Monthly Archives: August 2026

Amelioration, Sentencing

Case: 000293

Posted on by Gary McCurdy

Error and/or relief

In 2022, the trial court resentenced the defendant under Penal Code section 1172.75, which invalidated prior prison enhancements, by striking the enhancements. The trial court, however, left intact the Three Strikes sentences. The court should have considered whether to reduce the sentence in line with the Three Strikes Reform Act.

Holding:

A trial court is required to apply the Three Strikes Reform Act of 2012 at a section 1172.75 proceeding absent a finding the defendant poses an unreasonable risk of danger to public safety.

Authority:

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

Amelioration, Discretion, Fines and fees, Sentencing, Standard of review

Case: 000292

Posted on by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the abstract of judgment must be amended to accurately reflect his actual custody credits, and several fines and fees must be reduced or vacated.

First Holding:

Effective January 1, 2022, section 1172.75(a) invalidated sentence enhancements imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5. With exceptions not relevant here, the statute requires that sentences that include these invalid enhancements be recalled and the defendant resentenced.

Authority:

PEN 1172.75

Second Holding:

We review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion. Section 1172.75(d), vests the superior court with broad discretion based on an inherently factual inquiry. Under an abuse of discretion standard, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Garcia (2024) 101 Cal.App.5th 848, 856–857

Third Holding:

An appellate court may not substitute its judgment about appropriate sentencing for that of the trial court, but instead must give due regard to the discretion vested in that court. The appellate court can find a reversible abuse of discretion only if it concludes that no reasonable judge would have agreed with the trial court’s decision. Unless that standard is met, the appellate court must affirm the decision, even if it might have ruled differentlyin the first instance.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 258

Fourth Holding:

The abstract of judgment reflects credit for time served but reflects 326 fewer days than the defendant is entitled to. It must be corrected to reflect the correct number of days.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Fifth Holding:

The trial court imposed a $30 criminal conviction fee on each count pursuant to Government Code section 70373. It also imposed a court operation fee of $40 per count pursuant to section 1465.8, subdivision (a)(1). However, Government Code section 70373 only applies to convictions after the statute’s January 1, 2009 effective date. Similarly, the court operations fee is only applicable to convictions after the statute’s 2003 operative date. Because the defendant suffered the convictions in 1995, the criminal conviction and court operations fees must be stricken.

Authority:

PEN 1465.8

People v. Davis (2010) 185 Cal.App.4th 998, 1000

People v. Alford (2007) 42 Cal.4th 749, 753, 754

Sixth Holding:

The restitution fine must be vacated, as it was imposed more than 10 years ago. Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

SeventhHolding:

The parole revocation fine must be reduced from $300 to $200. At the resentencing hearing, the court imposed a $300 restitution fine and imposed and stayed a $300 parole revocation fine. However, because the trial court originally imposed a $200 restitution fine, and the court may not impose a more severe punishment on resentencing, we agree with the parties that the stayed parole revocation fine must be reduced to $200, matching the originally imposed restitution fine.

Authority:

PEN 1172.75

Appellate Principles, Duty of the court, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000291

Posted on by Gary McCurdy

Error and/or relief

This was a People’s appeal from the trial court’s grant of a motion under section 995 to set aside counts and enhancements in the information that the magistrate found insufficient evidence to support at the preliminary hearing. Grant of section 995 motion affirmed.

[GARY NOTE: This opinion went into depth analyzing the sufficiency of evidence on the question of gang common benefit and whether the members collectively engaged in the pattern of criminal gang activity that the statute requires. It discussed several published cases as example that guided its decision. I have not included the discussion or the cases cited, as that depth is beyond the scope of this blog. I’m happy to provide the full opinion to any attorney who asks me for it.]

First Holding:

Under section 995, an information will be set aside if the defendant was committed without reasonable or probable cause. To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. Reasonable or probable cause’ means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. Probable cause signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. The showing required at this stage is exceedingly low, and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged.

Authority:

Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 [a defendant may utilize section 995 to strike invalid enhancement allegations]

People v. Chapple (2006) 138 Cal.App.4th 540, 545

People v. Mower (2002) 28 Cal.4th 457, 473

People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276

People v. Garcia (2018) 29 Cal.App.5th 864, 870–871

Second Holding:

When we review a section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate. We must draw all reasonable inferences in favor of the information and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant’s guilt.

