did not impose any sentence at that 
29.

hearing and instead declined to take any further action since appellant’s sentence had

already been corrected on September 7, 2018. The People conclude that the court’s order 

on August 28, 2020, that it was not taking any further action in the case, was not an 

appealable order and the instant appeal must be dismissed.

Appellant argues his ability to file a timely notice of appeal after the September 7, 

2018, resentencing hearing was impaired by the superior court’s failure to timely advise 

this court about that hearing and timely file the third amended abstract of judgment.

Section 1237, subdivision (b) states that a defendant may take an appeal from “any 

order made after judgment, affecting the substantial rights of the party.” A defendant has 

60 days to file a notice of appeal from such an order, and the order becomes final if he 

fails to do so. (Cal. Rules of Court, rules 8.104(a), 8.308(a).)

As explained above, the superior court had jurisdiction to conduct the resentencing 

hearing on September 7, 2018, under the provisions of then-section 1170, subdivision (d), 

even though an appeal was pending. The instant appeal is a result of what happened after 

this court filed the opinion in appellant’s second appeal, and ordered appellant’s sentence 

vacated and remanded the matter for (1) resentencing under section 1170.1, subdivision 

(g), Gonzalez, and Le, because of the error involving the two enhancements; 

(2) correction of the clerical errors where the subdivisions for the gang enhancements 

were transposed; and (3) appellant could raise his arguments about a youthful offender 

parole hearing on remand, without addressing the merits.

After the second appellate opinion was filed and remittitur was issued, appellant’s 

counsel requested the superior court conduct a hearing on remand. The superior court 

placed the matter on calendar, and held the hearing on August 28, 2020, at which point it 

acknowledged the sentencing error with the enhancements had been corrected. 

Appellant’s counsel argued the court improperly resentenced appellant on September 7, 

2018, without requiring his presence, moved for the court to conduct another 

resentencing hearing, and asked the court to reinstate the midterm originally imposed for 
30.

count 1; the court denied the motion. Appellant’s counsel then requested the court 

exercise its discretion to dismiss the section 667, subdivision (a) enhancement based on 

subsequently enacted legislation; the court also denied this motion. Finally, appellant 

raised the issue that this court left open in the second appeal, as to whether he was 

eligible for a youthful offender parole hearing. Appellant’s counsel moved to dismiss the 

prior strike conviction so he would be eligible; the court denied that motion too. 

Appellant thereafter filed the instant notice of appeal.

Appellant’s current claims about the resentencing hearing on September 7, 2018, 

are no longer cognizable. Mr. Garcia represented appellant at that hearing and had been 

served with appellant’s brief in the second appeal, but did not attempt to file an 

augmented record, or alert appointed appellate counsel that the superior court allegedly 

committed other errors in correcting the enhancements.

As to the other issues raised in this appeal, we find they are cognizable since the 

superior court denied his motion to dismiss the prior serious felony enhancement and 

other sentencing issues. We thus deny the People’s motion to dismiss the instant appeal 

as moot.

IV. Appellant’s Contentions in This Appeal

We turn to the issues raised by appellant in the instant appeal. While his 

contentions about the court’s sentencing decisions on September 7, 2018, have arguably 

been forfeited, we will nevertheless address these issues to avoid future claims of 

ineffective assistance because of the failure to perfect the record to raise these issues as 

part of his pending second appeal.

A. The Superior Court’s Decision to Impose the Upper Term

At the August 28, 2020 hearing on remand after the second appeal, Mr. Cross, 

appellant’s counsel, argued the superior court had to completely resentence appellant 

because it improperly modified his sentence by imposing the upper term for count 1 after 

it had dismissed the great bodily injury enhancement. Mr. Cross argued the superior 
31.

court only had discretion to dismiss the great bodily injury enhancement and reduce 

appellant’s aggregate term from 27 years to 24 years.

