Filed 10/5/26 P. v. Alvarado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E085689
v. (Super.Ct.No. RIF1900004)
ANDRES ALVARADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.
Affirmed in part, remanded with directions in part.
Stephanie L. Gunther, 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, Assistant Attorney General, Christopher P. Beesley and
Connor O. Sakati, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Andres Alvardo appeals from the trial court’s
postjudgment order denying his request to impose a lower term sentence following a
hearing pursuant to Penal Code1 section 1172.75. On appeal, defendant argues the trial
court erred in failing to hold a full resentencing hearing under section 1172.75 and
applied the wrong legal standards. He also contends that the court erred in failing to
award him credit for all the time he served when it reimposed his sentence. We agree
with the parties that the matter must be remanded for the limited purpose of calculating
and updating the credits defendant had earned. In all other respects, we affirm.
II.
PROCEDURAL BACKGROUND
In June 2019, pursuant to a negotiated plea agreement, defendant pled guilty to
carjacking (§ 215, subd. (a)). He also admitted that he had sustained a prior strike
conviction (§ 667, subds. (c), (e)(1)) and a prior prison term (§ 667.5, subd. (b)). In
return, the remaining allegations were dismissed and defendant was sentenced to a
stipulated term of 11 years in state prison, consisting of a five-year middle term for the
carjacking, doubled due to the prior strike, plus one year for his prior prison term.
After the Legislature invalidated most prior prison terms and created a means for
defendants with now-invalid prior prison terms to petition for recall and resentencing
1 All future statutory references are to the Penal Code unless otherwise stated.
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pursuant to section 1172.75, in 2023, the trial court struck the now-invalid prison prior.
The court then continued defendant’s case to a later date to “bring the matter back for
sentencing.”
On January 10, 2025, the trial court held the resentencing hearing. At that hearing,
the court noted that defendant had requested a doubled low-term sentence instead of the
originally imposed doubled mid-term. The court also stated that it had read the 40 pages
of documentation that defendant had submitted to justify his request to lower the sentence
for carjacking from the middle term to the lower term.
Specifically, the court stated, “I was able to go through it. In looking at the
defense’s resentencing brief, basically, since we already struck the one year prison
prior—we did that already—what you’re asking the Court to do at this point is under the
section 1172.75, basically, subdivision(d)(3) where the Court may consider post-
conviction factors, including but not limited to, and it goes through a list of things.
Basically what you’re asking is—inviting the Court to look at your client, take a look at
his disciplinary record and other records as he’s been in custody and then consider a
resentencing. [¶] Basically what you’re inviting the Court is do is instead of sentencing
him to the mid term doubled, lower that to the low term doubled. And as authority, you
cited me two sections: The first, Mr. Henderson, was to 1170(b)(6), which gives the
Court a couple of factors that the Court must consider in determining whether or not to
impose low term versus mid term. [¶] I’ll read that into the record; that is Penal
Code 1170(b)(6). Notwithstanding paragraph 1, unless the Court finds that the
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aggravating circumstances outweigh the mitigating circumstances, imposition of the low
term would be contrary to the interest of justice, the Court shall order the imposition of
the low term if any of the following was a contributing factor in the omission of the
offense. And the one you highlight for the Court would be his youthfulness which falls
under (b); so, again, that is 1170(b)(6)(b). That one reads: The person is a youth or was a
youth as defined under subdivision (b) of section 1016.7 at the time of the commission of
the offense. [¶] I went back to see and I found his birthday in the Court’s file and the
date of commission of the offense, looks like he just missed it. His birthday was in April
and the offense was later that year. [¶] . . . [¶] So 1016.7(b) says that he was under 26, so
he missed it by a few months; he’s definitely over 26. I would find that section—the
other subsections don’t apply either just for the record. 1170(b)(6)(a) is regarding
psychological, physical childhood trauma, so we don’t have that; correct,
Mr. Henderson?” Defense counsel thereafter conceded the factors under section 1170,
subdivision (b) did not apply.
The court thereafter noted, “We’re just talking about the youthfulness, and I would
find that that section does not apply because he was over 26. [¶] Now, you invite the
Court, then, under section 7 which is broader. Under paragraph 7, again, 1170(b)(7):
Paragraph 6 does not preclude the Court from imposing the lower term even if there is no
evidence of those circumstances listed in paragraph 6. [¶] And then in your brief, you
invite the Court to, basically, consider the factors that we see in 1172.75(d)(3). And in
looking at your brief, I saw that he had participated in masonry and he completed a
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program where he became—there are different levels; I saw he completed all the levels
that was included. He completed class work, reading, proficiency, stuff like that which is
all important to know that. [¶] 1172.75(d)(3) indicates the Court may consider post-
conviction factors, does not have to; it’s not a shall. I did look at that and have
considered it. [¶] At this time, I would decline the invitation by defense to reduce the
mid term to low term. One of the main factors is this was a negotiated disposition with
the People where he pled guilty to the carjacking and received mid term of five, doubled
for ten, and then, of course, he got the one year prison prior which has since been struck.
