Error and/or relief
We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.
First Holding:
Under California’s determinate sentencing law as it currently stands, excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term and 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.
The violation is prejudicial unless an appellate court 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, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.
Authority:
People v. Lynch (2024) 16 Cal.5th 730, 757
Chapman v. California (1967) 386 U.S. 18
Second Holding:
A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.
Authority:
People v. Scott (2015) 61 Cal.4th 363, 406
Third Holding:
Strong policy reasons support this forfeiture rule. It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal
Authority:
People v. Stowell (2003) 31 Cal.4th 1107, 1114
People v. Salazar (2016) 63 Cal.4th 214, 239–240
People v. French (2008) 43 Cal.4th 36, 46
Fourth Holding:
Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.
Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.
Authority:
In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7
People v. Salazar (2023) 15 Cal.5th 416, 431–432
People v. Stamps (2020) 9 Cal.5th 685, 698–699
People v. Perez (2020) 9 Cal.5th 1, 7–8
People v. Brooks (2017) 3 Cal.5th 1, 92
People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]
Fifth Holding:
The restitution fine imposed in 2002 must be vacated under section 1465.9(d), which provides that 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(d)
People v. Greeley (2021) 70 Cal.App.5th 609, 626–627
Sixth 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.
We remand for the court to determine the appropriate credit for time served.
Authority:
PEN 2900.1
PEN 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 29
People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]
(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.
(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)
People v. Sek (2022) 74 Cal.App.5th 657, 673