Monthly Archives: September 2026

Amelioration, Eighth Amendment, Juveniles, Probation Parole PRCS, Sentencing

Case 001031

Posted on by Gary McCurdy

Error and/or relief

A sentence of more than 72 years to life plus two life terms imposed in 1995 on a 16-year-old minor is the functional equivalent of life without the possibility of parole. The trial court erred in denying the defendant’s motion for resentencing under section 1170(d)(1).

If the court resentences, the court must then consider whether to transfer the case back to juvenile court for a transfer hearing to determine whether the matter should be retained under juvenile court jurisdiction or transferred back to adult court, applying Proposition 57.

First Holding:

Section 1170(d)(1) allows juvenile offenders to petition for recall and resentencing after 15 years of incarceration if they were sentenced to life without the possibility of parole (LWOP).

Authority:

PEN 1170(d)(1)

Second Holding:

A sentence of 72 years eight months to life, plus two life sentences is the functional equivalent of an LWOP sentence, and therefore, the defendant is eligible for resentencing under equal protection principles. As the two life sentences carry a minimum of seven years on each, the effective sentence in this matter is more than 86 years to life. Under that sentence, the defendant would not be released before he reached 102 years of age.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608

People v. Sorto (2024) 104 Cal.App.5th 435

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056

People v. Mendez (2010) 188 Cal.App.4th 47, 50, 68 [sentence of 84 years to life was the equivalent of LWOP and constituted cruel and unusual punishment]

People v. Franklin (2016) 63 Cal.4th 261, 273 [under sec. 3046, where two indeterminate sentences run consecutively, a defendant must serve the full minimum term of each before becoming eligible for parole]

Third Holding:

A petition under section 1170(d)(1) must include a statement describing the defendant’s remorse, work toward rehabilitation, and a statement that one of four qualifying circumstances is true.

The four qualifying circumstances under section 1170(d)(2), are:

(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.

(B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.

(C) The defendant committed the offense with at least one adult codefendant.

(D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

Authority:

PEN 1170(d)(2)

Fourth Holding:

Recall and resentencing entitles eligible defendants to the benefits of retroactive ameliorative changes to the law, such as Proposition 57, which eliminated the prosecution’s right to file charges for eligible crimes against a minor directly in adult court without a fitness or transfer hearing.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 449

People v. Montes (2021) 70 Cal.App.5th 35, 48-49 [ordering superior court to transfer case to juvenile court to hold hearing under Prop. 57 where court had recalled LWOP sentence under sec. 1170(d)(1) for a defendant who had committed crimes when he was 17 years old]

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304, 309 [Proposition 57 constituted an ameliorative change to the criminal law, and therefore, it applies retroactively to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.]

People v. Padilla (2022) 13 Cal.5th 152, 161-162 [once a superior court recalls a sentence, it becomes nonfinal, and Proposition 57 applies retroactively]

People v. Ramirez (2021) 71 Cal.App.5th 971, 996 [because sentence was vacated under (what is now section 1172.6), defendant’s sentence became nonfinal for purposes of Proposition 57]

Fifth Holding:

In Graham, the United States Supreme Court held that the Eighth Amendment bars the imposition of an LWOP sentence for a juvenile offender who did not commit a homicide.

In Miller, the United States Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders. In sentencing a juvenile homicide offender the trial court must have the ability to impose a sentence less than LWOP after taking into account youth-related factors and whether the offender may be rehabilitated.

Tha California Supreme Court in Caballero applied the holding in Graham to a 110 years-to-life sentence, describing the sentence as a term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.

Authority:

Graham v. Florida (2010) 560 U.S. 48, 82

Miller v. Alabama, 567 U.S. 460, 465, 477

People v. Caballero (2012) 55 Cal.4th 262, 265, 267-268

Sixth Holding:

In Contreras, the California Supreme Court considered whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender’s natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.

The Contreras court concluded that sentences of 50 years or more to life for juvenile nonhomicide offenders were the functional equivalent of LWOP sentences for purposes of the Eighth Amendment because, as contemplated by Graham:

(1) confinement with no possibility of release until age 66 or age 74 seems unlikely to allow for reintegration into society;

(2) a juvenile offender who has no chance to leave prison for 50 years has little incentive to become a responsible individual;

(3) a 50-years-to-life sentence, though less harsh than LWOP, is still an especially harsh punishment for a juvenile, who will on average serve more years and a greater percentage of his life in prison than an adult offender;

(4) Graham’s observation that juveniles have limited ability to consider consequences when making decisions applies to a sentence of 50 years to life just as it does to a sentence of LWOP; and

(5) a judgment that a juvenile offender will be incorrigible for the next 50 years is no less questionable than a judgment that the juvenile offender will be incorrigible forever.

