California Court of Appeal Oct 27, 2025 No. E083917Unpublished
Filed 10/27/25 P. v. Spain CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083917
v. (Super.Ct.No. RIF134994)
WILLIAM G. SPAIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Reversed and remanded.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, A.
Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and
Respondent.
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INTRODUCTION
Pursuant to a plea agreement, defendant and appellant William G. Spain pled
guilty to attempted murder (Pen. Code1, §§ 667/187, subd. (a)) and robbery (§ 211). He
also admitted that he personally used a deadly weapon (§ 12022, subd. (b)(1)), personally
inflicted great bodily injury (GBI) (§ 12022.7, subd. (a)) and committed the offense for
count 3), and assault with a deadly weapon (§ 245, subd. (a), count 4).2 The information
alleged gang enhancements (§ 186.22, subd. (b)) as to all counts, and personal use of a
weapon (§ 12022, subd. (b)(1)) and personal infliction of GBI (§ 12022.7, subd. (a)) as to
count 1. The information also alleged one prior prison enhancement. (§ 667.5.)3
Defendant entered a plea agreement and pled guilty to counts 1 (attempted
murder) and 3 (robbery) and, as to count 1, admitted the gang enhancement (§ 186.22,
subd. (b)) and enhancements for personal use of a weapon (§ 12022, subd. (b)(1)) and
personal infliction of GBI (§ 12022.7, subd. (a)). He also admitted one prison prior. On
October 9, 2009, the court sentenced defendant, pursuant to the plea agreement, to a total
term of 25 years in state prison, comprised of nine years on count 1, with consecutive
2 Three of defendant’s codefendants were also charged in the information, but they are not parties to this appeal; thus, this opinion will focus only on defendant.
3 We note the information alleged that defendant served a prior prison term for a July 7, 1999, conviction of assault by force likely to produce GBI, pursuant to section 667.5, subdivision (a). Section 667.5, subdivision (a) states that the court shall impose an additional three-year term for each prison prior. However, it appears the information may have been amended, since the record indicates that defendant admitted a prior prison enhancement for a conviction from October 14, 2009, under section 667.5, subdivision (b), and the court accordingly imposed one year on the prison prior.
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terms of 10 years on the gang enhancement, one year on the personal use of a weapon
enhancement, three years on the GBI enhancement, one year on count 3, plus one year on
the prison prior. The court dismissed the remaining charges and enhancements. It also
awarded defendant a total of 1018 days of credit for time served (885 actual and 133
conduct).
On October 9, 2023, the court recalled defendant’s sentence pursuant to section
1172.75, struck the prison prior as invalid, and ordered a new abstract of judgment to
reflect a 24-year sentence. The court set the matter for further resentencing.
Defendant filed a resentencing brief pursuant to sections 1172.7/1172.75,
1170, and 1385, as well as Senate Bill No. 483 (Senate Bill 483), arguing that he was
entitled to a full resentencing. He contended that he was entitled to have the court
consider any changes in sentencing laws since his conviction, as well as post-conviction
factors which showed he was no longer a danger to the public. Defendant specifically
asked the court to strike the gang enhancement pursuant Senate Bill No. 81 (Senate Bill
81) and sentence him to a term of 15 years.
The People filed a brief opposing defendant’s request. The People first explained
there is a split in authority on the issue of whether the court can alter a plea agreement
without the consent of the prosecutor. (See People v. Coddington (2023) 96 Cal.App.5th
prison prior, prosecution may withdraw its assent to plea agreement] and People v.
Carter (2023) 97 Cal.App.5th 960, 977 (Carter) [prosecution may not withdraw from a
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plea agreement if court further reduces a sentence].) The People then argued that the
court should not dismiss the gang enhancement, which would lead to defendant’s
immediate release, since he was a danger to the public.
On May 10, 2024, the day of the resentencing hearing, defendant filed a reply
brief arguing that his sentence was enhanced in ways that were now considered excessive
under section 1385. He further contended that he was qualified for relief due to changes
made to section 186.22 under Assembly Bill No. 333 (Assembly Bill 333).4
The court held the resentencing hearing, and defense counsel argued that he set
forth a number of reasons in his motion that the court should strike the gang enhancement
based on recent changes in the law, and that he added another reason in his reply brief
based on changes made to section 186.22 itself. The court stated it was concerned about
the endangerment of the public, noting defendant’s violent behavior of participating in an
attack on inmates while in prison, which the People cited in its brief. The court stated
that some mitigating factors in section 1385 applied here, but section 1385 created an
exception if there was a danger to public safety. Defense counsel responded that, while
there may have been an incident in prison, defendant had shown improvement overall and
was no longer a danger to society.
