by David Kim

The California Court of Appeal, Second Appellate District, ruled that trial courts possess inherent authority to correct unauthorized sentences whenever the issue is presented, regardless of whether the original judgment has become final or been affirmed on appeal. The Court rejected the trial court’s conclusion that it lacked jurisdiction to correct an apparent sentencing error without a habeas corpus petition, reasoning that an unauthorized sentence does “not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal.”

Background

In 2001, Jose Luis Cervantes, Jr., was convicted of attempted second degree murder. Cervantes was not the actual shooter. His codefendant, David Estrada, personally discharged the firearm. The trial court imposed a seven-­year sentence for the attempted murder conviction, plus a consecutive 25-­year-­to-­life firearm enhancement under California Penal Code § 12022.53(d) and (e), and a 10-­year gang enhancement under § 186.22(b), for an aggregate sentence of 42 years to life.

On appeal in 2003, the gang enhancement was stricken, and Cervantes’ sentence was reduced to 32 years to life. However, as the trial court later discovered, this created a sentencing error. Because Cervantes was not the shooter, the firearm enhancement could only be imposed vicariously through the gang enhancement under § 12022.53(e)(1). Once the gang enhancement was stricken, the court could no longer impose the firearm enhancement vicariously, meaning Cervantes “should have been sentenced solely upon the substantive crime of attempted murder.”

In February 2021, Cervantes filed a petition for resentencing under § 1170.95 (later renumbered § 1172.6), which the trial court denied because the statute at that time did not include resentencing for attempted murder convictions. Cervantes filed a request for reconsideration on January 20, 2022. On July 12, 2022, the trial court denied the petition again, ruling Cervantes had not established “a prima facie case for relief.” Cervantes then filed a motion for “rehearing” on November 2, 2022.

At a January 2023 hearing, the trial court acknowledged that Cervantes’ sentence appeared unauthorized and that he was serving a longer sentence than he should have received. Nevertheless, the court ruled it lacked jurisdiction to correct the error because Cervantes had filed a § 1172.6 petition rather than a habeas corpus petition. The court stated it would need a request from the California Department of Corrections and Rehabilitation (“CDCR”) or the district attorney to act. The prosecutor acknowledged the error and promised to contact the district attorney’s office because “obviously, we don’t want [Cervantes] in a day longer than he needs to be.” At a second hearing, the court again ruled it lacked jurisdiction. The Court of Appeal granted Cervantes’ application for relief from a late notice of appeal.

Analysis

The Court began its analysis by emphasizing the well-­established principle that trial courts possess inherent authority to correct unauthorized sentences at any time. People v. Codinha, 92 Cal. App. 5th 976 (2023). The Court observed that “the law is well settled” that had a court attempted to “impose a sentence not authorized by law,” the sentence “would have been subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court” and would present “no bar to the imposition of a proper judgment thereafter.” A sentence is “legally unauthorized” where the defendant is sentenced to the wrong term. People v. Ramirez, 159 Cal. App. 4th 1412 (2008).

The Court cited extensive California Supreme Court precedent establishing that trial courts may correct unauthorized sentences at any time the issue is presented. In re G.C., 458 P.3d 70 (Cal. 2020); People v. Mendez, 443 P.3d 896 (Cal. 2019); People v. Picklesimer, 226 P.3d 348 (Cal. 2010); People v. Cunningham, 25 P.3d 519 (Cal. 2001).

Importantly, the Court clarified that trial courts need not wait for the district attorney or CDCR to file a motion to act. “While a motion for such action on the part of the court is entirely appropriate, neither motion nor notice to an adverse party is essential. The court has full power to take such action on its own motion and without any application on the part of any one.” Codinha.

The Court rejected the trial court’s conclusion that it lacked jurisdiction to correct an unauthorized sentence after the remittitur issued from the prior appeal. The California Supreme Court has held that an unauthorized sentence “do[es] not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal,” the Court stated. In re G.C. Additionally, “it is settled that an unauthorized sentence is subject to correction despite the circumstance that an appeal is pending,” according to the Court. Cunningham.

The Court also rejected the People’s argument that the trial court’s July 12, 2022, prima facie-­stage denial of Cervantes’ § 1172.6 petition foreclosed relief. The trial court accepted Cervantes’ motion for rehearing, and at that hearing, its own findings supported a strong showing that § 1172.6 relief remained a possibility. Senate Bill 1437 eliminated vicarious liability predicated on the natural-­and-­probable-­consequences doctrine and the former “automatic equal” imputed-­liability approach for crime participants. At Cervantes’ 2001 trial, jurors were instructed on proximate cause using “natural and probable consequence” concepts and that “each principal, regardless of the extent or manner of participation, is equally guilty.” The Court observed that such pre-­People v. Banks, 351 P.3d 330 (Cal. 2015), instructions are not currently the law and could mislead jurors. People v. Strong, 514 P.3d 265 (Cal. 2022). Coupled with the trial court’s findings that Cervantes was not the shooter and was not properly subject to imputed liability, the Court concluded Cervantes was entitled, at a minimum, to a second-­stage evidentiary hearing on his resentencing petition.

The Court rejected the trial court’s ruling that Cervantes had to file a habeas petition to obtain resentencing. Where a pending § 1172.6 petition was before the court and the sentence imposed was unauthorized, a habeas petition is not necessary, the Court held. People v. Davis, 77 P. 651 (Cal. 1904); Codinha.

The Court stated that a “pleading should be judged by the substance of its allegations rather than its label.” Quoting Malott v. Summerland Sanitary Dist., 55 Cal. App. 5th 1102 (2020). Based on its allegations, the trial court should have treated Cervantes’ motion for rehearing as a request for habeas relief or a motion to vacate a void sentence, the Court explained. “We will not elevate form over substance where a defendant’s liberty is at stake.” Picklesimer. The Court deemed the appeal a proper case to treat as a petition for writ of habeas corpus to authorize resentencing.

The Court also addressed § 1172.1, which was amended in 2024 after the trial court hearings in this case. The amended statute now allows a trial court to recall a sentence “on its own motion” at any time “the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.” People v. Roy, 110 Cal. App. 5th 991 (2025). The Court noted that while § 1172.1(c) provides that a defendant is not entitled to file a petition seeking relief and courts need not respond to such requests, defendants “may nonetheless be able to ‘invite’ the court to exercise its discretionary powers.” Roy. The statute does not “deprive the defendant of a substantial stake in the outcome” nor excuse a court’s failure to promptly correct a sentence it finds excessive and unauthorized. Mendez.

Conclusion

Accordingly, the Court reversed the order and remanded with instructions to conduct a prompt resentencing hearing, directing that if the trial court finds the sentence is unauthorized, it must correct it. See: People v. Cervantes, 115 Cal. App. 5th 825 (2025).  

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