Monthly Archives: July 2026

Amelioration, Sentencing

Case: 000170

Posted on by Gary McCurdy

Error and/or relief

The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. It shall not result in a longer sentence than the one originally imposed.

The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 36

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.

Authority:

PEN 1172.75

People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]

People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]

Appellate Principles, Pleading, Sentencing

Case: 000169

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed a consecutive term of eight months for taking a police vehicle without consent rather than the correct four-month sentence for attempted taking, the crime specified by the complaint. The appropriate term for an attempt is half the sentence for the completed crime, in this case, four months. Accordingly, we will modify the sentence imposed for attempted theft to a term of four months and otherwise affirm the judgment.

First Holding:

In setting the sentence the court imposed a consecutive term of eight months for count 8, a violation of Vehicle Code section 10851. The allegation of count eight of the complaint stated that the defendant attempted to take a vehicle without consent. It does not refer to section 664(a), which specifies that the sentence for an attempt is one-half the term of imprisonment prescribed upon a conviction of the offense attempted. The charging document, however, need not cite the statute to allege an attempt.

Authority:

PEN 952

PEN 664(a)

People v. Hawley (1930) 106 Cal.App. 216, 218 [in charging an attempt to commit theft (even in the absence of direct statutory authorization therefor), it should be sufficient to allege that the defendant unlawfully attempted to commit the same offense]

People v. Heim (1961) 196 Cal.App.2d 1, 4 [defendant was on notice of the charge against him where charging documents specifically referred to attempted burglary]

Second Holding:

An appellate court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

PEN 1260

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

Duty of the court, Sentencing

Case: 000167

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the presentence custody credits. He actually served more time than the court calculated. We award him the additional days he is entitled to and direct the trial court to issue a corrected abstract of judgment and minute order to reflect the correct award.

Holding:

Upon conviction, a criminal defendant is entitled to credit for actual time served. This time includes confinement from the date of arrest to the date when the sentence commences. Generally, a term of four days will be deemed to have been served for every two days spent in actual custody. When a defendant is convicted of a violent felony as defined by section 667.5(c), however, work time is accrued at a rate of no more than 15 percent. Any miscalculation of credits results in an unauthorized sentence, and an unauthorized sentence may be corrected upon discovery.

Authority:

PEN 2900.5(a)

PEN 4019(a)(1)

PEN 4019(f)

PEN 2933.1(a)

People v. Taylor (2004) 119 Cal.App.4th 628, 647

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000166

Posted on by Gary McCurdy

Error and/or relief

The court imposed separate punishments for an indivisible course of conduct. We conclude that all but one of the offenses was temporally distinct and served an independent objective, separate punishments were appropriate. We agree that the defendant broke down victim’s door as part of the robbery, as he had no separate motive to break it. We direct that the one-year sentence for vandalism of the door be stayed.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 thus precludes multiple punishments for a single act or indivisible course of conduct. If a single action or course of conduct by a defendant violates multiple laws, the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, but the trial court may impose sentence for only one offense and must stay the sentence for the others.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Sek (2022) 74 Cal.App.5th 657, 673

Second Holding:

The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If a defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Multiple punishments are also permissible where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken and creating a new risk of harm.

Authority:

People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113

People v. Jackson (2016) 1 Cal.5th 269, 354

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Gaynor (2019) 42 Cal.App.5th 794, 800, 804

Third Holding:

We review for substantial evidence the trial court’s express or implied findings regarding the defendant’s intent and objective viewing the trial court’s determination in the light most favorable to the respondent and presuming the existence of every fact the court could reasonably deduce from the evidence. We will uphold the court’s findings in support of its determination if substantial evidence supports them.

Authority:

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Osband (1996) 13 Cal.4th 622, 730–731