The prosecutor argued that defendant had shown he was unwilling to comply with
laws both out of custody and in custody, that his violence was escalating, and the court
4 Assembly Bill 333 essentially adds new elements to the substantive offense and gang enhancements in section 186.22. (People v. E.H. (2022) 75 Cal.App.5th 467, 479 (E.H.).)
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should deny his motion. The court asked if the prosecutor wanted to address defendant’s
additional argument in his reply brief regarding Assembly Bill 333, and the prosecutor
said he did not see the reply brief until that morning, but he thought the same exceptions
to section 1385 applied.
The court commented that defendant’s original crime was “atrocious” and he was
about to receive a life sentence until the parties struck a plea bargain. The court then
asked about the state of the law regarding whether, if it granted defendant’s motion, the
People “would be able to wipe out the plea and start all over again.” The parties simply
noted there was still a split in authority and they were “waiting for a decision.” The court
continued to comment on the facts of the case and viewing them in combination with
defendant’s violent behavior in prison, it concluded that granting defendant’s motion
would endanger public safety. The court thus denied the resentencing motion.
DISCUSSION
The Matter Should Be Remanded For a Full Resentencing
Defendant contends the court erred in failing to conduct a full resentencing since it
did not apply the ameliorative changes under Assembly Bill 333 to his gang
enhancement. He also argues the court erred in basing its conclusion that he was a
danger to society under section 1385 on whether he was currently dangerous, rather than
on whether he would pose a danger upon release in the future, if it dismissed his gang
enhancement. The People concede the matter must be remanded for a full resentencing.
They also contend that we need not address the issue of whether the court erred in its
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application of section 1385, since remand is necessary due to Assembly Bill 333. The
People assert that the proper procedure is for us to vacate the gang enhancement and
remand for resentencing, with instructions that the prosecution be given the opportunity
to retry the gang enhancement, if it wishes.
In his reply brief, defendant contends that because the current record does not
establish the elements for a section 186.22 gang enhancement, as amended by Assembly
Bill 333, this court should remand the matter for resentencing with directions to simply
strike the gang enhancement and recalculate his custody credits.
We agree with the parties that the matter should be remanded for a full
resentencing and the trial court should apply Assembly Bill 333 to defendant’s sentence.
A. Relevant Law
In October of 2021, the Governor signed Senate Bill 483, effective on January 1, 2022,
which added section 1171.1 to the Penal Code (subsequently renumbered as section
1172.75). This section declares: “Any sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”
(§ 1172.75, subd. (a).)
Section 1172.75 establishes a mechanism to provide affected defendants an
avenue for relief from now invalid prison prior enhancements. Once the sentencing court
receives information that a person in custody is serving a term for a judgment that
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includes a now invalid prior prison term enhancement, the court must verify the
judgment, recall the sentence, and resentence the defendant. (§ 1172.75, subds. (b) &
(c).)
Section 1172.75, subdivision (d) states that resentencing “shall result in a lesser
sentence than the one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that imposing a
lesser sentence would endanger public safety,” and that resentencing “shall not result in a
longer sentence than the one originally imposed.” Subdivision (d)(2) directs the court to
“apply the sentencing rules of the Judicial Council and apply any other changes in law
that reduce sentences or provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” The court may also consider
postconviction factors, such as the defendant’s disciplinary record and record of
rehabilitation while incarcerated. (§ 1172.75, subd. (d)(3).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely that
the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85
Cal.App.5th 393, 402; see People v. Buycks (2018) 5 Cal.5th 857, 893 [“the resentencing
court has jurisdiction to modify every aspect of the sentence, and not just the portion
subjected to the recall”].)
Section 1172.75 applies to defendants convicted after trial and to defendants
convicted by plea. Subdivision (a) invalidates “[a]ny sentence enhancement” imposed
under section 667.5, subdivision (b), without qualification. Subdivision (c) mandates that
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upon determining “the current judgment includes an enhancement described in
subdivision (a), the court shall recall the sentence and resentence the defendant.” This
unqualified language demonstrates the Legislature’s intent that resentencing apply to all
judgments containing an invalid enhancement, regardless of how the conviction was
obtained.
