People v. Gonzales
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After defendant successfully petitioned the trial court under Penal Code section 1170.95 to vacate his second degree murder conviction, his conviction was redesignated as the uncharged target offense, battery, in accordance with section 1170.95, subdivision (e).
The Court of Appeal concluded that when a defendant is resentenced under a legislative enactment, such as section 1170.95, that gives inmates serving otherwise final sentences the opportunity to petition to take advantage of ameliorative changes to the law governing their convictions, there is no ex post facto violation if the court resentences the defendant under the then existing law so long as that law does not prescribe a penalty that is greater than the penalty that was prescribed for the criminal act at the time it was committed. The court also found that the trial court did not abuse its discretion in imposing a three year sentence. In this case, the trial court acknowledged that if the fight had not been for the benefit of a gang, the appropriate sentence would be a misdemeanor. The court concluded that the trial court did not abuse its discretion in determining that the high term of three years was appropriate. Accordingly, the court affirmed the trial court's judgment.
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