Appellant has not raised this issue in this appeal, and concedes the superior court 

was “entitled to reconsider [his] entire sentence” when it resentenced him pursuant to 

former section 1170, subdivision (d) on September 7, 2019.

We again note that when a resentencing hearing is conducted upon a notice of an 

illegality in the sentence, as provided under former section 1170, subdivision (d), the trial 

court is not limited to merely striking the illegal component in the sentence. (People v. 

Hill, supra, 185 Cal.App.3d at p. 834.) The court is allowed to reconsider all of its 

sentencing choices because “an aggregate prison term is not a series of separate 

independent terms, but one term made up of interdependent components. The invalidity 

of one component infects the entire scheme.” (Ibid.) Under such circumstances, the 

court is “entitled to rethink the entire sentence to achieve its original and presumably 

uncharged goal.” (Ibid.) The new sentence, however, must not be more severe than the 

original one. (People v. Hanson (2000) 23 Cal.4th 355, 358–360.)

The superior court thus had discretion on September 7, 2018, to impose the upper 

term for count 1 after it dismissed the great bodily injury enhancement, and the modified 

aggregate term of 26 years eight months did not exceed the original sentence of 27 years

B. Appellant’s Absence from the September 7, 2018 Hearing

Appellant argues that at the superior court’s hearing on remand on August 28, 

2020, it should have granted his motion to fully resentence him because he was not 

notified about or present for the resentencing hearing on September 7, 2018.

Section 977, subdivision (b)(1) requires that defendants in felony cases shall be 

personally present at the imposition of sentence, and “at all other proceedings” unless this 

right is waived by a written waiver executed in open court. (People v. Vong (1997) 

58 Cal.App.4th 1063, 1066, italics omitted; People v. Yanaga (2020) 58 Cal.App.5th 619, 

625-626.) The violation of a defendant’s right to be present at a contested resentencing 
32.

hearing is error of federal constitutional dimension and is harmless only if it can be 

concluded beyond a reasonable doubt that the deprivation did not affect the outcome of 

the proceeding. (People v. Sims (2018) 23 Cal.App.5th 987, 998; Chapman v. California, 

supra, 386 U.S. at p. 24.)

The superior court conducted the September 7, 2018, resentencing hearing in 

response to CDCR’s letter about the sentencing hearing regarding the enhancements. 

Prior to that hearing, however, the court convened on August 27, 2018, and stated it 

would place the matter on calendar to consider CDCR’s letter. Mr. Garcia was present at 

that August 27, 2018 hearing; he had represented appellant both at his trial, and at the 

resentencing hearing held in April 2018 in response to CDCR’s first letter about the 

clerical error. However, Mr. Garcia did not ask the court to order appellant’s 

transportation from state prison to attend the hearing where it would address CDCR’s 

second letter.

At the September 7, 2018 hearing, Mr. Garcia objected to the court’s decision to 

impose the upper term, but he did not object to appellant’s absence from the hearing or, 

as we previously noted, attempt to notify appellate counsel that alleged errors occurred at 

that hearing.

In this appeal, appellant acknowledges that his absence from the resentencing 

hearing of September 7, 2018, is evaluated under the harmless error standard of 

Chapman, but asserts his absence was prejudicial because appellant “did not have an 

opportunity to personally emphasize any mitigating evidence that would weigh in favor 

of leniency” when the court resentenced him on that date. Appellant argues that while 

the superior court “may not have been persuaded by any new evidence or argument and 

certainly may have imposed the identical sentence, this does not foreclose the possibility 

beyond a reasonable doubt that the trial court would have exercised its discretion 

differently” if he had been present at the September 7, 2018 hearing.
33.

Appellant’s arguments are undermined by what happened when this case was 

remanded to the superior court after the second appeal. Appellant was represented by 

Mr. Cross, who filed two sentencing briefs in anticipation of the scheduled hearing. 