But because this was a sentence pursuant to a disposition—negotiated disposition with
the People, even notwithstanding having looked at the documents that you provided,
Mr. Henderson, I think it would basically rob the People of the benefit of their bargain in
terms of their decision to offer—make the offer they made and forego going to trial and
getting a higher sentence. [¶] At this point, the Court is going to deny the defense’s
invitation to reconsider the—I have reconsidered but I decided not to reduce the sentence
from mid term to low term. At this time, the sentence will remain as is, mid term times
two for ten. There is nothing else we have to do but I will be happy to hear from you
further.” Defendant timely appealed.
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III.
DISCUSSION
A. Resentencing Hearing
Defendant contends that the sentencing court erred because it did not afford him
the full resentencing hearing pursuant to section 1172.75. He claims that, when the court
resentenced him, it misunderstood the scope of its discretion and applied the wrong legal
standard by resentencing him to the same term for the carjacking it had previously
imposed. He asserts that the court declined his “ ‘invitation’ ” to reduce to the lower term
because it was a negotiated disposition and the court did not want to “ ‘rob the People of
the benefit of their bargain.’ ”
Section 1172.75, subdivision (a), provides that “[a]ny sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5,
except for any enhancement imposed for a prior conviction for a sexually violent
offense . . . is legally invalid.”
Once a trial court receives the information from the California Department of
Corrections and Rehabilitation about a defendant (see § 1172.75, subd. (b)) and
determines that the defendant’s current judgment includes a prior prison term
enhancement that is now legally invalid, “the court shall recall the sentence and
resentence the defendant.” (Id., subd. (c); see People v. Rhodius (2025) 17 Cal.5th 1050,
1054.)
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Section 1172.75, subdivision (d) provides certain mandatory and permissive
directives for the resentencing, stating in pertinent part: “(1) Resentencing pursuant to
this section 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.
Resentencing pursuant to this section shall not result in a longer sentence than the one
originally imposed.
“(2) The court 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.
“(3) 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.
“(4) Unless the court originally imposed the upper term, the court may not impose
a sentence exceeding the middle term unless there are circumstances in aggravation that
justify the imposition of a term of imprisonment exceeding the middle term, and those
facts 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.”
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Section 1171 provides that in postconviction proceedings under section 1172.75
(among other “[a]meliorative statutes” (§ 1171, subds. (a)), “[t]he court shall consider
any pertinent circumstances that have arisen since the prior sentence was imposed and
has jurisdiction to modify every aspect of the defendant’s sentence, including if it was
imposed after a guilty plea” (id., subd. (c)(2), italics added), so long as there is no more
specific rule prohibiting the court from doing so. (Id., subd. (c).) Relatedly, the statute
states that “[a]ny changes to a sentence shall not be a basis for a prosecutor or court to
rescind a plea agreement.” (Id., subd. (c)(3).)
Section 1171, subdivision (e), provides that “[t]his section does not diminish the
ability of the prosecution to oppose relief requested in a postconviction proceeding.”
“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.) As noted above, the full resentencing procedure in
section 1172.75 applies to “all sentences, including stipulated sentences imposed as part
of a plea bargain,” and “the prosecution may not withdraw from the plea bargain if the
court imposes a lower sentence on resentencing.” (People v. Carter (2023) 97
Cal.App.5th 960, 977 (Carter).)
Generally, a trial court’s discretionary decision whether to dismiss or strike a
sentencing allegation or enhancement is reviewed for an abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373; accord, People v. Williams (1998) 17 Cal.4th 148,
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159.) “ ‘ “[T]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary.” ’ ” (Carmony, at p. 376.)
However, a trial court’s discretion must be “ ‘guided and controlled by fixed legal
principles’ ” and “ ‘exercised in conformity with the spirit of the law.’ ” (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “A trial court abuses its discretion
when it applies the wrong legal standards applicable to the issue at hand.” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 85.) Additionally, “an erroneous
understanding by the trial court of its discretionary power is not a true exercise of
discretion.” (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) Furthermore, “ ‘[a]n
abuse of discretion is found where the court “relies upon circumstances that are not
relevant to the decision or that otherwise constitute an improper basis for decision.”
[Citation.]’ ” (People v. Gonzalez (2024) 107 Cal.App.5th 312, 323.)
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391 (Gutierrez); accord, People v. McDavid (2024) 15 Cal.5th 1015, 1023; see
People v. Pearson (2013) 56 Cal.4th 393, 419 [a court abuses its discretion when it
misunderstands the scope of that discretion].) A trial court that misunderstands the scope
of its sentencing discretion cannot be said to have properly exercised that discretion.
(Gutierrez, at p. 1391; accord, People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In
such circumstances, the appropriate remedy is to remand for resentencing unless the
record clearly indicates the court would have reached the same conclusion “even if it had
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been aware that it had such discretion.” (Gutierrez, at p. 1391; Belmontes, at p. 348,
fn. 8.)
