Filed 8/27/26 P. v. Terry CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A172359
v.
JIMMY LEE TERRY, JR., (Sonoma County
Super. Ct. No. SCR6526491)
Defendant and Appellant.
In 2024, defendant Jimmy Lee Terry, Jr., received a full resentencing
due to the invalidity of one-year prior prison term enhancements that were
imposed before January 1, 2020. On appeal, Terry advances several
challenges to his resentencing. We agree the trial court erred in imposing
both base term sentences and sentences under the Three Strikes law and in
failing to update Terry’s custody credits in accordance with the actual days
he spent in prison up until his resentencing. We also agree the amended
abstract of judgment incorrectly reflects a conviction for first degree robbery
instead of a conviction for second degree robbery for one of the counts. We
shall remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offenses, which are not in dispute, are set
forth in People v. Terry (May 31, 2019; A152524) (Terry I). We provide the
following summary.
1
Twelve days after Terry was released from prison on parole in 2014, he
and Johnny Tasker Douglas, Jr. drove a stolen car to rob a jewelry store in
Santa Rosa. Terry was armed with a loaded revolver when he and Douglas
entered the store. As Douglas began smashing glass cases containing Rolex
watches, Terry approached a store employee and pointed his revolver at her.
The store co-owner emerged from his office with a semi-automatic pistol, and
an armed standoff ensued. Terry held onto the store employee and pointed
his gun at her head as he forced her to move with him towards the exit. The
store co-owner fired first at Douglas but then exchanged gunfire with Terry.
Terry discharged all five rounds in his revolver, using the store employee as a
human shield during the exchange. Douglas managed to flee in the stolen
car, while Terry sustained multiple gunshot wounds and was apprehended in
the parking lot. The store employee suffered gunshot wounds to her arms,
which caused extensive scarring and severe chronic pain.
In April 2017, a jury convicted Terry of one count of kidnapping with
intent to commit robbery (Pen. Code, § 209, subd. (b)(1); count 1)1; two counts
of second-degree robbery (§ 211; counts 3 and 4); two counts of assault with a
firearm (§ 245, subd. (a)(2); counts 5 and 6); and one count of possession of a
firearm by a felon (§ 29800, subd. (a)(1); count 7). As to counts 1, 3, and 4,
the jury also found true four allegations that Terry was armed with a firearm
(§§ 12022.53, subds. (b), (c), 12022.5, subd. (a), 12022, subd. (a)(1)); and as to
counts 5, 6, and 7, two firearm allegations (§§ 12022.5, subd. (a), 12022,
subd. (a)(1)).
A week later, the trial court found true allegations that Terry suffered
four prior strike convictions (§§ 667, subds. (b)–(i), 1170.12) and four prior
serious felony convictions (§ 667, subd. (a)(1)), and that he served two prior
1 Further unspecified statutory references are to the Penal Code.
2
prison terms (§ 667.5, subd. (b)). The court imposed consecutive sentences on
counts 1, 4, and 7 for a total prison term of 77 years to life plus 82 years,
which included the prior prison term and other enhancements. The
sentences on the remaining counts were stayed under section 654.
In May 2019, this court affirmed the judgment as modified to impose a
total sentence of 99 years to life plus 83 years, to correct the abstract of
judgment to reflect that the sentence on count 3 was stayed in its entirety,
and to delete the determinate terms for counts 4 and 7. Though the trial
court was directed to prepare an amended abstract of judgment, that
apparently was never done.
In 2024, Terry sought a full resentencing under section 1172.75, due to
the invalidity of the one-year prior prison term enhancements imposed for his
non-sexually violent offenses. (See Stats 2022, ch. 58, § 12, eff. June 30,
2022.) Terry not only wanted his prior prison term enhancements stricken,
but he also sought dismissal of his firearm and prior serious felony
enhancements, as well dismissal of his strike priors, pursuant to section 1385
and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The People agreed that the prior prison term enhancements should be
stricken from the sentence and that Terry was entitled to full resentencing.
But the People pointed out that Terry had already unsuccessfully sought
Romero relief when he was originally sentenced, that the law did not entitle
him to “a second bite at the Romero apple,” and that in any event, he was not
entitled to Romero relief based on his postconviction behavior.
