Author Archives: Gary McCurdy

Elements of crime

Case 001017

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from his convictions of two counts of misdemeanor battery. Appellant contends, and respondent agrees, that both counts are based on the same act and both convictions cannot stand.

Holding:

An amended information charged appellant in count 1 with battery with serious bodily injury in violation of Penal Code section 243(d) and in count 3 with battery with injury on a peace officer in violation of section 243(c)(2). A jury found appellant not guilty of both counts, and guilty of the lesser included offense of misdemeanor battery (sec. 242) for both counts. The defendant’s single head-butt resulted in two convictions for misdemeanor battery. Only one conviction can stand.

A defendant may not be convicted of multiple counts for the same offense based on a single criminal act.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 994, fn. 8 [“we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Torres (2019) 39 Cal.App.5th 849, 858-859 [explaining that when a defendant is convicted of two of the same offenses based on the same act, the error cannot be corrected by simply staying the sentence on one count]

Elements of crime, Sentencing, Statutory interpretation

Case 001016

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to issue protective orders, because the defendant was not convicted of a qualifying offense, and the person for whose benefit order was issued was not a victim of the defendant’s crime.

First Holding:

Section 136.2(i)(1) provides authority for the imposition of postconviction protective orders where a defendant is convicted of a qualifying domestic violence offense.

Authority:

PEN 136.2(i)(1)

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

Domestic violence is abuse committed against, among other categories of victims, a person with whom the defendant had a dating relationship. Domestic violence is abuse perpetrated against (a) a spouse or former spouse[; (b) a cohabitant or former cohabitant; (c) a person with whom the respondent is having or has had a dating or engagement relationship; (d) a person with whom the respondent has had a child; (e) [a] child of a party; or (f) any other person related by consanguinity or affinity within the second degree.

“Abuse” is the intentional or reckless causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Section 136(3) defines “victim” as any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other statute or of the United States is being or has been perpetrated or attempted to be perpetrated.

Thus, a postconviction protective order under section 136.2(i)(1) is authorized if: (1) the defendant has been convicted of one (or more) of the statutorily enumerated crimes; and (2) the protected person qualifies as a victim of said crime(s).

Authority:

PEN 13700

FAM 6211

People v. Walts (2025) 112 Cal.App.5th 127, 139

People v. Lopez (2022) 75 Cal.App.5th 227, 237

Third Holding:

Courts do not have inherent authority to issue a criminal protective order absent a statute authorizing such an order.

Authority:

People v. Corrales (2020) 46 Cal.App.5th 283, 286-287

Fourth Holding:

The defendant was not convicted of a domestic violence or other offense that authorized the court to issue a protective order under section 136.2(i)(1). His conviction did not justify a protective order. Nor was the protected person a victim of his crime.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901 [where the defendant’s convictions are not domestic violence offenses, the court does not have statutory authority to impose a postconviction protective order, and it must be stricken]

People v. Pena (2025) 113 Cal.App.5th 640, 648 [the Legislature amended section 136.2(i)(1), in 2018 to specify that a victim is only a victim of the crime the defendant was convicted of committing]

People v. Walts (2025) 112 Cal.App.5th 127, 143 [if there is no reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted is being or has been perpetrated or attempted to be perpetrated against a particular person, that person is not a victim and may not seek, or be named as protected party by, a protective order under section 136.2(i)(1)]

Equal protection, Fines and fees, Sentencing

Case 001015

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to stay the court facilities assessment and a court operations assessment based on defendant’s inability to pay. We vacate those orders.

Holding:

If a defendant requests such consideration, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1).

Here, however, the trial court at resentencing purported to impose but stay the assessments based on inability to pay, rather than waive them.

Because there appears to be no basis to justify denying criminal defendants a waiver of certain ancillary costs when civil litigants may receive such a waiver, we will modify the judgment to strike the imposed but stayed court facilities assessment and court operations assessment.

Authority:

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

Abstracts and Minutes, Sentencing, Statutory interpretation

Case 001014

Posted on by Gary McCurdy

Error and/or relief

Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.

First Holding:

Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.

The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.

The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.

Authority:

PEN 2900.1

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33

Second Holding:

Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”

Authority:

PEN 2933.1

Third Holding:

The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.

Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.

