Filed 8/27/26 P. v. Terry CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
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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.
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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
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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.
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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
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(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
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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
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“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.)
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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).
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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.
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Fujisaki, J.
WE CONCUR:
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Tucher, P. J.
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Petrou, J.
People v. Terry (A172359)