Unreported / Non-Citable
Background
On November 2, 2009, a jury convicted Joseph Hagar of willful, deliberate, and premeditated attempted murder and shooting at an occupied vehicle after he rode his bicycle to the passenger side of a van, asked the victim where she was from, yelled a gang name, and shot her three times, injuring her kidney and spine. The jury found true gang enhancements under Penal Code section 186.22, subdivision (b)(1)(C), and firearm enhancements under section 12022.53, subdivisions (b), (c), and (d). On December 8, 2009, the trial court found true the prior prison terms, and Hagar was sentenced to an aggregate term of 42 years to life, including an additional consecutive two years for two prior prison terms under section 667.5, subdivision (b). The Court of Appeal affirmed the judgment in 2010.
On January 24, 2023, Hagar filed a motion for recall of sentence and resentencing under Penal Code section 1172.75 because the prior prison term enhancements were now invalid under amended section 667.5, which limits such enhancements to prior prison terms served for sexually violent offenses. On July 5, 2023, he submitted a sentencing memorandum with letters of support, certificates of achievement, photographs, and artwork. At the March 5, 2025 resentencing hearing, Hagar asked the court to reduce his sentence to 15 years to life, and the People did not oppose this request. The trial court struck the two prior prison terms but declined to otherwise modify the sentence, declined to strike the firearm enhancement in the interests of justice, and stated it had no obligations under the gang enhancements to re-do anything. Hagar timely appealed, and the People conceded the issues he raised.
The Court’s Holding
The Court of Appeal reviews a section 1172.75 resentencing decision for abuse of discretion, asking whether the ruling falls within the bounds of reason. It held that the trial court erred by failing to apply Assembly Bill 333, which narrowed the elements of the section 186.22 gang enhancement effective January 2022 and applies to all non-final judgments. Because Hagar's judgment became nonfinal upon resentencing under section 1172.75, he was entitled to the benefit of the new law, which requires evidence that gang members collectively engaged in a pattern of criminal gang activity and that the predicate offense commonly benefited the gang in ways more than reputational. Both parties agreed, as did the court, that the evidence at trial was insufficient under these standards. The court vacated the true findings on the gang enhancement and remanded the matter for resentencing, and to permit the People to retry the gang enhancement if they choose to do so. The court also noted that the mandatory minimum sentencing issue Hagar raised was moot because the gang enhancement had been vacated.
The court further held that the $1,000 restitution fine imposed under section 1202.4 must be vacated because it became unenforceable ten years after imposition under section 1465.9, subdivision (d), which took effect January 1, 2025. The fine was initially imposed in 2009, and the balance became uncollectible in 2019, making that portion of the judgment void by operation of law. Additionally, the court agreed with the parties that Hagar was entitled to 5,755 actual days of custody credit rather than the 5,566 days calculated by the trial court, and directed the trial court to transmit a corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
Key Takeaways
- When a defendant is resentenced under section 1172.75, the judgment becomes nonfinal, entitling the defendant to the benefits of Assembly Bill 333's narrowed gang enhancement requirements.
- Restitution fines under section 1202.4 become unenforceable and must be vacated ten years after imposition under section 1465.9, subdivision (d).
- When a gang enhancement is vacated due to insufficient evidence under Assembly Bill 333, the People may retry the enhancement on remand if they choose to do so.
- Custody credit calculations must be accurate, and trial courts must transmit corrected abstracts of judgment to ensure proper credit.
Why It Matters
This decision reinforces that resentencing under section 1172.75 requires full application of current law: at resentencing the court must apply the Judicial Council's sentencing rules and any other changes in law that reduce sentences or provide for judicial discretion, including retroactive benefits of legislation like Assembly Bill 333 that narrows enhancement requirements. When Hagar was resentenced pursuant to section 1172.75, he was entitled to the benefits of Assembly Bill 333 because his judgment became nonfinal.
The ruling also clarifies that a section 1202.4 restitution fine is unenforceable after ten years and any portion of a judgment imposing that fine is vacated at that time under section 1465.9, subdivision (d). The decision further emphasizes the importance of accurate custody credit calculations and the trial court's obligation to transmit corrected abstracts of judgment.