If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

People v. Murphy (2001) 25 Cal.4th 136, 142

In re M.M. (2012) 54 Cal.4th 530, 536

In re DeLong (2001) 93 Cal.App.4th 562, 568

People v. Manzo (2012) 53 Cal.4th 880, 889

Fourth Holding:

Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”

We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.

Authority:

People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033

People v. Smith (2024) 100 Cal.App.5th 741, 760

In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

Fifth Holding:

Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.

Authority:

People v. Burke (1956) 47 Cal.2d 45

Sixth Holding:

The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Seventh Holding:

The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.

Authority:

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Abstracts and Minutes, Jurisdiction, Probation Parole PRCS, Sentencing

Case 001013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in revoking the defendant’s probation after the period of probation had expired, because it no longer had jurisdiction once the probation period expired.

First Holding:

A trial court, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years.

Revocation is a two-step process. First, when presented with probable cause of a violation, a court may summarily revoke supervision and issue a bench warrant for the defendant’s arrest.

Second, the defendant is entitled to a formal hearing at which the prosecution must prove the violation and a disposition may be made. If the violation is found true, the court may, among other options, terminate supervision and order incarceration in jail, or it may reinstate supervision and modify the conditions, such as by imposing a period of jail incarceration.

Authority:

PEN 1203.1(a)

People v. Braud (2020) 56 Cal.App.5th 962, 966

Second Holding:

The revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, while the trial court has the power to extend the probationary term, tolling at the summary revocation stage does not automatically extend the probationary period but rather preserves the court’s jurisdiction to proceed to the second step, a formal hearing to decide whether there has been a violation during the probation period, after the probation period has expired.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 504)

People v. Braud (2020) 56 Cal.App.5th 962, 968

Third Holding:

The defendant was placed on two years probation. The parties disagree on whether probation expired in April or had been extended to a late August date. Although a minute order of a hearing held on a date in late August stated that it was revoked on a specific date a few weeks before the hearing, the court never stated that probation was revoked at a hearing.

A trial court’s oral pronouncements control over a subsequently entered minute order. Moreover, the minutes from that earlier hearing do not say probation was revoked. There was no reporter at that earlier hearing. Thus, the record does not support the assertion that probation was revoked at that early August hearing.

Instead, the record does reflect that the court purported to revoke probation two months later, in October. But whether probation was set to expire in April (as the defendant claimed) or in August (as the prosecution claimed), both dates had passed before the October hearing.

As the probation expiration date had passed (whether in April or August), the court no longer had jurisdiction to decide whether the defendant had violated probation.

Authority:

People v. Sanchez (2019) 38 Cal.App.5th 907, 918–919

People v. Braud (2020) 56 Cal.App.5th 962, 968


(Gary note: I recognize that this summary is inartfully worded, a product of my attempt to anonymize the participants. During the defendant’s probation, it was revoked and reinstated a number of times. At some point–whether April or August–probation expired during a period when there was no order revoking probation, summary or otherwise. Had the court timely summarily revoked probation before its term expired, it would have had jurisdiction over the case even after the term expired. By not putting the probation into a “revocation” mode, probation simply terminated when the expiration date arrived. At that point, the court lost jurisdiction to conduct revocation proceedings.)

Plea bargains, Sentencing

Case 001012

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously composed the defendant’s eight-year prison sentence.

First Holding:

The parties agree that the trial court erred in imposing the defendant’s eight-year term as a three-year term under Vehicle Code section 10851, doubled pursuant to the Three Strikes law, plus a two-year enhancement pursuant to section 666.5. Section 666.5 is not an enhancement. It is an alternative sentencing scheme. The sentencing triad for section 666.5 is two, three, and four years.

Authority:

PEN 666.5

People v. Lee (2017) 16 Cal.App.5th 861, 869

Second Holding:

The parties and the trial court intended and agreed that the defendant would be sentenced to the upper term of four years pursuant to section 666.5, doubled to eight years pursuant to the Three Strikes law if he failed to comply with the conditions of the plea agreement. Because the court made a judicial error in rendering the judgment and not a clerical error, we remand the matter to the trial court to resentence the defendant pursuant to the plea agreement.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 63

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing, Standard of review

Case 001011

Posted on by Gary McCurdy

Error and/or relief

The court erred in ruling that the defendant was ineligible for resentencing under section 1172.75 because the abstract of judgment did not reflect any now-invalid prior prison term enhancements. The abstract of judgment was in error.

First Holding:

Before 2020, the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony. Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses.

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. 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 is legally invalid.