Defendant contends that the sentencing court failed to provide him with the full
resentencing contemplated in section 1172.75. We disagree. The record demonstrates
that the court granted defendant a full resentencing hearing pursuant to section 1172.75.
After striking the invalid prior prison term from defendant’s sentence, the court held a
separate resentencing hearing. At that time, the court acknowledged receiving a 40-page
document from defendant in support of a low-term sentence. The statements made by the
court during the resentencing hearing show that the court understood the breadth of its
discretion. The court remarked that “what you’re asking the Court to do at this point
is . . . instead of sentencing him to the mid term doubled, lower that to the low term
doubled.” That statement shows the court understood the request defendant was making.
The court’s analysis of sentencing factors under section 1170 and postconviction factors
also demonstrates that the court understood this resentencing was a full resentencing and
was not limited to simply striking the prior prison term.
In addition, the court’s consideration of defendant’s prior plea agreement during
the hearing does not constitute an abuse of discretion, as defendant argues. While it is
true that the resentencing court is not bound by the terms of a prior plea agreement
(Carter, supra, 97 Cal.App.5th at p. 977), the court never suggested that it was legally
bound by the plea agreement’s terms. Although the court considered the plea bargain as
“one of the main factors” in its decision, it also considered defendant’s new arguments
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and the documentary evidence defendant filed in support of his requested lower sentence.
The court considered—and rejected—defendant’s argument that section 1170, which
governs initial sentencing, requires resentencing him to the lower term. The court also
considered—and rejected—defendant’s contention that section 1172.75,
subdivision (d)(3) postconviction factors required lowering his sentence.
Contrary to defendant’s claims, the record here does not affirmatively demonstrate
that the sentencing court did not fully exercise its discretion or that the court did not
understand the scope of its discretion. Unlike in Carter, supra, 97 Cal.App.5th 960, a
case relied upon by defendant, the People here did not oppose defendant’s
section 1172.75 resentencing because the court had “no discretion to conduct a full
resentencing” due to “a stipulated sentence per the parties’ plea agreement.” (Id. at 965.)
The trial court in that case “acknowledged that Carter ‘ha[d] taken advantage of the
rehabilitative aspects of incarceration,’ ” and “stated that if Carter’s ‘conviction and
sentencing were not the product of an accepted plea bargain, the court could take [his]
achievements into account.’ ” (Ibid.) Ultimately, the trial court in Carter determined that
“it did not have the authority to modify the negotiated sentence beyond striking the prison
prior.” (Ibid.) The court found that to do so where the “ ‘defendant’s sentence was the
product of a plea bargain would divest the People of the benefit of their bargain.’ ”
(Ibid.) On appeal, the Court of Appeal determined that the trial court erred in concluding
that it lacked the authority to modify the sentence and in refusing to resentence the
defendant. (Id. at p. 977.)
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Unlike the trial court in Carter, which found grounds for resentencing the
defendant to a lower sentence but determined that the plea agreement bound its
discretion, the sentencing court here never found defendant’s plea agreement binding.
Rather, the court considered the plea agreement as a factor and in conjunction with the
evidence defendant submitted and arguments made by defendant’s trial counsel. The
court here ultimately determined that defendant did not merit a lesser sentence after
weighing all the factors. In sum, the sentencing court understood the scope of its
discretion and properly exercised that discretion.
B. Calculation of Custody Credits
In his supplemental opening brief, defendant argues the trial court erred when it
failed to award him credit for time served when it reimposed his sentence. The People
concede the court erred in failing to calculate defendant’s custody credits when it
resentenced defendant. We agree with the parties.
The trial court must calculate actual custody credits and include any such credits
in the new amended abstract of judgment. When defendant was originally sentenced in
2019, the trial court credited his sentence with 194 days of actual custody credits and
29 days of conduct credit for a total of 223 days of presentence custody credits. Although
defendant was resentenced on January 10, 2025, the court did not then recalculate his
actual custody credits. Defendant’s 2025 abstract of judgment from his second
sentencing notes the same 223 days of presentence custody credits.
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Time served in custody shall be credited at resentencing when a judgment is
subsequently declared invalid or is modified during the term of imprisonment.
(§ 2900.1.) “It is the duty of the court imposing the sentence to determine . . . the total
number of days to be credited.” (§ 2900.5 subd. (d).) Thus, “when a prison term already
in progress is modified as the result of an appellate sentence remand, the sentencing court
must recalculate and credit against the modified sentence all actual time the defendant
has already served.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29; see People v.
Garner (2016) 244 Cal.App.4th 1113, 1118 [a “judgment must include a custody credit
award that includes time spent in prison prior to the resentencing hearing leading to this
appeal”].)
Accordingly, the trial court must calculate the actual custody credits owed to
defendant at the time of resentencing and include any such credits in the amended
abstract of judgment.
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IV.
DISPOSITION
We remand to the trial court to calculate defendant’s custody credits up to his
January 10, 2025 resentencing. The court shall forward a certified copy of the amended
abstract of judgment to the California Department of Corrections and Rehabilitation. In
all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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