Daily Archives: August 17, 2026

Discretion, Sentencing, Standard of review

Case: 000443

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering restitution in the amount of the full retail price of sunglasses that were returned to the victim, a retail store, by the police soon after the theft.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Restitution shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. A victim may also seek lost profits.

Authority:

PEN 1202.4(f)

Second Holding:

A prima facie case for restitution can be made based on a victim’s testimony or other claim or statement of the amount of economic loss. Once a prima facie showing of loss has been made, the burden shifts to defendant to demonstrate that the amount of the loss is other than that claimed by the victim.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

Third Holding:

We review restitution orders for abuse of discretion. Where the specific issue is whether the court’s factual findings support restitution, we review those findings for substantial evidence.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

People v. Hume (2011) 196 Cal.App.4th 990, 995

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 373

Fourth Holding:

Ordering a defendant to pay retail value is justified when a retailer shows it lost the opportunity to sell the stolen goods to customers at that price — in other words, that it lost profits because of the thefts.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1178 [retail value of recovered stolen property was not an appropriate measure of restitution when the prosecutor presented no evidence that the victim retailer lost any profits as a result of the theft]

Fifth Holding:

Had the victim been a person who purchased the sunglasses at a store for the retail price, the retail price may have been the accurate measure of damages.

But the victim retailer did not seek lost profits on its restitution request form or introduce evidence at the hearing supporting such a claim. The trial court, in fact, ordered defense counsel to refrain from examining the store manager about the store’s sales volume after the prosecutor objected on relevancy grounds. The restitution award was therefore limited to the replacement cost of like property.

Using retail value as the sole basis to calculate restitution, based on this record, resulted in a windfall to the victim retailer.

Authority:

PEN 1202.4(f)(3)(A)

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall]

People v. Valle (2023) 93 Cal.App.5th 1329, 1333 [awarding purchase price of stolen cell phone that was returned to victim was error when defendant elicited testimony the victim hoped to use or sell the phone]

Jurisdiction, Plea bargains, Sentencing

Case: 000442

Posted on by Gary McCurdy

Error and/or relief

The defendant entered into a plea agreement that stipulated the length of his sentence and how it was to be served (a split sentence under Realignment). When he was eventually sentenced, the court deviated from that agreed-on sentence. The defendand appealed. While the appeal was pending, the trial court and parties attempted to modify the judgment in accordance with the plea agreement. Because the defendant was never advised of his right to withdraw his plea if the court chose to not abide by the agreed sentence under section 1192.5, the matter is reversed to allow the defendant to withdraw his guilty plea. The trial court had no jurisdiction to modify the judgment while the appeal was pending.

First Holding:

A plea of guilty or nolo contendere may specify the punishment. Where, as here, the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The advisement required by section 1192.5(c) was not given here. When the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

PEN 1192.5

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024–1025 [overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183]

Second Holding:

The three-year prison sentence originally imposed is more severe than the agreed-upon sentence of two years in county jail with one year of mandatory supervision. There is a qualitative difference between an inmate in actual prison custody and a felon released in the community under mandatory supervision.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 935 [length of jail term is significant]

People v. Silva (2016) 247 Cal.App.4th 578, 591–592 [30-day jail sentence consecutive to agreed-upon sentence allowed defendant to withdraw plea]

Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1037

Third Holding:

The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. Thus, action by the trial court while an appeal is pending is null and void. The purported changes to the sentence that were made while appeals in this matter were pending are thus void.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473

Fourth Holding:

While an appeal is pending, a trial court has inherent power to correct clerical errors in its records, including correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here the court had the power to correct the erroneous section designation in the original abstract. But it did not have the power to change the sentence while the appeals were pending. Under such circumstances, the proper procedure is to reverse the void judgment rather than dismiss the appeal.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474

Discretion, Sentencing

Case: 000441

Posted on by Gary McCurdy

Error and/or relief

The gang conviction in count 6 is based on the same felonious conduct that comprises the murder conviction in count 1. Accordingly, the trial court was required to stay execution of one of these sentences. We vacate the defendant’s sentence and remand for resentencing. The trial court shall exercise its discretion under section 654 to determine which of the sentences for counts 1 and 6 must be stayed.

First Holding:

Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Second Holding:

Under amended section 654 (AB 518 (2021–2022 Reg. Sess.)) (Stats. 2021, ch. 441), the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer one. Here, although the lower court’s decision to run the sentence in count 6 concurrently strongly suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine which sentence must be stayed.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Sentencing

Case: 000440

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing concurrent sentences on counts 3 and 4. The sentences on counts 3 and 4 must be stayed under section 654.

First Holding:

The sentences on counts 3 and 4 must be stayed under section 654 because these counts were based on the same acts for which sentence was imposed on counts 1 and 2. Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. Under section 654(a), 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.

An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. If a defendant has two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. Section 654 does not, however, preclude multiple punishment when the defendant’s violent act injures different victims.

Authority:

PC 654

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Duty of the court, Sentencing

Case: 000439

Posted on by Gary McCurdy

Error and/or relief

Relief is granted on this petition for writ of habeas corpus. The defendant is entitled to full resentencing under section 1172.75. In August 2022, pursuant to (now) section 1172.75, the trial court entered an order modifying petitioner’s judgment by dismissing the enhancements imposed pursuant to section 667.5(b). It is undisputed that petitioner was not notified of the court’s intent to modify the judgment, was not appointed counsel, was not notified of any court proceedings related to modification of the judgment, and did not appear at any such proceedings. It is also undisputed that the court did not conduct a full resentencing.

First Holding:

Effective January 1, 2022, what is now section 1172.75 declared invalid most sentence enhancements imposed pursuant to section 667.5(b). Once the Department of Corrections and Rehabilitation (CDCR) identifies a defendant serving a term for a judgment including a qualifying section 667.5(b) enhancement, the trial court is required to recall the sentence and resentence the defendant. The court is also required to appoint counsel.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Section 1172.75 creates a presumption that the resentencing shall result in a lesser sentence than the one originally imposed. It expressly requires the court to consider postconviction factors, including evidence that reflects that circumstances have changed since the original sentencing, and it guides the trial court in selecting among the lower, middle, and upper term on each count. In this case, the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion. It was proper for him to seek relief by way of petition for writ of habeas corpus under the circumstances in this case.

Authority:

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

People v. Rogers (2025) 108 Cal.App.5th 340, 359–361

In re Reno (2012) 55 Cal.4th 428, 449–450 [Frequently used to challenge criminal convictions already affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her freedom, such as a prisoner, to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review. A writ of habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate]