Filed 6/18/26 P. v. Amaya CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084767
v. (Super.Ct.No. RIF1201528)
ARMANDO RUBEN AMAYA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam
and John D. Molloy, Judges. (Judge Molloy presided over the hearing held on
January 22, 2024 only). Reversed with directions.
William D. Farber, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Supervising Assistant Attorney General,
Eric A. Swenson and Tyler L. Krentz, Deputy Attorneys General, for Plaintiff and
Respondent.
1
INTRODUCTION
A jury convicted defendant and appellant Armando Ruben Amaya of
robbery (Pen. Code1, § 211, count 1), burglary (§ 459, count 2) and dissuading a
witness (§ 136.1, subd. (b)(1), count 4). The jury also found true the allegation as
to the robbery that defendant participated as a principal knowing that another
principal was armed with a firearm. (§ 12022, subd. (d).) A trial court found true
the allegations that defendant had one prior prison term (§ 667.5, subd. (b)) and
two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12,
subd. (c)(2)(A).) It sentenced him to a total of 26 years to life in prison as follows:
25 years to life for the robbery, 25 years to life for the burglary, stayed pursuant to
section 654, 25 years to life for dissuading a witness, to be served concurrently,
plus one year consecutive on the prison prior. The court subsequently recalled
defendant’s sentence and resentenced him.
On appeal, defendant contends the trial court erred at the most recent
resentencing hearing by: (1) failing to resentence him on counts 2 and 42; and
(2) failing to recalculate his custody credits. We reverse and remand the matter
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
2 Defendant’s opening brief refers to the section 136.1, subdivision (b)(1)
conviction as count 3. The record shows that defendant was charged with a
violation of section 136.1, subdivision (b)(1) as count 4 and that count 3 was
dismissed. Thus, this opinion will refer to the conviction as count 4.
2
with directions for the trial court to resentence defendant and recalculate his
custody credits.
PROCEDURAL BACKGROUND
Defendant was charged by second amended information with robbery
(§ 211, count 1), burglary (§ 459, count 2), assault by means likely to produce
great bodily injury (§ 245, subd. (b)(4), count 3), and dissuading a witness
(§ 136.1, subd. (b)(1), count 4). The amended information also alleged that
defendant participated as a principal knowing that another principal was armed
with a firearm (§ 12022, subd. (d)), and that he had served one prior prison term
(§ 667.5, subd. (b)) and had two prior strike convictions (§§ 667, subds. (c) &
(e)(2)(A), 1170.12, subd. (c)(2)(A)).
On April 26, 2013, the jury convicted defendant of count 1 (§ 211), count 2
(§ 459), and count 4 (§ 136.1, subd. (b)(1)).3 The jury also found true the section
12022, subdivision (d) firearm allegation.
On July 22, 2013, after a court trial on the prior convictions, the court
found true that defendant had one prison prior and two prior strikes. (People v.
Amaya (Jan. 9, 2015, E059609 [nonpub. opn.]).4 The court denied defendant’s
motion to dismiss his prior strikes under People v. Superior Court (Romero)
3 Count 3 was apparently dismissed at some point.
4 By order dated August 1, 2025, we granted defendant’s request for
judicial notice with regard to the opinions in his prior appeals—People v. Amaya
(Jan. 9, 2015, E059609 [nonpub. opn.]) (Amaya I) and People v. Amaya (Nov. 19,
2020, E074093 [nonpub. opn.] (Amaya II).)
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(1996) 13 Cal.4th 497. It then sentenced him to a total of 26 years to life in
prison, as follows: 25 years to life on count 1 (robbery), 25 years to life on count
2 (burglary) stayed pursuant to section 654, 25 years to life on count 4 (dissuading
a witness), concurrent, plus one consecutive year for the prison prior. The court
did not mention the firearm allegation. (Amaya I, supra, E059609.) Nonetheless,
the minute order and abstract of judgment reflected that the court sentenced
defendant to a consecutive one year pursuant to section 12022, subdivision (a)(1).
The court also awarded defendant with 532 custody credits (463 actual days plus
69 days of conduct credits).
Defendant appealed, and this court affirmed the judgment in all respects,
except we remanded the case for the trial court to either strike or pronounce
judgment on the section 12022, subdivision (d) firearm enhancement. (Amaya I,
supra, E059609.) We noted the trial court erred when it did not orally pronounce
judgment on the firearm enhancement, even though the abstract of judgment and
minute order reflected a one-year consecutive term. (Ibid.)
