Filed 7/31/26 P. v. Jackson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B338058
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA126434)
v.
KEVIN JACKSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, John J. Lonergan, Jr., Judge. Reversed with directions.
Gordon B. Scott, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys
General, for Plaintiff and Respondent.
_______________________
This appeal follows defendant Kevin Jackson’s resentencing
pursuant to Penal Code section 1172.75. 1 Jackson argues and
we agree the trial court lacked potential information relevant to
exercising its discretion. We reverse the judgment and remand for
a new resentencing hearing.
BACKGROUND
In 2013, a jury convicted Jackson of attempted murder,
shooting at an inhabited dwelling, and possession of a firearm by
a felon, and found that in commission of the attempted murder he
discharged a firearm, causing great bodily injury.
The trial court sentenced Jackson to consecutive terms of
41 years to life in prison for the attempted murder and 13 years
for possession of a firearm, plus a stayed term of 7 years to life
for shooting at a dwelling. The sentences included: (1) the 3-year
high term for firearm possession; (2) doubled base terms for a prior
strike on the attempted murder and firearm possession counts;
(3) a 20-year gun use enhancement; (4) 5-year enhancements for
a serious felony prior on both the attempted murder and firearm
possession counts; and (5) two now-invalid 1-year enhancements
for prior prison terms pursuant to section 667.5, subdivision (b)
on both the attempted murder and firearm possession counts.
After an appeal, the superior court modified the sentence by
striking the 5-year, prior serious felony enhancement on the
weapon possession count, reducing the sentence on that count from
13 to 8 years.
In April 2023, Jackson filed a petition in propria persona for
recall and resentencing under section 1172.75. The resentencing
court appointed counsel for him, scheduled a hearing, directed
1 Undesignated statutory references are to the Penal Code.
2
Jackson’s counsel “to file any other motions seeking relief on any
other statutes,” and in December 2023 set a hearing for April 2024.
In January 2024, counsel filed a motion to recall
Jackson’s sentence and conduct a full resentencing pursuant
to section 1172.75 to eliminate the now-invalid one-year
enhancements and consider other current sentencing laws. Counsel
asked the trial court to exercise its new discretionary authority to
do three things: (1) impose the low term for possession of a firearm
because statutory presumptions about sentences of three possible
terms had changed; (2) stay the imposed term for attempted murder
and impose the stayed term for shooting at a dwelling because
there was substantial doubt that Jackson’s gun inflicted injury;
and (3) dismiss the 20-year firearm enhancement pursuant to
section 1385 because multiple enhancements were alleged, the
application of an enhancement would result in a sentence of over
20 years, and the offenses were connected to mental illness and
prior victimization or childhood trauma. Counsel requested
that the court consider mitigation not previously heard by the
sentencing court.
A. April 12, 2024 Hearing
On April 12, 2024, the court held a resentencing hearing.
Jackson’s counsel, appearing telephonically, informed the court he
had not been advised that resentencing would occur at the hearing
and he was in trial in a different matter, did not have Jackson’s file,
had not had an opportunity to speak with him, and was “not at all
prepared” to proceed. Counsel stated he needed time to consult
with Jackson and develop additional material with respect to the
various sentencing factors articulated in his motion, including
an Evidence Code section 730 evaluation to determine whether
Jackson should be considered for mental health diversion rather
than incarceration.
3
Jackson himself stated that he wanted to give his counsel his
“chronos,” California Department of Correction and Rehabilitation
(CDCR) documents containing information about an inmate’s
behavior. (Cal. Code Regs., tit. 15, § 3000.)
The court observed that counsel had had the case for almost
a year, and knew since December 2023 that the hearing would be in
April 2024. The court therefore denied a continuance.
The court struck the two 1-year enhancements on the
attempted murder count, reducing Jackson’s sentence on that count
from 41 to 39 years to life.
It also (1) struck the two 1-year enhancements on the firearm
possession count, reducing the sentence from 8 to 6 years, and
(2) mitigated the 3-year high term to the 16-month low term on that
count (doubled due to Jackson’s strike), which further reduced the
sentence to 32 months (2 years, 8 months).
B. April 22, 2024 Motion In Propria Persona
On April 22, 2024, Jackson himself filed a motion for
resentencing pursuant to section 1172.1 (recall and resentencing
upon the recommendation of specified officials), supported by
chronos reflecting that he had completed a gang awareness course,
a three-week progressive programming course, a 16-week course
on relapse and recovery, and a summer reading program.
The court stated in a minute order that because an inmate is
not entitled to seek relief under section 1172.1, the court would take
no action on the petition.
C. May 10, 2024 Hearing
The court nevertheless sua sponte set a May 10, 2024
hearing on issues it had not addressed at the April 12 hearing,
i.e., Jackson’s requests that the court stay the imposed term
for attempted murder, impose the stayed term for shooting at
a dwelling, and dismiss the 20-year firearm enhancement.
4
On May 10, counsel, who was again in trial, appeared
remotely. The record is ambiguous as to whether Jackson was
present. Counsel asked for a continuance to provide evidence of
mitigating circumstances under section 1385, including mental
health and childhood trauma. He requested time to retain a
mitigation expert and develop a mitigation report.
The court denied the request, stating: “I think the record
speaks for itself. The age of this case and the court continuously
giving you deadlines to submit what you’re going to request and
the court has reviewed everything that you’ve submitted and . . .
based on the facts of this case and the fact that your client was
the shooter and the fact that he shot numerous times into a crowd
of individuals he knew, that the court is . . . is declining to use its
new discretion under the law and strike the 20-year enhancement.”