The trial court ultimately struck all the prior prison term and prior
serious felony enhancements, as well as all but one of the firearm
enhancements. The “indeterminate” portion of the amended abstract of
judgment, filed December 10, 2024, reflects a sentence of 27 years to life for
3
count 1 (kidnapping with intent to commit robbery), a consecutive sentence of
25 years to life for count 4 (second degree robbery), a consecutive sentence of
25 years to life for count 7 (felon in possession of a firearm), and stayed
indeterminate terms for counts 3 (robbery), 5 (assault with a firearm), and 6
(assault with a firearm). The “determinate” portion of the amended abstract
reflects 20 years for the firearm enhancement attached to count 1, an upper
base term of 5 years for count 4, an upper base term of 3 years for count 7,
and stayed base terms for counts 3, 5, and 6.
Terry appeals.
DISCUSSION
Where, as here, a defendant’s current sentence includes prison prior
term enhancements rendered invalid under section 1172.75, subdivision (a),
“the court shall recall the sentence and resentence the defendant.”
(§ 1172.75, subd. (c).) “By its plain terms, section 1172.75 requires a full
resentencing,” not merely the striking of “newly ‘invalid’ enhancements.”
(People v. Monroe (2022) 85 Cal.App.5th 393, 402.)
Terry’s appeal contends: (1) the trial court imposed an unauthorized
sentence by imposing both base term sentences and sentences under the
Three Strikes law for his six convictions; (2) jury findings on aggravated
circumstances were required for reimposing the upper term sentences on
counts 3 through 7; (3) the court failed to update his custody credits in
accordance with the actual days he spent in prison up until his resentencing;
and (4) the amended abstract of judgment erroneously reflects the conviction
on count 3 as first degree robbery, when it should be second degree robbery.
We address these contentions in order.
4
A. Alleged Unauthorized Sentence
As a preliminary matter, we note Terry does not dispute the trial
court’s calculation of the indeterminate Three Strikes sentences reflected in
the amended abstract of judgment. Rather, he contends that his Three Strike
sentences were erroneously imposed as “enhancements” in addition to the
determinate sentences for his offenses, and that we should vacate his
sentence and remand for a full resentencing. The People counter that the
amended abstract of judgment merely details how the sentences were
calculated and does not, as Terry claims, reflect the court’s imposition of both
base term sentences and Three Strikes sentences.
After reviewing the reporter’s transcript of the resentencing hearing,
we think Terry has the better argument, at least in part. We first address
counts 4 and 7. As reflected in the transcript, the trial court purported to
impose the upper base term for robbery when it said, “So Count 4, five years
for the robbery will be imposed. Aggravated term, for the same reason.”
(Italics added.) Similarly, the court agreed with defense counsel who
indicated Terry would, as in the previous sentencing, receive the upper term
of three years on count 7. At the same time, the court made clear it was
imposing Three Strike sentences on counts 4 and 7 by expressly stating:
“Count 3, 4, 5, 6, and 7 are sentenced pursuant to 1168/1170.12(c)(2), big A,
small roman three — i-i-i — if that makes sense, of the penal code.” The
court also indicated agreement with defense counsel’s stated understanding
that for counts 4 and 7, everything that was imposed and/or stayed in the
original sentencing, including the Three Strikes sentences, would be
reordered, except for the stricken enhancements.
Notably, the amended abstract of judgment reflects the same
information regarding counts 4 and 7 on the same Judicial Council forms
5
(CR-290, CR-292) as the abstract of judgment for the original sentencing,
which Terry I described as “erroneously list[ing] Terry as receiving both the
determinate term and the indeterminate term” for counts 4 and 7. As Terry I
observed, “ ‘The Three Strikes law is a penalty provision, not an
enhancement. It is not an enhancement because it does not add an
additional term of imprisonment to the base term. Instead, it provides for an
alternate sentence (25 years to life) when it is proven that the defendant has
suffered at least two prior serious felony convictions.’ (People v. Williams
(2014) 227 Cal.App.4th 733, 744.)” Consequently, Terry I ordered deletion of
the determinate terms for counts 4 and 7.