On remand, the trial court struck the firearm enhancement. (Amaya II,
supra, E074093.)
In 2019, defendant filed a petition under section 1170.18 to reclassify his
burglary conviction in count 2 as misdemeanor shoplifting. The trial court
summarily denied his petition, and he appealed. This court affirmed the denial.
(Amaya II, supra, E074093.) We also found that the trial court should have
updated defendant’s presentence custody credits when it struck the firearm
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enhancement and resentenced him on remand. (Ibid.) We therefore directed the
trial court to prepare an amended abstract of judgment to reflect presentence
custody credits of 1,166 days (1,097 actual days plus 69 days of conduct credits).
(Ibid.)
The trial court prepared an amended abstract of judgment that corrected the
custody credits. However, it appears to have inadvertently omitted the prison prior
from the abstract.
In 2022, defendant filed a petition for resentencing under section 1172.75.
The petition was denied, apparently because section 1172.75 required the
Department of Corrections and Rehabilitation (CDCR) to initiate the resentencing.
At some point, the CDCR forwarded to the court a list of inmates eligible
for relief under section 1172.75, and Appellate Defenders wrote a letter to the
court explaining that defendant’s previous abstract of judgment omitted his prison
prior. On July 13, 2023, the court amended the abstract of judgment again and
added the prison prior back.
On January 9, 2024, defendant filed a motion for reconsideration of his
petition for resentencing under section 1172.75.
At a hearing on January 22, 2024, the court granted defendant’s motion.
The court noted that defendant’s prison prior “just got left off” the abstract of
judgment, and therefore he would not have been identified for relief by the CDCR.
The court stated that “something has fallen through the cracks.” The People
agreed. The court ordered the prior abstract corrected nunc pro tunc to reflect the
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added year for the prior prison term5 and immediately struck the prison prior since
it was no longer authorized by law. The court then stated: “His total aggregate
term would be 25 years to life. And we can set it for a resentencing hearing, but
the sentence was otherwise, illegal. So, counts 1 and 2, there can be a 654 stay.
But count 4 is a 136.1 (B)(1). [¶] Now, 1170.15 says that if it is served
consecutively, it must be full middle term. That is not our problem here. The
problem here is this is a three-strikes disposition. And because it’s the three-
strikes disposition, 1170.12 (A)(7) says if there is more than one serious or violent
offense, in the current sentencing regime, they shall all run consecutively, which
means that Count 4 should have run consecutively of 25 years to life. [¶] I’m just
letting you all know that that is an issue. I’m assuming you wish to set it for a
further resentencing for a future date?” The parties then agreed to set a further
hearing for April 22, 2024.
The minute order from January 22, 2024, reflects that the court sentenced
defendant to a total indeterminate term of 25 years to life and “[a]ll other orders
[were] to remain in full force and effect.” The abstract of judgment indicates that
the court struck the prison prior, sentenced defendant to 25 years to life on count
1, stayed the sentence on count 2, and imposed a concurrent term on count 4. The
abstract did not update defendant’s presentence custody credits.
5 It is unclear why the court ordered the abstract of judgment amended
again, since it appears the abstract was already corrected.
6
Defendant filed a resentencing brief prior to the further hearing and
renewed his Romero motion, included supporting documentation, and asked the
court to dismiss one of his prior strike convictions. The People filed a brief
opposing defendant’s request.
The court held a further resentencing hearing on September 24, 2024. The
court stated that it reviewed the parties’ briefs and, after hearing arguments from
counsel, asked defense counsel if he was requesting the court to grant the Romero
motion and completely resentence defendant. Defense counsel asked for both.
The court asked defense counsel whether defendant was entitled to a full
resentencing, and defense counsel stated that he was. Counsel then stated,
“[Defendant] did have a valid prior that’s already been struck, but [the prior judge]
reserved for further resentencing.” The People asserted that “it would make the
most sense . . . to resentence to the same sentence, minus the one prior.” The court
responded, “The prior is already off the table. Now he’s only serving 25 years to
life.”
The court then stated it was going to resentence defendant pursuant to
section 1172.75 and noted that, under the statute, the sentence should not be longer
than the one originally imposed. It commended defendant on the improvements
he had made, but noted his record in prison and said, “I have to consider all the
things, the good and the bad. And right now, the bad is outweighing the good,
which is why I’m resentencing you to the 25 years to life.” The court denied his
Romero motion without prejudice and stated, “[Y]our sentence is going to remain
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as previously imposed.” The record does not contain a new or amended abstract
of judgment from the hearing.
DISCUSSION
I. The Court Erred in Failing to Make a Complete Oral Pronouncement of
Judgment
Defendant contends that, at the section 1172.75 resentencing hearing held
on September 24, 2024, the court denied his Romero motion and resentenced him
on count 1 to 25 years to life, but erred by failing to pronounce judgment on
counts 2 and 4. The People argue that the court denied the Romero motion, struck
the invalid prison prior, “left undisturbed” counts 2 and 4, and in accordance with
the parties’ understanding, “reimposed the other components of the original
sentence.” The People add that, even though the court did not orally pronounce
judgment on counts 2 and 4, the punishment on those counts “was effectively
determined by the punishment for count 1” because count 2 could not be
separately punished under section 654, and count 4 was a Three Strikes sentence
that could not be punished consecutively without increasing the original sentence
in violation of section 1172.75. Thus, the People contend any error in the court
failing to orally pronounce judgment on counts 2 and 4 was harmless. We agree
with defendant that the court should have clearly pronounced judgment on counts
2 and 4, especially since it appears the court did not actually pronounce judgment
at the previous hearing on January 22, 2024. As discussed post, we will direct the
court to resentence defendant and pronounce judgment on counts 1, 2, and 4.
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A. Relevant Law
Section 1172.75, subdivision (a) provides that “[a]ny 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 . . . is legally invalid.” “Once the Department of Corrections and
Rehabilitation identifies those persons ‘currently serving a term for a judgment
that includes an enhancement described in subdivision (a)’ to the sentencing court,
‘the court shall recall the sentence and resentence the defendant.’” (People v.
Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe); § 1172.75, subds. (b) & (c).)
“By its plain terms, section 1172.75 requires a full resentencing, not merely
that the trial court strike the newly ‘invalid’ enhancements.” (Monroe, supra, 85
Cal.App.5th at p. 402; see also People v. Buycks (2018) 5 Cal.5th 857, 893
[“when part of a sentence is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances’”].) “A recall
‘effectively vacate[s] [the defendant]’s original sentence and commitment.’”
(People v. Rogers (2025) 108 Cal.App.5th 340, 360 (Rogers).)
The resentencing under section 1172.75 “shall result in a lesser sentence
than the one originally imposed . . . unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public safety.”
(§ 1172.75, subd. (d)(1).) In resentencing, “[t]he court shall apply the sentencing
rules of the Judicial Council and apply any other changes in law that reduce
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sentences or provide for judicial discretion so as to eliminate disparity of sentences
and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)
“In a criminal case, judgment is rendered when the trial court orally
pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9
(Karaman); People v. Mesa (1975) 14 Cal.3d 466, 471 [“‘Rendition of judgment
is an oral pronouncement’”].) “If a sentence of imprisonment is to be
imposed . . . the sentencing judge must . . . [p]ronounce the court’s judgment and
sentence, stating the terms thereof and giving reasons for those matters for which
reasons are required by law.” (Cal. Rules of Court, rule 4.433, subd. (c)(5).)
B. The Matter Should Be Remanded for Resentencing with an Oral
Pronouncement of Judgment as to All Convicted Counts
At a sentencing hearing, the court must orally pronounce the sentence on
the record. (Karaman, supra, 4 Cal.4th 335, 344, fn. 9; Cal. Rules of Court, rule
4.433(c)(5).) The best practice for resentencing hearings under section 1172.75
should be for the trial court to orally pronounce judgment upon the conclusion of
the hearing.
In this case, the court did not clearly pronounce judgment at the initial
resentencing hearing on January 22, 2024. At the conclusion of that hearing, the
court struck the invalid prior prison term but apparently did not resentence
defendant and state on the record the full sentence to be imposed. Rather, the
court stated: “His total aggregate term would be 25 years to life. And we can set
it for a resentencing hearing, but the sentence was otherwise, illegal.” It
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proceeded to say there “can” be a section 654 stay as to counts 1 and 2, but noted a
problem with the sentence on count 4: “…because it’s the three-strikes
disposition, 1170.12 (A)(7) says if there is one more than one serious or violent
offense, in the current sentencing regime, they shall all run consecutively, which
means that Count 4 should have run consecutively of 25 years to life. [¶] I’m just
letting you all know that that is an issue. I’m assuming you wish to set it for a
further resentencing for a future date?” (Italics added.)