Mr. Cross argued the superior court should vacate the entirety of the sentence imposed on 

September 7, 2018, because appellant was not notified or personally present for that 

hearing, but also waived appellant’s presence at the hearing scheduled for August 28, 

2020, where the court would address his motions to resentence appellant, reimpose the 

midterm, and dismiss the prior strike and prior serious felony enhancement. At the 

August 28, 2020 hearing, Mr. Cross vigorously argued appellant’s case for another 

resentencing, but did not make an offer of proof as to any issues that appellant would 

have personally raised if he had been present.

We find appellant’s absence from the September 7, 2018, resentencing hearing 

was harmless beyond a reasonable doubt.

C. Failure to Dismiss the Prior Strike and Prior Serious Felony 

Enhancement

Also in this appeal, appellant argues that when the superior court held the hearing 

on remand after the second appeal on August 28, 2020, it had jurisdiction to exercise its 

discretion to dismiss the five-year prior serious felony enhancement previously imposed 

under section 667, subdivision (a)(1). Appellant asserts the matter must be remanded 

again so the court can exercise its discretion about the five-year enhancement.

Appellant’s arguments are based on Senate Bill No. 1393 (2017–2018 Reg. Sess.), 

effective on January 1, 2019, when sections 667 and 1385 were amended to remove the 

prohibitions on striking or dismissing a prior serious felony enhancement. (See Stats. 

2018, ch. 1013, §§ 1–2; People v. Garcia (2018) 28 Cal.App.5th 961, 971; People v.

Zamora (2019) 35 Cal.App.5th 200, 208.) “... Senate Bill 1393 applies retroactively to 

all cases or judgments of conviction in which a five-year term was imposed at sentencing, 

based on a prior serious felony conviction, provided the judgment of conviction is not
34.

final when Senate Bill 1393 becomes effective on January 1, 2019.” (People v. Garcia,

supra, 28 Cal.App.5th at pp. 971–972, italics added.)

As noted above, the court held the September 7, 2018, resentencing hearing in 

response to CDCR’s letter that it had to correct appellant’s sentence pursuant to former 

section 1170, subdivision (d). At the time of the 2018 hearing, there was a split of 

authority on the issue of the finality of a judgment for purposes of retroactive application 

of ameliorative changes to the law. (See People v. McMurray (2022) 76 Cal.App.5th 

1035; People v. Montes (2021) 70 Cal.App.5th 35, 47 and cases cited therein.)

Assembly Bill No. 1540, effective on January 1, 2022 (2021–2022 Reg. Sess.) 

(Stats. 2021, ch. 719) (Assembly Bill 1540), substantially altered the recall and 

resentencing process, and moved the resentencing provisions in former section 1170, 

subdivision (d)(1) to a new section 1170.03. (Stats. 2021, ch. 719, § 3.1.) Section 

1170.03 requires that when recall and resentencing is initiated on the court’s own motion 

or upon the recommendation of the Secretary, the court “shall ... apply any changes in 

law that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) 

Assembly Bill 1540 clarified “the provision’s application to ‘ameliorative laws ... that 

reduce sentences or provide for judicial discretion, regardless of the date of the offense of 

conviction.’ ” (People v. McMurray, supra, 76 Cal.App.5th at p. 1038.)

“ ‘[W]hen the record shows that the trial court proceeded with sentencing on the ... 

assumption it lacked discretion, remand is necessary so that the trial court may have the 

opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] 

Defendants are entitled to “sentencing decisions made in the exercise of the 

‘informed discretion’ of the sentencing court,” and a court that is unaware of 

its discretionary authority cannot exercise its informed discretion.’ [Citation.] But if 

‘ “the record shows that the trial court would not have exercised its discretion even if it 

believed it could do so, then remand would be an idle act and is not required.” ’ ” 

(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
35.