Moreover, the Legislature expressly declared in Senate Bill 483 that “any changes
to a sentence as a result of the act that added this section shall not be a basis for a
prosecutor or court to rescind a plea agreement” (Stats. 2021, ch. 728, § 1). This
confirms that the Legislature intended section 1172.75 to apply to plea-bargained
sentences.
Appellate courts disagreed regarding whether the prosecution may be permitted to
rescind a plea agreement if a trial court grants sentencing relief beyond merely striking
one-year priors. (Coddington, supra, 96 Cal.App.5th at p. 565 [prosecution may
withdraw its assent to plea agreement]; but see Carter, supra, 97 Cal.App.5th at p. 964
[prosecution not entitled to withdraw assent to plea bargain if court further reduces a
sentence].) The California Supreme Court granted review to address this dispute in
People v. Montgomery (2024) 100 Cal.App.5th 768. However, the Supreme Court in
Montgomery subsequently transferred the matter back to the court of appeal to vacate its
decision and reconsider the case in light of Assembly Bill No. 2483, which added section
1171. (Stats. 2024, ch. 964, § 2.)
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Thus, after this appeal was filed, the Legislature enacted section 1171, which
became effective January 1, 2025. This statute provides that in postconviction
resentencing hearings, trial courts have “jurisdiction to modify every aspect of the
defendant's sentence, including if it was imposed after a guilty plea” (§ 1171, subd.
(c)(2)), and that “[a]ny changes to a sentence shall not be a basis for a prosecutor or court
to rescind a plea agreement” (§ 1171, subd. (c)(3)). While this statute was not in effect
at the time of defendant’s resentencing hearing, it reflects the Legislature’s intent to
ensure that defendants receive the benefit of ameliorative sentencing changes, regardless
of whether their original sentence resulted from a plea bargain. This statute appears to
codify the holding in Carter and reject the approach taken in Coddington regarding the
prosecution’s right to withdraw from plea agreements at resentencing.
B. The Court is Required to Conduct a Full Resentencing
Section 186.22 enhances the punishment of a person convicted of an enumerated
felony committed “for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in criminal
conduct by gang members.” (§ 186.22, subd. (b)(1).) Assembly Bill 333, which became
effective on January 1, 2022 (see Stats. 2021, ch. 699), made significant changes to
section 186.22, as it “amended the definitions of ‘criminal street gang’ and ‘pattern of
criminal gang activity’ and clarified the evidence needed to establish an offense benefits,
promotes, furthers or assists a criminal street gang.” (E.H., supra, 75 Cal.App.5th at p.
477.) Assembly Bill 333 essentially “amends section 186.22 to require proof of
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additional elements to establish a gang enhancement.” (People v. Lopez (2021) 73
Cal.App.5th 327, 343 (Lopez).)
Defendant specifically contends the matter should be remanded for the court to
apply the Assembly Bill 333 amendments to section 186.22 to his case. The People
concede that, in light of newly-enacted section 1171, defendant has the right to a full
resentencing, and we agree. In People v. Tran (2022) 13 Cal.5th 1169, 1206-1207, the
Supreme Court held that amendments made by Assembly Bill 333 applied retroactively
under the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). (See, People v. Burgos
(2024) 16 Cal.5th 1, 28 [“Estrada’s inference of retroactivity applies to the punishment-
mitigating changes to section 186.22”] and Lopez, supra, 73 Cal.App.5th at p. 344 [“As
Assembly Bill 333 increases the threshold for conviction of the section 186.22 offense
and the imposition of the enhancement, . . . [defendant] is entitled to the benefit of this
change in the law”].)
At the resentencing hearing here, the court made no reference to any of the
statutory factors it was required to consider under amended section 186.22. Instead, the
court noted defendant’s “atrocious” crimes and commented that defendant had avoided a
life sentence through his plea bargain. The prosecutor argued that the court should not
dismiss the gang enhancement, since it would lead to defendant’s immediate release, and
he was a danger to the public. The court then asked what the state of the law was on
whether or not the People would be able to “wipe out the plea and start all over again,” if
the court granted defendant’s motion. The parties stated there was still a split of
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authority. The court then stated, “[W]hen I look at the original facts of the crime, and I
combine that now with what appears to be continued behavior in prison that is contrary to
the law, including the violent acts most recently, I do think that granting the motion
would endanger public safety.” These comments indicate the court just accepted the
prosecutor’s argument and enforced the plea agreement, rather than conducting a full
resentencing as required.
