Daily Archives: August 18, 2026

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

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Amelioration, Sentencing

Case 000447

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant, who was serving a life term under the 1994 Three Strikes Law, was entitled to be resentenced under the Three Strikes Reform Act of 2012, subject to a detrermination of danger to public safety in the context of the Reform Act.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) is legally invalid. The resentencing shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75(a)

Second Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 (an initiative) changed the sentence prescribed for a third strike defendant whose current offense is not a serious or violent felony.

Under the Reform Act’s revised penalty provisions, many third strike defendants are excepted from the provision imposing an indeterminate life sentence and are instead sentenced in the same way as second strike defendants That is, they receive a term equal to twice the term otherwise provided as punishment for the current felony conviction. A petition process was set up under section 1170.126 for eligible candidates to seek resentencing under the Reform Act. If eligible, the defendant is to be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Conley (2016) 63 Cal.4th 646, 651-653

Third Holding:

After section 1172.75 was enacted, the Supreme Court needed to consider whether section 1172.75, by permitting recall and resentencing of indeterminate third strike sentences, amends section 1170.126, in violation of article II, section 10 of the California Constitution. It determined that, as a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Discretion, Duty of the court, Sentencing

Case 000446

Posted on by Gary McCurdy

Error and/or relief

Though affirming the lower court’s decision to not exercise its discretion to dismiss the prior serious felony enhancement, there was an error in the calculation of credit for time served.

First Holding:

A trial court’s refusal to dismiss a prior serious felony enhancement is reviewed on appeal under the deferential abuse of discretion standard.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Hodge (2024) 107 Cal.App.5th 985

Second Holding:

When a trial court declines to strike a five-year sentencing enhancement for a serious prior felony conviction, no error occurs if the trial court evaluates all relevant circumstances to ensure that punishment fits the offense and the offender.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 587

Third Holding:

A trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss or where the court considered impermissible factors in declining to dismiss,’ or where the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case.

But it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. A merely debatable ruling cannot be deemed an abuse of discretion. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 637

People v. Johnson (2022) 12 Cal.5th 544, 605

People v. Myers (1999) 69 Cal.App.4th 305, 310

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1029

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [Section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety]

Fifth Holding:

The trial court awarded the defendant the number of days of actual custody credit that reflected his credits from the date of his incarceration to the date of his original sentencing hearing, and ordered the California Department of Corrections and Rehabilitation (CDCR) to calculate credits for the time he has been incarcerated at CDCR. On resentencing, a trial court must calculate a defendant’s custody credits through the date of the resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Discretion, Sentencing

Case 000445

Posted on by Gary McCurdy

Error and/or relief

Convicted of both murder and conspiracy to commit that murder, the court should have stayed the sentence for the conspiracy under section 654.

First Holding:

Section 654(a) provides in pertinent part that 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. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 295

Second Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. The purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.

Authority:

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

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

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Third Holding:

To determine the applicability of section 654, we first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Fourth Holding:

If the convictions involve more than one act, the court reaches step two of the section 654 analysis: whether the course of conduct involved multiple intents and objectives. At step two, whether crimes arise from an indivisible course of conduct turns on the perpetrator’s intent and objective. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law.

Authority:

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

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

Fifth Holding:

Because the conspiracy count in this case did not include a broader objective than the commission of the first degree murder, section 654 applied.

Authority:

People v. Dalton (2019) 7 Cal.5th 166, 247

People v. Lewis (2008) 43 Cal.4th 415, 439 [overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919]

People v. Briones (2008) 167 Cal.App.4th 524, 529

People v. Hernandez (2003) 30 Cal.4th 835, 866 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616

Sixth Holding:

We acknowledge the trial court’s discretion under section 654 to choose which punishment to stay. Nevertheless, we conclude that a remand is unnecessary because the trial court’s decision on which punishment to stay would make no difference to the total sentence for the defendant. In this case, the sentence for the first degree murder count and the conspiracy to commit murder count are the same, 25 years to life. Under these circumstances, we will correct the trial court’s error by modifying the defendant’s sentence to stay the punishment on count 2, the conspiracy to commit murder conviction and the attached enhancements, to comply with section 654.

Authority:

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

People v. Cortez (1998) 18 Cal.4th 1223, 1237
People v. Hernandez (2003) 30 Cal.4th 835, 870 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Calles (2012) 209 Cal.App.4th 1200, 1221

People v. Bey (2025) 108 Cal.App.5th 144, 167

Jurisdiction, Sentencing

Case: 000444

Posted on by Gary McCurdy

Error and/or relief

The trial court had no jurisdiction to modify the long-final judgment in response to a letter from the Department of Corrections and Rehabilitation (CDCR) that pointed out sentencing errors (which were adverse to the defendant’s interests). The defendant appealed, but the Court of Appeal dismissed the appeal because there was no jurisdiction in the lower court, and thus nothing to appeal from.

It did, however, treat the appeal as a petition for writ of habeas corpus and granted the writ, directing the trial court to to vacate the order modifying the defendant’s’ sentence on the conviction for dissuading a witness and reinstate the original sentence imposed on that count.

First Holding:

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. However, there are limited exceptions to this rule. For example, the court has inherent power to correct a clerical error at any time. A court also may resentence a defendant in connection with a petition for writ of habeas corpus or under specified conditions provided in section 1172.1.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Singleton (2025) 113 Cal.App.5th 783, 787, 790–791

Second Holding:

Here, the trial court made two modifications to the defendant’s sentence long after execution of the sentence had commenced. First, the court imposed a 10-year enhancement under section 12022.5(a), rather than under section 667.6(c). A record of the court’s oral pronouncement of the original sentence could not be produced for this appeal, so it is not clear if the court misspoke while announcing the sentence, or if the mistake appeared for the first time in the minute order.

In any event, it is apparent the court intended to impose the enhancement under section 12022.5(a), as alleged in the information and found true by the jury. Therefore, the error was essentially clerical, which the trial court had inherent discretion to correct at any time.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1294 [court’s inadvertent reference to the wrong statute at sentencing was a clerical error]

People v. Singleton (2025) 113 Cal.App.5th 783, 790–791

Third Holding:

Second, the trial court modified the defendant’s sentence to impose a full consecutive middle term on the dissuading a witness count. The original sentencing court imposed a consecutive one-third the middle term on that count, as is generally required under section 1170.1(a). However, the resentencing court determined section 1170.15 required it to impose a full consecutive term, presumably because the victim of the dissuading offense also was the victim of another felony conviction. A court’s failure to impose a full consecutive term under section 1170.15 is a judicial error, not a clerical error.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 792 [a court makes a judicial error when it fails to impose the legally required sentence under section 1170.15]

Fourth Holding:

Courts of Appeal are split on whether trial courts have inherent jurisdiction to correct an unauthorized sentence, i.e., a sentence that could not lawfully be imposed under any circumstance in the particular case. The majority of appellate courts have concluded they do not but others see it differently.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. King (2022) 77 Cal.App.5th 629, 633

People v. Boyd (2024) 103 Cal.App.5th 56, 62–63

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1122–1124

People v. Singleton (2025) 113 Cal.App.5th 783, 796–797

People v. Garcia (2025) 114 Cal.App.5th 139, 144–145

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Cervantes (2025) 115 Cal.App.5th 825

In re G.C. (2020) 8 Cal.5th 1119