We find remand would be an idle act even if the superior court believed it did not 

have discretion at the August 28, 2020 hearing to dismiss the prior serious felony 

enhancement or even the prior strike conviction. When the court denied appellant’s 

various sentencing motions at that hearing, it stated there was “no reason to second-guess 

or play Monday-morning quarterback” as to why the trial judge imposed an aggregate 

term of 27 years at the original sentencing hearing. “So if I even had the discretion to 

strike the nickel prior or to strike the strike, I would not do that. I would not exercise that 

discretion because I would not do that. I would not exercise that discretion because I 

would defer to [the trial judge’s] analysis and what he felt was a fair sentence and 

handling this matter.”8 (Italics added.)

We note that at the original sentencing hearing in 2007, the trial judge rejected 

defense counsel’s arguments to impose concurrent terms for his convictions, and instead

imposed consecutive sentences for an aggregate term of 27 years. The superior court did 

not abuse its discretion when it declined to dismiss either the prior serious felony 

enhancement or prior strike conviction at the August 28, 2020 hearing.9

8

In his petition for rehearing, appellant asserts the above analysis was based on 

“issues that were not anticipated or raised” in the parties’ briefing in violation of 

Government Code section 68081. That statute, however, “does not require us to give the 

parties the opportunity to brief every statute (or other authority) that we may apply in 

deciding the issues in their case, so long as the parties have had the opportunity to brief 

the issues themselves.” (Plumas County Dept. of Child Support Services v. Rodriquez

(2008) 161 Cal.App.4th 1021, 1029, fn. 1.) In addressing the complicated history of this 

case, and the extent of the trial court’s jurisdiction at the 2018 and 2020 hearings, this 

court analyzed the issues implicated by the People’s motion to dismiss and the 

substantive issues raised in appellant’s briefing in this third appeal and did not run afoul 

of Government Code section 68081.

9

In his petition for rehearing, appellant argues this conclusion is undermined by 

People v. Cepeda (2021) 70 Cal.App.5th 456 (Cepeda). In that case, the defendant 

entered into a plea agreement in 2018, where he pleaded guilty to carjacking and 

admitted a prior serious felony conviction and was sentenced to 15 years in prison; the 

sentence included a five-year term for the section 667, subdivision (a) prior serious 

felony enhancement as part of the plea agreement. (Id. at p. 459.) In 2020, CDCR sent a 

letter to the trial court for defendant’s sentence to be recalled pursuant to former section 
36.

V. Remand for Refiling the Abstract of Judgment

While appellant’s contentions lack merit, we are compelled to again remand this 

matter.

After the September 7, 2018 resentencing hearing, the court filed the third 

amended abstract of judgment on September 24, 2018, correctly stating that appellant

was resentenced to an aggregate term of 26 years eight months. However, the third 

amended abstract contains the clerical error that the five-year term for the prior serious 

felony conviction enhancement was imposed pursuant to section “667(5)(1)” instead of 

section “667(a)(1).”

1170, subdivision (d)(1), noted that his sentence included a five-year enhancement under 

section 667, subdivision (a), and the trial court now had discretion to consider whether to 

dismiss this enhancement in light of the amendments resulting from the enactment of 

Senate Bill No. 1393. (Id. at p. 460.) Thereafter, the trial court recalled the sentence and 

held a hearing but declined to dismiss the prior serious felony enhancement or exercise its 

discretion. Instead, the court deferred to the original sentence imposed pursuant to the 

plea agreement. (Ibid.)

Cepeda held the trial court had jurisdiction to recall and resentence the defendant 

in response to CDCR’s letter under former section 1170, subdivision (d), and decide 

whether to exercise its discretion to dismiss the prior serious felony enhancement, even 

though the enhancement was imposed as part of a plea agreement, because former section 

1170, subdivision (d)(1) “explicitly provides that resentencing is not constrained by the 

terms of a plea bargain.” (Cepeda, supra, 70 Cal.App.5th at p. 470.) Cepeda further held 

that when the trial court simply deferred to the original plea agreement, it abused its

discretion by failing to address the issue raised by CDCR’s letter to recall and resentence. 