We conclude that section 1172.75 requires the trial court to conduct a full
resentencing, particularly in light of section 1171. Because the record does not show the
court applied Assembly Bill 333 to defendant’s case, we reverse the court’s denial order
and remand the matter for a further resentencing hearing.
We note the People’s contention that this court should vacate the gang
enhancement and remand with the instructions that the prosecution be given the
opportunity to “reprove that enhancement if it so wishes.” In his reply brief, defendant
argues that the People should not be given the opportunity to retry the gang enhancement
under the amended law, since his conviction was by plea and the factual basis for the plea
was the written plea agreement, which does not provide sufficient evidence to prove the
elements of section 186.22. He specifically contends the People cannot now rescind the
plea agreement to conduct a trial of the gang enhancement, and we should just remand
the matter with directions for the court to strike the enhancement, essentially keeping the
rest of the plea agreement intact.
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We will reverse the court’s denial of defendant’s motion and remand the matter
for a full resentencing, with directions for the trial court to determine if the gang
enhancement should be vacated in light of Assembly Bill 333. If the court determines the
gang enhancement must be vacated, the People must be given the opportunity to retry the
gang enhancement in compliance with the amendments brought about by Assembly Bill
333. If the People choose to retry it, the trial court is directed to conduct a full
resentencing after that issue has been decided. (See People v. Tran (2022) 13 Cal.5th
1169, 1207; see also, People v. Sek (2022) 74 Cal.App.5th 657, 669 and United States v.
Tateo (1964) 377 U.S. 463, 465] [Double Jeopardy Clause does not bar retrial of a
“defendant whose conviction is set aside because of an error in the proceedings leading to
conviction”].) If the People elect not to retry it, the court must strike the gang
enhancement and resentence defendant.
The People additionally contend that, given remand is necessary to apply
Assembly Bill 333, we need not address defendant’s claim that the court erred in its
analysis under section 1385 by considering whether defendant posed a danger currently,
rather than upon release in the future. In his reply brief, defendant agrees that we need
not resolve the parties’ disagreement on this issue, given the remand.5
5 We also need not address defendant’s alternative argument that his counsel provided him with ineffective assistance by failing to argue for the court to resentence him and apply Assembly Bill 333.
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C. The Court Erred By Not Recalculating Defendant’s Custody Credits
Defendant argues that the court erred by failing to update his actual custody
credits when it amended the abstract of judgment. The People concede that the court
must update his custody credits, and we agree.
If the court modifies a defendant’s sentence, then the court must recalculate the
number of days that the defendant has already spent in custody and award those
recalculated credits in the new abstract of judgment. (People v. Buckhalter (2001) 26
Cal.4th 20, 29, 37, 41; § 2900.1.) The court here did not update defendant’s custody
credits. The 2023 amended abstract of judgment reflected that defendant had 885 days of
actual custody credits — the same number reflected in the 2009 abstract of judgment.
Accordingly, we also remand for the court to recalculate defendant’s custody credits.
DISPOSITION
The court’s denial order is reversed, and the matter is remanded for a full
resentencing, with directions for the trial court to determine if the gang enhancement
should be vacated in light of Assembly Bill 333. If the court determines that it must be
vacated, the People must be provided the opportunity to retry the gang enhancement in
compliance with the amendments brought about by Assembly Bill 333. If the People
choose to retry it, the trial court is directed to conduct a full resentencing after that issue
has been decided. If the People elect not to retry it, the court must strike the gang
enhancement and resentence defendant. Upon completion of the resentencing, the trial
court is directed recalculate defendant’s custody credits and forward an amended abstract
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of judgment, reflecting the corrected credits, to the California Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J. RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court failed to conduct a full resentencing as required by law, necessitating a remand to apply the amendments of Assembly Bill No. 333 to the defendant's gang enhancement and to recalculate his custody credits.
Issues
Whether the trial court erred by failing to conduct a full resentencing and apply the ameliorative changes of Assembly Bill No. 333 to the defendant's gang enhancement.
Whether the trial court erred by failing to recalculate the defendant's custody credits upon resentencing.
Disposition. Reversed and remanded.
Quotations verified verbatim against the opinion
“By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.”
“We conclude that section 1172.75 requires the trial court to conduct a full resentencing, particularly in light of section 1171.”
“If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333.”