Unreported / Non-Citable
Background
Isreal DeLeon was convicted in 2004 of the attempted murders of Elinerto Vela and Anthony Garcia. The jury found true firearm enhancements under Penal Code section 12022.53, subdivision (d), and found premeditation as to the shooting of Anthony; the trial court found prior prison term enhancements true. The original sentence was an upper term of nine years on count 1 plus one year for a prior prison term enhancement, and consecutive life with the possibility of parole on count 2 plus one year for a prior prison term enhancement and two 25-years-to-life firearm enhancements. The Fifth District affirmed on direct appeal.
In July 2023, the public defender petitioned for recall and resentencing under section 1172.75, which invalidates prior prison term enhancements imposed before January 1, 2020, and asked the Kern County Superior Court to strike them, reduce the firearm enhancements to 20-year determinate terms, and impose a midterm sentence. After two substitutions of appointed counsel, numerous continuances, and status hearings at which DeLeon was absent, Judge Michael G. Bush held the resentencing hearing on April 10, 2025; DeLeon first appeared by video, then by telephone after a video problem.
The court dismissed the two prior prison term enhancements and reduced the count 1 term to the midterm of seven years, but declined to strike the firearm enhancements or alter the life sentence on count 2. DeLeon appealed; appointed counsel filed a Wende brief raising no issues, and DeLeon's supplemental letter brief raised several claims that the court addressed before affirming.
The Court’s Holding
The court held the trial court complied with section 1172.75 by recalling the sentence, dismissing the invalid prior prison term enhancements, and conducting a full resentencing applying later amendments to sections 12022.53 and 1385. Although DeLeon invoked section 1385, subdivision (c) mitigating circumstances—multiple enhancements in one case and a sentence over 20 years—the court found no abuse of discretion in keeping the firearm enhancements. The trial court weighed DeLeon's rehabilitation against the horrendous manner of the shootings, his release on parole only four days earlier, and his hearing statements minimizing the crimes because the victims survived. Section 1385 discretion does not reach the jury's premeditation finding on count 2, an alternate penalty provision rather than an enhancement, so the life term remained required.
The court rejected DeLeon's challenge to the nearly two-year delay and continuances, finding good cause for each: the public defender's conflict and new counsel's need to prepare, DeLeon's illness and quarantine, the trial judge's unavailability, DeLeon's refusal to appear, the second counsel's conflict and the third counsel's need to prepare, and the parties' scheduling conflicts. On his absence from status hearings, the court assumed any section 977 waiver defect but held the error harmless beyond a reasonable doubt: the status hearings were not critical stages, addressed only scheduling and preparation, and DeLeon fully participated in the resentencing hearing itself.
Finally, the court rejected the argument that erroneous minute-order references to section 1172.6 and the trial court's initial misstatement showed confusion. The petition, briefing, and entire hearing proceeded under section 1172.75, and the court never vacated the convictions under section 1172.6—a path foreclosed because DeLeon was convicted as the actual perpetrator. The denial of his in propria persona augmentation request was not prejudicial, and the April 10, 2025 resentencing order was affirmed.
Key Takeaways
- A section 1172.75 resentencing requires a full resentencing under current law, but the trial court retains broad discretion to keep firearm enhancements despite section 1385 mitigating circumstances when countervailing factors neutralize them.
- A defendant's absence from routine status hearings, even without a proper section 977 waiver, is harmless where the hearings addressed only scheduling and preparation rather than the merits.
- Clerical minute-order errors labeling a section 1172.75 petition as a section 1172.6 matter do not change the nature of the proceedings when the petition, briefing, and hearing all proceed under section 1172.75.
- A premeditation finding under section 664, subdivision (a) is an alternate penalty provision, not an enhancement, so it cannot be dismissed under section 1385.
- A defendant convicted of attempted murder as the actual perpetrator is ineligible for section 1172.6 relief as a matter of law.
Why It Matters
The opinion shows how sections 1172.75, 12022.53, and 1385 interact at resentencing: even with statutory mitigating circumstances present, a trial court may retain enhancements when it identifies substantial countervailing factors, including the defendant's own hearing statements. It also confirms that missing section 977 waivers at noncritical status hearings are tested for prejudice rather than automatic reversal.
The decision clarifies that mislabeled minute orders and a judge's momentary statutory misstatement do not convert a section 1172.75 resentencing into a section 1172.6 vacatur proceeding, and that actual perpetrators cannot use section 1172.6 to relitigate attempted murder convictions.