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 356, 364

Seventh Holding:

By leaving section 1170(d)(1) in place after enacting section 3051 (which sets up a scheme of parole eligibility consideration for juvenile and young offenders), the Legislature has signaled its preference for section 1170(d)(1) to persist rather than to be stricken, thereby ensuring section 1170(d)(1) provides relief in addition to the relief provided by section 3051.

Authority:

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1063

Sentencing

Case 001030

Posted on by Gary McCurdy

Error and/or relief

The trial court was not authorized to include a nonvictim step-granddaughter as a protected person in a protective order issued under section 136.2(i)(1).

Holding:

Section 136.2(i)(1) provides that When a criminal defendant has been convicted of a crime that requires the defendant to register pursuant to section 290(c), the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. To be included as a protected person under section 136.2(i)(1), the person must be a victim of one of the registrable offenses of which the defendant was convicted. The jury did not convict the defendant of any charges against [Person A] for whose benefit the protective order was issued. The trial court therefore was not authorized to include [Person A] as a protected person in the protective order issued under section 136.2(i)(1).

Authority:

PEN 136.2

People v. Walts (2025) 112 Cal.App.5th 127, 142-143

Amelioration, Elements of crime, Retroactivity, Sentencing, Standard of review

Case 001029

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have granted the defendant’s request to retry his case to the extent that he was prosecuted under the criminal gang statutes in effect prior to their amendent by AB 333.

The defendant’s conviction for active participation in a street gang and the true findings on the gang enhancements on counts 2 and 3 are reversed. The People may seek to try the gang charge and enhancements under amended section 186.22. Following any trial, or if none occurs, the trial court will conduct a full resentencing under section 1172.75. Judgment is otherwise affirmed.

First Holding:

AB 333 modified the law on gang crimes and enhancements in several ways. It amended section 186.22 to increase the evidentiary burden to prove the crime of active participation in a criminal street gang and a gang enhancement by requiring the charged offense and any predicate offenses benefit the gang in a way that is more than reputational.

It amended the definition of a pattern of criminal gang activity—an element of proving the crime of active participation as well as a gang enhancement—to mean two or more predicate offenses, the last of which occurred within three years of the date the current offense is alleged to have been committed.

It also precluded using the currently charged offense to establish a pattern. Proving predicate offenses under section 186.22(b) now requires showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.

Authority:

AB 333

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

The jury convicted the defendant under the prior version of section 186.22. With the relevant aspects of AB 333 applying retroactively, this disconnect with the law as it has since been amended constitutes error affecting defendant’s conviction for active participation in a criminal street gang and the true findings as to the gang enhancements.

Under Chapman, vacating the jury’s finding is required unless it appears beyond a reasonable doubt that the finding would have been the same’ under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 715

In re A.M. (2024) 102 Cal.App.5th 557, 570

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

People v. Lewis (2006) 139 Cal.App.4th 874, 887

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

Third Holding:

We cannot say the jury would have found appellant guilty of active participation in a criminal street gang, or found true the special allegations, beyond a reasonable doubt under the new law based on the record. The evidence provides little information from which the jury could infer the predicate offenses benefitted a gang in a way that was more than reputational, much less connect the offenses to the organizational structure, primary activities, or common goals and principles of the gang.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 454 [absence of evidence how predicate offenses actually benefitted the gang cannot preclude finding that the benefit was merely reputational


Fourth Holding:
The defendant’s remaining contentions need not be addressed by this court, as he will be able to address his concerns in the trial court upon full resentencing. We decline to advise the trial court about its future application of the sentencing laws.

Authority:
People v. Slayton (2001) 26 Cal.4th 1076, 1084 [As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.]

Sentencing, Sixth Amendment, Standard of review

Case 001028

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating facts that were not stipulated to or submitted to a jury for proof beyond a reasonable doubt. Remanded for a full resentencing.

First Holding:

Effective January 1, 2022, SB 567 amended Penal Code section 1170(b)(2) to provide that, when a statute specifies three possible terms of imprisonment, the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by circumstances in aggravation of the crime and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury at trial.

Authority:

PEN 1170(b)(2)

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 70

Second Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086-1087

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

Third Holding:

The determination that a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. The defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness before the court could rely on this aggravating fact to find justification for an upper term sentence.

Applying the Chapman standard of review, we conclude that failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1085

People v. Lynch (2024) 16 Cal.5th 730, 776 [Because we cannot find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, the defendant’s sentence must be reversed]

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087