“Based on his actions in this case,” the court stated, “it would not be
in the interest of justice for this court to” further reduce Jackson’s
sentence.
Jackson appealed from the April 12 and May 10, 2024 orders.
DISCUSSION
Resentencing Under Sections 1172.75 and 1385
Jackson contends we must remand for a new resentencing
hearing because he was entitled to but denied a full resentencing,
including consideration of post-conviction factors in mitigation.
(§ 1172.75, subd. (d).) We agree. Because we reverse the judgment
and order a new resentencing hearing, we do not consider
defendant’s remaining arguments. 2
2 Jackson argues that by proceeding with the May 10, 2024
hearing in his absence, the court violated his due process rights.
(People v. Moreno (1991) 228 Cal.App.3d 564, 573, citing Chapman
5
Section 1172.75 provides that when a court resentences a
defendant under the statute, it “shall 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.”
(Id., subd. (d)(2).) “The court may consider postconviction factors,
including, but not limited to, the disciplinary record and record
of rehabilitation of the defendant while incarcerated, evidence
that reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future
violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.” (§ 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.) Thus, in a case such as this, “the resentencing court has
jurisdiction to modify every aspect of the sentence, and not just the
portion subjected to the recall.” (People v. Buycks (2018) 5 Cal.5th
857, 893, italics omitted.)
Section 1385, subdivision (a) grants the superior court
discretion, “in furtherance of justice, [to] order an action to
be dismissed.” (§ 1385, subd. (a).) This includes the authority
to strike a sentence enhancement. (People v. Barboza (2021)
68 Cal.App.5th 955, 965.) To apply this discretion, the court
“shall consider and afford great weight to evidence offered
by the defendant to prove that any of [several] mitigating
circumstances . . . are present. Proof of the presence of one or
v. California (1967) 386 U.S. 18.) He argues in the alternative that
he received ineffective assistance of counsel.
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more of these circumstances weighs greatly in favor of dismissing
the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385, subd. (c)(2).)
We review a trial court’s denial of a continuance for abuse of
discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) One
factor to consider is whether a continuance would be useful. (Ibid.)
Here, a continuance was merited because it would have
allowed defense counsel to obtain potential evidence relevant
to resentencing regarding childhood trauma and mental capacity.
This was apparently Jackson’s first request for a continuance,
and the burden on the court of a continuance was minimal because
there would have been no need to reschedule witnesses or consider
juror inconvenience. (See People v. Grajeda (2025) 111 Cal.App.5th
829, 839–840 (Grajeda).)
It appears the trial court lacked information about potential
childhood trauma and mental health influences identified in
section 1385. The court stated its reason for denying any further
relief was “[b]ased on [Jackson’s] actions in [the] case,” including
that he “was the shooter and . . . shot numerous times into a crowd.”
The court declined to consider Jackson’s accomplishments in prison
or to continue the matter to develop information about his possible
mental health issues and childhood trauma. Because the court
lacked evidence of all relevant mitigating factors identified in
section 1385, we must remand for resentencing unless the record
clearly indicates that the court would have reached the same
conclusion even had it considered the mitigating factors. (See
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; Grajeda, supra,
111 Cal.App.5th at p. 842.)
Here, Jackson’s counsel stated there would be relevant
mitigating evidence after he had Jackson evaluated by an expert
regarding mental health and childhood trauma and gathered
rehabilitation evidence from the CDCR. The record does not clearly
7
indicate either that such evidence could not be developed or that
it would lead to the same result.
Respondent argues that the court implicitly conveyed that
even giving great weight to applicable section 1385 mitigating
circumstances, it was not in the interest of justice to dismiss
the gun use enhancement or otherwise reduce Jackson’s sentence.
(People v. Walker (2024) 16 Cal.5th 1024, 1029, 1034–1036
[mitigating circumstance may be neutralized by countervailing
factors]. We disagree. Although a “court is presumed to
have considered all of the relevant factors in the absence of an
affirmative record to the contrary” (People v. Myers (1999) 69
Cal.App.4th 305, 310), when it expressly states the basis for its
decision and declines to consider other factors, we will not infer it
weighed the other factors. Because the court expressly considered
only the circumstances of Jackson’s crime, we cannot infer that it
also considered mitigating circumstances.
Respondent argues that Jackson was not denied an
opportunity to present mitigating postconviction evidence because
he was allowed to address the court personally at the April 12
hearing and subsequently filed his own motion with exhibits
demonstrating his rehabilitative efforts in prison. We disagree
because the evidence of rehabilitative efforts was not a substitute
for evidence of childhood trauma and mental capacity.
Respondent argues that Jackson cannot show prejudice
because the court granted him relief by reducing the sentence
on firearm possession to the low rather than high term, which
indicates there is no reasonable probability it would have further
reduced the sentence in light of new mitigation evidence. Just
because the court reduced Jackson’s sentence in some degree does
not necessarily mean it would not further reduce the sentence based
on new mitigating circumstances.
8
Jackson requests that we remand the case to a different
judge. According to him, the court “pre-judged the case,” “ignore[d]
the intendment of the law[,] and decline[d] to resentence appellant
merely because of the underlying felony.” Although we conclude
that the trial court erroneously denied Jackson a continuance, the
record does not support his view that the court was unwilling to
apply the law. We express no opinion on how the trial court should
exercise its discretion upon remand.
DISPOSITION
The judgment is reversed and the case remanded for a new
resentencing hearing.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
M. KIM, J.
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