Monthly Archives: August 2026

Appellate Principles, Effective assistance of counsel, Fifth Amendment, Fines and fees, Sentencing

Case 000524

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error to increase the originally-imposed $300 restitution fine to $10,000.00. It was also error to fail to recalculate the defendant’s credit for time served.

First Holding:

Although defendant arguably has forfeited the claim of error because he did not object to the sentence below, we will reach the issue because he also contends his attorney was ineffective.

Authority:

People v. Daniels (2012) 208 Cal.App.4th 29, 31

Second Holding:

When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. Statutorily mandated restitution fines constitute punishment and there is no principled basis for excluding them from the rationale of Henderson. The restitution fine imposed pursuant to section 1202.4(b) cannot exceed the $300 originally imposed. Therefore, we remand the matter and direct the trial court to reduce the restitution fine to $300, as originally assessed.

Authority:

 

People v. Henderson (1963) 60 Cal.2d 482

People v. Jones (1994) 24 Cal.App.4th 1780, 1783, 1785

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Daniels (2012) 208 Cal.App.4th 29, 31-32

People v. Thompson (1998) 61 Cal.App.4th 1269, 1276 [court directed trial court to reduce increased section 1202.4 fine to amount originally assessed]

Third Holding:

A restitution fine under section 1202.4 constitutes punishment. It is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For felony convictions, the required fine is not less than $300 and not more than $10,000.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13

Fourth Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. As the trial court failed to recalculate the credit for time served, the matter must be remanded for the custody credits to be recalculated.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Abstracts and Minutes, Fines and fees

Case 000523

Posted on by Gary McCurdy

Error and/or relief

The minute order incorrectly states the court ordered defendant to pay various fines and fees, whereas the court actually struck all applicable fines and fees. It must be corrected.

Holding:

After defendant entered the plea agreement and the court placed him on probation, it ordered the applicable fines and fees stricken. The minute order from the plea hearing incorrectly reflects that the court imposed various fines and fees. Respondent agrees with defendant that the minute order should be corrected to show the fines and fees were stricken. This appears to be a clerical error, which we will direct the superior court clerk to correct.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 80

In re Candelario (1970) 3 Cal.3d

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000522

Posted on by Gary McCurdy

Error and/or relief

In the sentencing of the defendant on two separate cases, the court erred in believing that consecutive terms were mandatory.

First Holding:

When considering a trial court’s sentencing decision, we apply an abuse of discretion standard of review. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court cannot properly exercise its informed discretion if it is unaware of its discretionary authority at the time a decision is being made. A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Hilburn (2023) 93 Cal.App.5th 189, 205

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Panozo (2021) 59 Cal.App.5th 825, 837

People v. McDaniels (2018) 22 Cal.App.5th 420, 42

Second Holding:

Forfeiture does not apply to claims that the trial court misapprehended its sentencing discretion.

Authority:

People v. Panozo (2021) 59 Cal.App.5th 825, 840

Third Holding:

The defendant was convicted by jury of a robbery he committed in 2024. When he committed this offense, he was on probation for another robbery, for which he was convicted in 2021. At the preliminary hearing for the 2024 robbery, the court revoked his probation for the 2021 robbery. At sentencing on both robberies, the court sentenced the defendant to four years for the 2024 robbery, and a consecutive term of one year for the 2021 robbery. In making its order, the court expressed its belief that consecutive sentencing was required under Penal Code section 667.

A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

When a defendant is placed on probation and imposition of sentence is suspended, as in this defendant’s case, the defendant does not begin serving a sentence until a sentence is later imposed after revocation of probation and the defendant is delivered into custody for that offense. Thus when the court sentenced the defendant for the 2024 robbery, he was not already serving a sentence on the 2021 robbery case. This is not the same situation as in Gonzalez, where the defendant was already serving a sentence because he had been sentenced for violating his probation orders and he was still awaiting trial on the new offense.

Authority:

PEN 667(c)(8)

PEN 669(a)

People v. Rosbury (1997) 15 Cal.4th 206, 210–211

People v. Gonzalez (2019) 39 Cal.App.5th 115, 121

Fourth Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion. It is apparent from the court’s comments in the record that it did not intend to impose the maximum possible sentence, as it imposed the low term and struck a prior serious felony. The case should be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Fines and fees, Probation Parole PRCS, Sentencing

Case 000521

Posted on by Gary McCurdy

Error and/or relief

The court improperly imposed a domestic violence fee, because that only applies to those granted probation, which the defendant was not, as he was sentenced to prison.

First Holding:

The requirement to make a $500 domestic violence payment is not authorized by section 1203.097, because the trial court denied probation. The judgment is modified to strike the $500 domestic violence payment.

Authority:

PEN 1203.097

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000520

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the defendant was entitled to have the trial court examine whether recent amendments under AB 333 to gang criminal activity statutes affected his conviction for carrying a loaded firearm in a public place by an active participant in a criminal street gang. Remanded.

First Holding:

Resentencing under section 1172.75 for a person serving a sentence containing a now-invalid prior prison term enhancement requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. When the trial court recalled defendant’s sentence under section 1172.75, it was effectively vacated. Once defendant’s sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Defendant, therefore, regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for purposes of Estrada. Under Estrada, ameliorative amendments to criminal statutes apply to all cases not final on appeal absent contrary legislative intent.

Authority:

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

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s] sentence effectively vacated his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163, 177 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

In re Estrada (1965) 63 Cal.2d 740, 744–745

Second Holding:

Effective January 1, 2022,AB 333 made several changes to the criminal street gang laws.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be ‘more than reputational.

And finally, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada.

Authority:

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Clark (2024) 15 Cal.5th 743, 753

In re Estrada (1965) 63 Cal.2d 740

Third Holding:

In determining whether a judgment is final for Estrada purposes, the finality inquiry focuses on whether the criminal prosecution or proceeding as a whole is complete, i.e., when the last word of the judicial department with regard to a particular case or controversy has issued.

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It is presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. AB 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

Fourth Holding:

Because AB 333 applies retroactively to all nonfinal judgments under Estrada, and defendant’s judgment is nonfinal by virtue of section 1172.75, defendant was entitled to the ameliorative effects of AB 333 at resentencing. The jury’s findings on the gang allegations made more than a decade prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Based on this record, we cannot conclude that error was harmless. Therefore, we remand for the trial court to determine, in the first instance, any effect the amendments have on defendant’s conviction on count 5 of an active participant in a criminal street gang carrying a loaded firearm in a public place.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396-400

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207