Cepeda remanded the matter for the court to make its own independent ruling without 

being constrained by the plea agreement. (Id. at pp. 460–461.)

Cepeda does not assist appellant because in this case, CDCR advised the trial 

court to recall and resentence appellant pursuant to former section 1170, subdivision (d) 

on a sentencing error involving the great bodily injury enhancement. In contrast to 

Cepeda, the trial court complied with CDCR’s letter, recalled the sentence, and dismissed 

the great bodily injury enhancement that had been erroneously imposed. CDCR did not 

advise the trial court to recall and resentence appellant on any other matter. Instead, 

defense counsel argued the court should have exercised its discretion to dismiss both the 

prior strike conviction and the enhancement. The court did not believe it was constrained 

by a plea agreement but declined to do so, and Cepeda does not apply to the court’s 

decision not to exercise its discretion.
37.

In addition, there is still an outstanding order from this court’s disposition in the 

second appeal, where we expressly vacated appellant’s sentence in its entirety since this 

court had not been informed his sentence had already been corrected and the third 

amended abstract filed. When the superior court held the hearing on remand on August 

28, 2020, the People asserted this court’s disposition was a legal nullity. The superior 

court determined no further corrections were needed and denied appellant’s various 

motions for resentencing. However, it did not refile the third amended abstract of 

judgment. As a result, the current record could be read as showing that there was no 

valid abstract filed in this case dated after this court vacated the judgment in December 

2018, since there is nothing in the instant record, aside from this appeal, to explain the 

circumstances surrounding that disposition.

We thus remand the instant matter again to the superior court to correct the clerical 

error as to the statutory basis for the prior serious felony enhancement, and thereafter file 

a fourth amended abstract of judgment.

VI. Remand Pursuant to Senate Bill No. 567 and Assembly Bill No. 124

On July 22, 2022, this court granted appellant’s petition for rehearing. We have 

already addressed two of appellant’s contentions and found them meritless.

We now turn to two sentencing issues raised for the first time in his petition for 

rehearing, even though these issues were cognizable and not addressed while this case 

was pending on appeal.

Appellant asserts the matter must be remanded for resentencing because the trial 

court imposed an upper term on a person who was younger than 26 years old when he 

committed the offenses, the court must reconsider these sentencing decisions based on 

relevant amendments subsequently enacted by Senate Bill No. 567 (2021–2022 Reg. 

Sess.) (Senate Bill 567) (Stats. 2021, ch. 731, §§ 1.3, 2) and Assembly Bill No. 124

(2021–2022 Reg. Sess.) (Assembly Bill 124) (Stats. 2021, ch. 695, §§ 5–6), and the 

amended statutes apply since this appeal is still not yet final.
38.

A. The Upper Term and Youthful Offenders

Prior to recent amendments, former section 1170 placed “the choice of the 

appropriate term ... within the sound discretion of the court” (former § 1170, subd. (b)), 

with no presumption in favor of the lower term for youth offenders.

Effective January 1, 2022, Assembly Bill 124 and Senate Bill 567 amended 

section 1170 regarding determinate sentencing. (People v. Jones (2022) 79 Cal.App.5th 

37, 44, fn. 11.) As a result of these amendments, when three possible terms of 

imprisonment may be imposed for a crime, the trial court may only impose the upper 

term “when there are circumstances in aggravation of the crime that justify the imposition 

of a term of imprisonment exceeding the middle term, and the facts underlying those 

circumstances have been stipulated to by the defendant, or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, 

subd. (b)(2); People v. Lopez (2022) 78 Cal.App.5th 459, 464.)

These amendments to section 1170 “also created a presumption in favor of a low 

prison term when a defendant is under 26 years of age at the time of the offense.” 

