Errors in the abstract of judgment must be corrected. Among other things, the abstract does not reflect that in the defendant’s prior appeal, this court ordered the section 12022.5 enhancement stricken, not stayed.
Clerical errors in abstracts of judgment are subject to correction.
People v. Boyd (2024) 103 Cal.App.5th 56, 63
People v. Jones (2012) 54 Cal.4th 1, 89
People v. Mitchell (2001) 26 Cal.4th 181, 185
The electronics search condition is invalid under Lent and must be stricken.
In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. The court may impose and require such reasonable conditions as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. The trial court’s discretion, although broad, nevertheless is not without limits.
PEN 1203.1
People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121
A three-prong test determines whether a probation condition is unreasonable. A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. All three prongs must be satisfied before a reviewing court will invalidate a probation term.
People v. Lent (1975) 15 Cal.3d 481, 486
People v. Olguin (2008) 45 Cal.4th 375, 379
The first Lent prong is satisfied because the record does not show a relationship between the defendant’s use of electronic devices and the offending conduct sufficient to justify the search condition. There is no information in the record that he used any kind of electronic device to commit, plan, or facilitate his offenses of molesting a child or dissuading a witness. Nor is there any mention whatsoever of his use of a mobile phone, computer, or social media account in connection with the victim or any other conduct that might be said to relate to the offenses in this case.
People v. Castellanos (2020) 51 Cal.App.5th 267, 270, 271, 275–276 [defendant had three cell phones in his car at the time of arrest and cell phones are frequently used in drug sales]
People v. Appleton (2016) 245 Cal.App.4th 717, 719–720 [defendant met victim through social media]
As for the second Lent prong, it goes without saying that the use of electronic devices is not criminal in and of itself.
In re Amber K. (2020) 45 Cal.App.5th 559, 566
The third Lent prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. It requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. Nothing in the testimony at the preliminary hearing, the probation report, or the record of the defendant’s personal history revealed anything about his electronics use that might be connected to his past crimes or potential future criminality. The defendant had no prior history of arrests, convictions, or probation, and his risk of recidivism was assessed as below average. Thus, as in Ricardo P., the burden imposed by the electronics search condition on the defendant’s privacy is substantially disproportionate to the condition’s goal” of deterring future criminality.
In re Ricardo P. (2019) 7 Cal.5th 1113, 1122
In re David C. (2020) 47 Cal.App.5th 657, 663–664
The trial court orally sentenced appellant to “life, with the minimum parole date of 7 years” for the attempted murders in counts 7, 8, and 9. It remarked that the sentences on counts 8 and 9 were, “effectively, 7-years-to-life,” and that the sentence on each count when the firearm enhancements were included was “effectively 8-years-to-life.” The minute order reflects terms of “life plus 7 years” on these three counts, and the abstract of judgment indicates the sentence on each of these counts is “7 years to life.” The abstract of judgment and minute order must be corrected to reflect sentences of life on each of the attempted murder counts (counts 7, 8, and 9), plus one year and four months for each related firearm enhancement.
Section 664(a) prescribes a punishment of imprisonment in the state prison for life with the possibility of parole for the crime of attempted willful, deliberate, and premeditated murder. The minimum term a person sentenced to life must serve before parole is seven years; that minimum applies to each consecutively imposed life term.
PEN 664(a)
Although seven years to life is a common shorthand for such a sentence, it is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility. There is a minimum parole eligibility of seven years, but that is not part of the sentence that is pronounced. Thus, a more accurate statement of the sentence for attempted murder is simply life, plus any determinate enhancements. The trial court accurately stated that the sentences on counts 7, 8, and 9 were life, with the minimum parole date of 7 years, but the minute order and abstract recording the trial court’s oral pronouncement incorrectly impose a minimum term on the attempted murder sentences.
People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4
People v. Robbins (2018) 19 Cal.App.5th 660, 678
Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment or minute order, the oral pronouncement controls, and we may order correction of any such errors.
People v. Mitchell (2001) 26 Cal.4th 181, 185
The matter is remanded for the juvenile court to correctly determine the maximum period of confinement the minor may be subjected to under the commitment order. The correct term appears to be five years, less than the term announced by the juvenile court.
When a minor is named a ward of the court and removed from the custody of his parent, the juvenile court must set a maximum term of confinement that does not exceed the middle term of imprisonment that could be imposed on an adult convicted of the same offense. A court is prohibited from committing a juvenile to any juvenile facility for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. The court may aggregate terms for multiple counts or previously sustained petitions in the manner set out in Penal Code section 1170.1 for adults, requiring subordinate felony terms be imposed at one-third the middle term. The same rule applies to misdemeanors.
WIC 726
In re David H. (2003) 106 Cal.App.4th 1131
At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.
(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.
(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.
(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)
The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.
PEN 1385(c)
People v. Buford (2016) 4 Cal.App.5th 886, 914
In re Shaputis (2008) 44 Cal.4th 1241, 1255
People v. Gonzalez (2024) 103 Cal.App.5th 215, 228
Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.
People v. Ramirez (2021) 10 Cal.5th 983, 1042
People v. Bravo (2025) 107 Cal.App.5th 1144, 1157
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.
PEN 1172.75
People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361
People v. Monroe (2022) 85 Cal.App.5th 393, 402
People v. Valenzuela (2019) 7 Cal.5th 415, 424-425
When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.
PEN 1170
People v. Flores (2022) 75 Cal.App.5th 495, 500
Section 1385(c)(1) provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.
PEN 1385(c)(1)
People v. Walker (2024) 16 Cal.5th 1024, 1028
Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.
PEN 1170(b)(6)
People v. Salazar (2023) 15 Cal.5th 416, 419
Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.
People v. Hillburn (2023) 93 Cal.App.5th 189, 205