Monthly Archives: August 2026

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

Error and/or relief

Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.

The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.

First Holding:

A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.

Authority:

PEN 1203.1b(a)

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322

Second Holding:

Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Third Holding:

A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

Fourth Holding:

A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

Fifth Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Sixth Holding:

A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to GPS monitoring.]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.”]

People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]

People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program.]

Seventh Holding:

A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.

Authority:

PEN 1203.2(b)(1)

PEN 1203.3

In re D.N. (2022) 14 Cal.5th 202, 211

People v. Olguin (2008) 45 Cal.4th 375, 382

People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000453

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates that the defendant was convicted under the Three Strikes law, and must be corrected.

Holding:

The clerk of the superior court is directed to prepare an amended abstract of judgment by unchecking the box that the defendant was sentenced under the Three Strikes law.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 000452

Posted on by Gary McCurdy

Error and/or relief

The court imposed the fines and fees without conducting an ability to pay hearing over trial counsel’s objection. While this appeal was pending, the Supreme Court settled the question of imposition of fines and fees with regard to the ability to pay. We strike the $370 in fines and fees.

First Holding:

A defendant may challenge the imposition of a punitive fine under the excessive fines provisions of the United States and California Constitutions. Equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing court operations and facilities assessments fees as ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 29-30

Second Holding:

On this record, it would not serve the interests of justice or judicial economy to require remand. Appellant has been incarcerated for most of his adult life. Given his current sentence (55 years to life), he will presumably be incarcerated for the rest of his life. Additionally, the probation report does not indicate he has any assets or property. The court has the authority to strike the fines and fees rather than remand the matter for a hearing on the defendant’s ability to pay.

Authority:

PC 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Abstracts and Minutes, Amelioration, Sentencing

Case 000451

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of resentencing relief pursuant to Penal Code section 1172.75. He contends, and the People agree, the resentencing court erroneously relied on a previously stricken enhancement for a sexually violent offense, as well as an unalleged prior conviction for a sexually violent offense in finding defendant ineligible for resentencing. The record establishes error. We therefore reverse and remand.

First Holding:

The trial court erroneously relied on prior felony convictions to determine that the defendant was not eligible for relief under section 1172.75, because those prior convictions had previously been stricken in the appeal from the original judgment, leaving no disqualifying prior convictions in place. Section 1172.75(a) invalidates any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code.

However, a stricken enhancement cannot be a sentence enhancement that was imposed under section 1172.75(a). As noted, this court previously struck the otherwise-disqualifying section 667.5(b) enhancement stemming from defendant’s 1981 conviction. As such, it may not serve as the basis for denying resentencing relief under section 1172.75.

Authority:

PEN 667.5(b)

People v. Green (2024) 104 Cal.App.5th 365, 370

People v. Tang (2025) 109 Cal.App.5th 1003, 1007

Second Holding:

More than 30 years ago, defendant was convicted of both a disqualifying felony and robbery. However, for purposes of the current case, the prosecution only alleged a prior prison term enhancement for the 1990 robbery, not the disqualifying felony. The allegation was found true and the enhancement for the prior prison term stemming from the robbery was imposed. Because the enhancement was for robbery, the section 667.5(b) enhancement that became part of defendant’s sentence was not imposed for his conviction of a disqualifying offense as required by the plain terms of section 1172.75. Because a one-year prior prison term enhancement was not alleged, proved, or imposed for the 1990 conviction of an otherwise-disqualifying offense, it may not be used to deny defendant resentencing relief pursuant to section 1172.75.

Authority:

People v. Green (2024) 104 Cal.App.5th 365, 371

Third Holding:

In the appeal from the original judgment more than a decade ago, this court ordered defendant’s judgment modified to strike 10 of his 15 prior prison term enhancements and ordered the abstract of judgment amended to reflect the change. An amended abstract of judgment filed after the conclusion of that appeal reflected just such a change.

During the resentencing proceedings in the superior court in 2025, the court also addressed a motion by defendant to vacate his remaining restitution fines. The court granted defendant’s request pursuant to section 1465.9(b) and ordered the abstract of judgment amended. A new abstract of judgment issued in July 2025 reflected the change to defendant’s restitution; however, it also listed eight of the 10 previously stricken prior prison term enhancements. This is a clerical error. The abstract of judgment should list imposition of five 1-year enhancements—one on each count—for defendant’s prior prison term served in connection with his med-2000s petty theft conviction.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time]

Amelioration, Duty of the court, Sentencing, Sixth Amendment

Case 000450

Posted on by Gary McCurdy

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

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

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

People v. Coddington (2023) 96 Cal.App.5th 562, 568 [same]

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]