Authority:

People v. San Nicolas (2004) 34 Cal.4th 614, 654 [reviewing denial of sec. 995 motion made after magistrate struck special circumstance allegation]

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Third Holding:

As here with respect to the gang evidence presented by the prosecution, where the facts are undisputed, the determination of probable cause constitutes a legal conclusion which is subject to independent review on appeal.

Authority:

People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 326

People v. Scully (2021) 11 Cal.5th 542, 582 [independent standard of review applies when magistrate determines that the People did not put forth sufficient evidence to support the charges]

Fourth Holding:

Not every crime committed by gang members is related to a gang. Concerned with lax interpretations of the prior gang law that allowed for overly expansive application of gang enhancements, the Legislature amended section 186.22 effective January 1, 2022. The amendments to section 186.22 narrowed the definition of a criminal street gang and increased the prosecution’s burden of proof by altering the definition of a criminal street gang and instituting new requirements to prove that a criminal street gang engaged in a pattern of criminal gang activity.

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Cooper (2023) 14 Cal.5th 735, 744

People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6

Fifth Holding:

For the reasons stated in this opinion, we conclude that there was insufficient evidence that a reasonable person could harbor a strong suspicion that gang’s predicate offenses were either committed for the gang’s common benefit or that the gang members collectively engaged in a pattern of criminal gang activity as defined under section 186.22. Finding insufficient evidence that the gang meets the definition of a criminal street gang under section 186.22, we discern no error in the trial court’s partial grant of the section 995 motion as to the gang enhancements and gang related firearm enhancements as to all defendants.

Authority:

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Duty of the court, Sentencing

Case: 000290

Posted on by Gary McCurdy

Error and/or relief

On resentencing following remand from the prior appeal, the court failed to recaculate the credit for time served.

First Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The trial court must calculate the credits. It is not the proper function of the Court of Appeal to engage in this business of correction of clerical errors in the computation of credits.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

Abstracts and Minutes, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000289

Posted on by Gary McCurdy

Error and/or relief

We conclude that section 654 did not apply here because the trial court granted defendant probation without imposing sentence, so we affirm the judgment. But we direct the trial court to correct the clerk’s minute order to reflect the oral pronouncement as to the jail probation condition and restitution fine and corresponding stayed probation revocation fine as $300 each.

First Holding:

There is an apparent discrepancy between the court’s oral pronouncement imposing a probation condition of 300 days in county jail and the clerk’s minute order splitting the 300 days between the two counts, showing 150 days under each count. The record of the oral pronouncement of the court controls over the clerk’s minute order. The court’s oral pronouncement was clear. It imposed a probation condition of 300 days in county jail. We order the clerk’s minute order corrected to reflect the court’s oral pronouncement of a probation condition of 300 days in county jail.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

People v. Mitchell (2001) 26 Cal.4th 181, 187-188

Second Holding:

Generally, section 654, which precludes multiple punishment for a single act, does not apply when a court grants a defendant probation. A grant of probation is neither punishment nor a criminal judgment. It is an act of grace and clemency designed to allow rehabilitation. No punishment is imposed. Section 654 does not apply where no punishment is imposed. This is so even if probation is conditioned on jail time. Here, because the trial court granted defendant probation without imposing a sentence, section 654 does not apply.

Authority:

PEN 654

People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240

People v. Wittig (1984) 158 Cal.App.3d 124, 126-127 137

People v. Prudholme (2023) 14 Cal.5th 961, 965

Third Holding:

The minute order conflicts with the trial court’s oral pronouncement, the latter which ordered only the mandatory minimum fines (here, $300), not the $1,000 fine included in the minutes. When there is a discrepancy between the court’s oral pronouncement and the clerk’s minute order or the abstract of judgment, the record of the oral pronouncement controls. We order the clerk’s minute order corrected to conform to the trial court’s oral pronouncement of the mandatory minimum restitution fine of $300 and the corresponding stayed $300 probation revocation fine.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2