(People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) As a result of the amendments, 

“unless the court finds that the aggravating circumstances outweigh the mitigating 

circumstances that imposition of the lower term would be contrary to the interests of 

justice,” the court is required to impose the lower term if one of several factors “was a 

contributing factor in the commission of the offense[.]” (§ 1170, subd. (b)(6).) These 

contributing factors include being under 26 years of age at the time of the commission of 

the offense (§§ 1016.7, subd. (b), 1170, subd. (b)(6)(B)). Section 1170, 

subdivision (b)(6)(B) does not require imposition of the lower term in every case in 

which the defendant was under age 26 at the time the crime was committed. Rather, this 

provision establishes a presumption of the lower term if the defendant’s youth was “a 

contributing factor” in his or her commission of the crime “unless the court finds that the 

aggravating circumstances outweigh the mitigating circumstances that imposition of the
39.

lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6), italics 

added.)

The amendments enacted by Senate Bill 567 and Assembly Bill 124 apply 

retroactively to all nonfinal convictions on appeal at the time they became effective. 

(People v. Flores, supra, 73 Cal.App.5th at p. 1039; People v. Gerson (2022) 

80 Cal.App.5th 1067, 1095.)10

B. Analysis

In his petition for rehearing, appellant argues the trial court must conduct another 

sentencing hearing to consider the amendments enacted by Senate Bill 567 and Assembly 

Bill 124 because it imposed an upper term at the resentencing hearing in 2018, appellant 

was 22 years old when he committed the offenses, and the amendments are retroactive 

since his case is not yet final.

In the responsive briefing to the petition, the People acknowledge these new 

sentencing laws are retroactive and potentially applicable to appellant’s case since it is 

not final but asserts that he cannot raise new issues in a petition for rehearing because he 

10 While appellant relies on Assembly Bill 124, we note that it is not 

independently operative. “During the 2021–2022 legislative term, three bills proposing 

changes to section 1170 in a variety of ways were introduced. They were Assembly 

Bill 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (Stats. 2021, ch. 719, § 2), 

and Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3). All three bills were passed by the 

Legislature in September 2021 and approved by the Governor and filed with the 

Secretary of State on October 8, 2021. Senate Bill No. 567 (2021–2022 Reg. Sess.) bears 

the highest chapter number and is presumed to be the last of the three approved by the 

Governor. (Gov. Code, § 9510.) As such, Senate Bill No. 567 (2021–2022 Reg. Sess.) 

prevails over Assembly Bill 124. (Gov. Code, § 9605, subd. (b).) To the extent there are 

conflicts between the three bills, Senate Bill No. 567 (2021–2022 Reg. Sess.) takes 

precedence. (In re Thierry S. (1977) 19 Cal.3d 727, 738–739.) As to subdivision 

(b)(6)(A) of section 1170, however, the substantive language in Assembly Bill No. 124, 

Senate Bill No. 1540 (2021–2022 Reg. Sess.), and Senate Bill No. 567 (2021–2022 Reg. 

Sess.) are not in conflict.” (People v. Banner (2022) 77 Cal.App.5th 226, 243, fn. 2 

(conc. & dis. opn. of Detjen, J.); People v. Flores, supra, 73 Cal.App.5th at p. 1038; 

People v. Jones, supra, 79 Cal.App.5th at p. 45, fn. 11.
40.

had six months to raise them in supplemental briefing while this appeal was pending and 

failed to do so.

While appellant failed to raise these issues while the instant third appeal was 

pending, and failed to give any reason for this failure, he may address these sentencing 

matters on remand in the interests of judicial economy and avoid an inevitable claim of 

ineffective assistance.

In remanding the matter for yet another resentencing hearing, we are hopeful the 

court and the parties ensure the issues are fully addressed to avoid further complications 

in a case that should have been final in 2018.

DISPOSITION

Appellant’s convictions are affirmed. The matter is remanded for the superior 

court to address appellant’s contentions based on Senate Bill 567 and Assembly Bill 124;

and thereafter file an amended and corrected abstract of judgment that also shows the 

five-year prior serious felony conviction enhancement was imposed pursuant to Penal 

Code section 667, subdivision “(a)(1).”