Monthly Archives: August 2026

Duty of the court, Sentencing

Case 000640

Posted on by Gary McCurdy

Error and/or relief

The court erred by staying the sentence on the vandalism and first degree residential burglary counts without first imposing a sentence, and we therefore remand to the court to impose a sentence on these counts.

First Holding:

When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence and to stay the execution of the duplicative sentence. The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.

This procedure ensures that the defendant will not receive a windfall of freedom from penal sanction if the conviction on which the sentence has not been stayed is overturned. Thus, it is improper to impose no sentence or to stay imposition of the sentence. Under section 654, a court’s failure to impose a sentence before staying it results in an unauthorized absence of sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 380

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

Sentencing

Case 000639

Posted on by Gary McCurdy

Error and/or relief

The court ordered restitution to the California Victim Compensation Board pursuant to section 1202.4(f)(4)(B) over the hearsay objection by the defense. Such orders must be based on the type of evidence specified in the code section, which did not occur here. The order is vacated and the matter is remanded for the court to hold a new hearing on restitution.

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. Section 1202.4 does not, by its terms, require any particular kind of proof.

However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property.” a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.

Authority:

PEN 1202.4

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320

Second Holding:

However, section 1202.4(f)(4) includes special provisions that are applicable when, as here, state funds are used to provide assistance to or on behalf of a victim. Section 1202.4(f)(4)(B) provides that the amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation.

Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

Here, the prosecution submitted neither certified copies of bills submitted to the California Victim Compensation Board nor any declaration signed under penalty of perjury by any custodian of records showing the Board paid the bills as required by section 1202.4(f)(4)(B). Thus, it was error to impose restitution on the evidence presented over objection.

Authority:

PEN 1202.4(f)(4)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Jurisdiction, Probation Parole PRCS, Sentencing

Case 000638

Posted on by Gary McCurdy

Error and/or relief

Though the trial court had summarily revoked probation prior to its expiration, for deserting probation, the trial court lacked the authority to find that the defendant violated probation based on his arrest for an offense that allegedly occurred in 2024, after his probation period expired in 2023. That matter is remanded for the court to determine whether there were grounds for revocation based on conduct occurring before probation expired.

Holding:

Summary revocation of probation preserves the trial court’s authority to adjudicate a claim that the defendant violated a condition of probation during the probationary period. A trial court can find a violation of probation and then reinstate and extend the terms of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 515-516

Sentencing, Sixth Amendment

Case 000637

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the aggravating factors true and imposing an upper term sentence without a jury finding on these factors.

First Holding:

Before the jury rendered its verdict, the defendant waived his right to a jury trial on the allegation of a prior strike conviction, but he declined to waive a jury trial on the rule 4.421 aggravating factor allegations. Nevertheless, the trial court stated it would conduct a court trial on the aggravating factor allegations relating to the defendant’s prior convictions increasing in seriousness and his prior prison term because it believed these aggravating factors were not subject to the jury’s consideration.

No aggravating factors were submitted to the jury. The court found true the aggravating factors that the defendant had prior convictions that are numerous and of increasing seriousness. This was error. A defendant is constitutionally entitled to a jury finding as to the increasing seriousness of a defendant’s prior convictions. This is because the inquiry requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness, i.e., something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Second Holding:

The Sixth Amendment guarantees the right to a jury trial on any fact that exposes a defendant to a greater potential sentence. Under California’s triad sentencing scheme, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term.

Accordingly, the Sixth Amendment right to a jury trial extends to any aggravating facts justifying an upper term sentence under section 1170(b)(2). If a trial court relies on unproven aggravating facts to impose an upper term sentence, and the defendant has not waived his right to a jury trial or stipulated to the aggravating facts, this is constitutional error.

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lynch (2024) 16 Cal.5th 730, 760, 768

Third Holding:

Our review is de novo.

Authority:

In re Taylor (2015) 60 Cal.4th 1019, 1035

People v. Frazier (2020) 55 Cal.App.5th 858, 864

Fourth Holding:

If constitutional error occurred, we assess prejudice under Chapman, which requires us to find prejudice unless we can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

Discretion, Sentencing

Case 000636

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded to the lower court following the defendant’s first appeal in this case so that it could exercise its discretion to strike the vicarious gun use enhancements. On resentencing following the defendant’s first appeal in this case, the trial court imposed enhancements for the personal use of a firearm (sec. 12022.53(b), in lieu of the vicarious liability enhancements found true by the jury under subdivisions (d) and (e)(1) of section 12022.53.

The personal use of a firearm enhancements must be vacated because there was no jury finding that the defendant had personally used a firearm during the offense. The vicarious enhancement must be reimposed, and the matter should be remanded back to the trial court so that it may exercise its discretion to strike those enhancements.

First Holding:

A trial court has discretion to strike a section 12022.53(d) firearm enhancement and impose a lesser uncharged enhancement under subdivisions (b) or (c). A trial court is not categorically prohibited from imposing an uncharged, lesser-included enhancement when the prosecution has alleged the greater enhancement and the facts supporting the lesser enhancement have been alleged and found true.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

Second Holding:

In Arellano, our Supreme Court held that a trial court resentencing a petitioner under section 1172.6 lacked authority to impose a firearm enhancement that had never been admitted or found true by a trier of fact. The enhancement had been dismissed as part of a negotiated disposition, and the trial court relied on police reports and other hearsay summaries to conclude that the defendant was armed.

The court rejected this approach and explained that resentencing under section 1172.6 is limited to the target offense or underlying felony. A similar defect occurred here. The jury never found that the defendant personally used a firearm. Instead, the jury returned true findings only under section 12022.53, subdivisions (d) and (e)(1), which required proof that a principal discharged a firearm during a gang-related offense, causing great bodily injury or death.

As in Arellano, the trial court later relied on its own factual findings from a collateral proceeding (a separate hearing on the defendant’s petition for resentencing under section 1172.6) to conclude that the defendant personally used a firearm during the offense. The trial court’s finding in a collateral proceeding was not sufficient to support imposition of the enhancement.

The matter is remanded for resentencing, during which the court shall exercise its discretion under section 1385 and Tirado to determine whether to strike or dismiss the lawfully adjudicated enhancements.

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 464-465