For counts 3, 5, and 6, Terry contends the trial court improperly
imposed both the base terms and the Three Strikes sentences before staying
all of them pursuant to section 654. For these counts, the People’s
supplemental letter brief acknowledges “[t]he abstract of judgment
erroneously lists sentences on both the determinate and indeterminate
sheets.” Based on our review of the record, we agree the court erroneously
imposed both determinate and indeterminate sentences on counts 3, 5, and 6
before staying them.
Though we agree the sentencing on counts 3 through 7 was in error, we
do not find the sentencing problematic on count 1. Specifically, Terry
appears mistaken in claiming the trial court imposed a base term of life with
the possibility of parole in addition to an enhancement of 27 years to life
pursuant to the Three Strikes law. As the People observe, Terry’s original
sentence on count 1 was based on the court’s application of section 1170.12,
subdivision (c)(2)(A)(iii), using a base term of seven years plus 20 years for
the attached firearm enhancement, resulting in a Three Strikes sentence of
6
27 years to life,2 plus 30 years for various other enhancements. We read both
the reporter’s transcript and amended abstract of judgment as reasonably
and correctly reflecting that, after the court struck all but the one firearm
enhancement at the resentencing hearing, his new sentence for count 1
totaled 27 years to life. However, to the extent the amended abstract reflects
any ambiguity on the matter, the trial court may revise the abstract as
appropriate.
Having found the trial court erred in imposing an unauthorized
sentence pertaining to counts 3 through 7, we must resolve the parties’
disagreement as to the appropriate remedy. On this score, the People
contend that any such error may be corrected by directing the trial court to
delete the unlawful base terms from the determinate portion of the amended
abstract of judgment. This is the same remedy that Terry I previously
employed to rectify the same error on counts 4 and 7, relying on People v.
Williams (2014) 227 Cal.App.4th 733 (Williams).3
Conversely, Terry contends the matter should be remanded for a full
resentencing.4 Starting from the premise that the trial court exercised
2 Terry I explained the calculation for the 27-years-to-life sentence on
count 1 (kidnapping for robbery) as follows: “Kidnapping for robbery is
ordinarily punishable by life in prison with the possibility of parole. (§ 209,
subd. (b)(1).) Under section 1170.12, subdivision (c)(2)(A)(iii), the minimum
indeterminate term for the offense is determined using the period prescribed
by section 3046—here, seven years. (§ 3046, subd. (a).) Accordingly, the
minimum term for count one is seven years, plus 20 years for the section
1022.53 [sic] firearm enhancement,” for a total of 27 years to life under
section 1170.12, subdivision (c)(2)(A)(iii). Though Terry contends he is
entitled to a full resentencing on all counts including count 1, we again note
he does not dispute the calculation of this indeterminate sentence.
3 As indicated, however, the abstract of judgment was never corrected.
4 At oral argument, Terry’s appellate counsel expressed his
understanding that if this matter were remanded for a full resentencing, the
7
“substantial discretion over [his] strike priors, enhancements, and other
sentencing choices while treating unauthorized ordinary base terms as lawful
components of the aggregate sentence it was constructing,” Terry reasons
that “[d]irectly modifying all affected counts would remove the unauthorized
terms but would leave the remaining discretionary components fixed without
allowing the trial court to determine the aggregate sentence under the correct
sentencing framework.” In other words, directing the trial court to delete the
unlawful determinate terms and to retain the indeterminate terms for counts
3 through 7 would, in Terry’s view, impermissibly intrude on that court’s
ability to exercise its sentencing discretion with a correct understanding of its
authority to render a different aggregate sentence. Terry acknowledges
Williams, supra, 227 Cal.App.4th 733, establishes that appellate modification
of an unlawful sentence is an available remedy. Nonetheless, he argues
Williams did not consider whether direct modification should occur instead of
resentencing, and urges that an order directing the deletion of the unlawful
base terms would be “at the expense of informed trial court sentencing
discretion.”