At the further resentencing hearing on September 24, 2024, the court said it
was going to resentence defendant pursuant to section 1172.75 and stated, “…the
bad is outweighing the good, which is why I’m sentencing you to the 25 years to
life.” The court denied defendant’s Romero motion without prejudice and stated,
“[Y]our sentence is going to remain as previously imposed.”
In other words, at the January 22, 2024 hearing, the court said that section
654 could be applied to counts 1 and 2, identified a problem with the sentence on
count 4, and asked the parties if they wanted to set the matter for a resentencing
hearing in the future. At the further hearing on September 24, 2024, the court
simply said it was resentencing defendant to “the 25 years to life” and “[Y]our
sentence is going to remain as previously imposed.” However, since the court
recalled defendant’s sentence under section 1172.75, it effectively vacated his
original sentence and thus should have orally pronounced all components of the
sentence on the record at the resentencing hearing. (Rogers, supra, 108
11
Cal.App.5th at p. 360; Karaman, supra, 4 Cal.4th 335, 344, fn. 9; Cal. Rules of
Court, rule 4.433(c)(5).) The record indicates it did not do so.
We further note the People have now identified an additional issue—that
the sentence on count 2 (burglary) was unauthorized, in that the trial court
originally imposed a concurrent life term on it, but should have imposed a
determinate term instead, since second degree burglary is not classified as a
serious or violent felony. “It is well established that when the trial court
pronounces a sentence which is unauthorized by the Penal Code that sentence
must be vacated and a proper sentence imposed whenever the mistake is
appropriately brought to the attention of the trial court or the reviewing court.
When the mistake is discovered while the defendant’s appeal is pending, the
appellate court should remand the case for a proper sentence.” (People v. Benton
(1979) 100 Cal.App.3d 92, 102.) Assuming the People’s assertion is correct, the
matter should be remanded for a proper sentence on count 2. (Ibid.)
Therefore, in order to effectuate a legally authorized sentence, we will
remand the matter and direct the trial court to resentence defendant pursuant to
section 1172.75 and orally pronounce judgment on counts 1, 2, and 4. We note
that on remand, the court need not reconsider defendant’s Romero motion, since
defendant has not challenged the court’s denial of that motion.
II. The Trial Court Should Recalculate Defendant’s Custody Credits
Defendant contends the trial court failed to recalculate his custody credits at
the September 24, 2024, resentencing hearing or issue a new abstract of judgment.
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The People concede that defendant’s custody credits should be recalculated, but
contend that this court should modify the January 22, 2024, judgment, since it
modified defendant’s sentence at that hearing by striking his prison prior and
resentencing him, without updating his custody credits. We conclude the trial
court should recalculate defendant’s custody credits on remand.
As defendant asserts, at the resentencing hearing held on September 24,
2024, the court failed to recalculate his custody credits or issue an amended
abstract of judgment. The last time the court updated his custody credits was
when it issued an amended abstract of judgment, awarding custody credits of
1,166 days (1,097 actual days plus 69 days of conduct credits), as of April 2, 2021.
At the most recent resentencing hearing on September 24, 2024, the court failed to
recalculate the actual time defendant had served pursuant to the sentence for which
he was being resentenced or issue an amended abstract of judgment reflecting
those credits. Our Supreme Court determined that when a trial court resentences a
defendant on remand, it must credit him with all actual days he spent in custody up
to that time, including his time in custody after the original sentencing. (People v.
Buckhalter (2001) 26 Cal.4th 20, 37 [“the trial court, having modified defendant’s
sentence on remand, was obliged, in its new abstract of judgment, to credit him
with all actual days he had spent in custody.”]; see also § 2900.5, subd. (d) [it is
the duty of the sentencing court to calculate and award custody credits].)
Therefore, we will direct the trial court to recalculate defendant’s custody
credits and issue an amended abstract of judgment.
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DISPOSITION
The trial court’s resentencing order is reversed, and the matter is remanded
with directions for the court to resentence defendant pursuant to section 1172.75
without reconsidering defendant’s Romero motion, to orally pronounce judgment
on counts 1, 2, and 4, and to recalculate defendant’s custody credits as of the date
of the resentencing hearing. The trial court is directed to prepare an amended
abstract of judgment to reflect the sentence, the modified credits, and the date of
the resentencing hearing, and to forward a copy to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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