We have no quarrel with the general proposition that “ ‘[d]efendants
are entitled to sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th
trial court would be barred from reconsidering its exercise of discretion in
dismissing the various enhancements and from imposing an aggregate
sentence greater than the sentence it imposed in 2024. That understanding
is wrong. (See People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–432
[“ ‘when a trial court pronounces an unauthorized sentence,’ ” the sentence
may be set aside and “is no bar to the imposition of a proper judgment
thereafter, even though it is more severe than the original unauthorized
pronouncement’ ”]; see also People v. Govan (2023) 91 Cal.App.5th 1015, 1036,
fn. 21.)
8
1354, 1391.) We also assume, for purposes of argument, that Terry I’s
directive to the trial court to delete the base terms imposed on counts 4 and 7
is not law of the case because the sentencing approved in Terry I has since
been recalled and superseded by the resentencing ordered in 2024.
(§ 1172.75, subd. (c) [if current judgment includes a prior prison term
enhancement, “the court shall recall the sentence and resentence the
defendant”]; see People v. Espino (2026) 20 Cal.5th 57, 60 [resentencing
under § 1172.75 “must be a ‘full’ resentencing, at which the trial court must
‘consider a broad range of factors . . . , including “changes in law that reduce
sentences” [citation] and postconviction factors that inure in the defendant’s
favor’ ”].)
Critically, however, the record is manifestly clear that, apart from
mistakenly imposing determinate sentences for counts 3 through 7, the trial
court gave due consideration to the law and the relevant factors in striking
all but one of the enhancements and in finding that Terry fell within the
spirit of the Three Strikes law. Indeed, after striking multiple enhancements
pursuant to section 1385, the court addressed Terry’s request for Romero
relief, considering and commenting on his “very long criminal history” dating
back to 1985, including his being “in and out of jail and prison since he was
13 years old” and the fact that he committed the underlying offenses a mere
12 days after his release on parole. The court also weighed the “absolutely
awful” circumstances of the underlying offenses and the “horrifying” nature
of the crimes and injuries visited upon the store employee victim, the
evidence of Terry’s “rough childhood” and “mental health issues,” and the
rule violations in his “C-File.” The court ultimately denied any relief under
Romero and, as recounted above, reimposed Three Strike sentences for counts
1, 3, 4, 5, 6, and 7 (while ordering section 654 stays on counts 3, 5, and 6).
9
Reasonably viewed, this is not a situation where a court was unaware of the
full scope of its discretionary powers; at most, the court was simply unaware
that it had no authority or discretion to impose both determinate sentences
and Three Strikes sentences.
In any event, it appears highly doubtful on this record that, were we to
remand for a full resentencing, the trial court would do anything other than
eliminate the unauthorized determinate sentences for all the counts.
Accordingly, we find it appropriate to order the deletion of such sentences
from the amended abstract of judgment.
B. Jury Findings on Aggravated Circumstances
Terry contends the trial court violated the Sixth Amendment and
section 1170, subdivision (b), by reimposing the previously imposed upper
term sentences for counts 3 through 7 based on aggravating factors that had
neither been found true beyond a reasonable doubt by a judge or jury nor had
been admitted by him.
Our determination that the base term sentences must be eliminated for
counts 3 through 7 renders this issue moot. (People v. DeLeon (2017) 3
Cal.5th 640, 645.)
C. Custody Credits
Terry contends the trial court erred in failing to update his presentence
credits at the time of resentencing. The People acknowledge this error, and
so do we. (§ 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 37.)
Accordingly, the amended abstract of judgment must be amended to reflect
the number of actual days Terry spent in prison prior to his resentencing on
November 26, 2024.
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D. Count 3 Robbery Conviction
Terry contends that the amended abstract of judgment incorrectly lists
his conviction in count 3 as one for first degree robbery (citing §§ 211, 213,
subd. (a)(2)), when in fact the conviction should be identified as one for
second degree robbery. The People agree, and the record bears this out. On
remand, the court must correct this listing.
DISPOSITION
The matter is remanded with directions to the trial court to recalculate
Terry’s custody credits as of the date of the resentencing hearing. The court
is also directed to prepare an amended abstract of judgment to reflect
elimination of the determinate terms for counts 3, 4, 5, 6, and 7, correction of
Terry’s credits, and correction of the count 3 robbery conviction, consistent
with this opinion. In all other respects, the judgment is affirmed.
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
People v. Terry (A172359)
11