Authority:

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050, 1053-1054

Second Holding:

In section 1172.75(b), the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes such an enhancement. Section 1172.75(b) requires the California Department of Corrections and Rehabilitations to identify for the sentencing courts all persons currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(b) and (c)

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

People v. Garcia (2024) 101 Cal.App.5th 848, 855 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.]

Fourth Holding:

We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the court’s application of the law to the facts is arbitrary or capricious. However, where the appeal from a resentencing order raises a question of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856, 857

People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word imposed as used in 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affirmed (2026) 20 Cal.5th 57

Fifth Holding:

The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. In this instance, the prior convictions were never stricken, and thus should have been reflected in the abstract of judgment. The defendant was eligible for resentencing under section 1172.75.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.]

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

In resentencing the defendant, the court abused its discretion in not giving proper consideration to whether to strike prior strike convictions. Remanded for proper consideration.

First Holding:

Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.

In resentencing the defendant in the same manner as if they had not previously been sentenced, the resentencing court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense.

Authority:

PEN 1172.1

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

Section 1385(c)(2) further provides that, in exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Accordingly, if the court finds that dismissal of an enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances.

Authority:

PEN 1385

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

Third Holding:

A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 585

People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice]

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024,1029

Fifth Holding:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. In exercising its discretion, the court may give no weight whatsoever to factors extrinsic to the Three Strikes scheme.

Instead, preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. In considering these intrinsic factors the court must determine whether the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences.

Authority:

PEN 1385(a)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531

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

People v. Garcia (1999) 20 Cal.4th 490, 498–500

Sixth Holding:

Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.

A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion.

We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, the defendant’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety.

Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than the defendant’s.

(Gary note: I have left out the appellate court’s recitation of facts peculiar to this defendant and the facts in this case, but court determined that the lower court had not given proper consideration of those factors. It remanded for a proper consideration.)

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 378-379

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029

People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 [defendant’s three previous strikes were two robberies and assault with a knife]

Abstracts and Minutes

Case 001009

Posted on by Gary McCurdy

Error and/or relief

The trial court is ordered to amend the abstract of judgment to reflect that a concurrent term was imposed on count 2, that the stayed term on count 3 was a term of two years, and that Section 8, designating the “TOTAL TIME” imposed, is eight years.

Holding:

The abstract of judgment fails to properly reflect that the determinate term punishment for count 2 was ordered to be served concurrently with the indeterminate sentence, and it must be corrected.

(Gary note: The court cited no authority for its correction order, so I have listed some of several cases the court could have cited.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes

Case 001008

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not accurately reflect the sentence that was imposed, and must be corrected.

Holding:

The abstract of judgment reflects the a different term of imprisonment than was imposed by the court, and must be corrected.

(Gary note: The court cited no authority for its order to correct the abstract. I have listed some cases that affirm that the appellate court has the authority.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

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

Case 001006

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a new hearing on the defendant’s resentencing under section 1172.75, in light of new case law regarding examination of prior serious felonies and strikes depending on criminal gang activity. Further, the restitution fine must vacated, as it is more than 10 years old.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. The list of serious felonies includes any felony offense that would also constitute a felony violation of section 186.22. Section 186.22 defines substantive gang offenses and gang enhancements.

Authority:

PEN 667(e)

PEN 1170.12(c)

PEN 1192.7(c)(28)

PEN 667.5(c)

People v. Fletcher (2025) 18 Cal.5th 576, 582

Second Holding:

The Legislature enacted AB 333 (2021-2022 Reg. Sess.), which among other things, changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Fletcher held that prior convictions premised on section 186.22 must be examined under currently law in determining whether they qualify as prior serious felony convictions or strikes.

Authority:

AB 333

PEN 186.22

People v. Fletcher (2025) 18 Cal.5th 576, 585, 587

Third Holding:

When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. The Salazar court accordingly held that when 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 trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Though the Salazar decision is premised on the trial court’s scope of discretion being changed during pendency of appeal, whereas here the trial court’s discretion has remained the same but a material fact about defendant’s past record has been modified since the time of sentencing. We nevertheless find the test set forth in Salazar to be applicable here, because the Salazar court itself observed the similarity between the two scenarios: A court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424-425

Fourth Holding:

Retrial of the strike under the current law would be appropriate, should the prosecutor so choose.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Fifth Holding:

The restitution fine was imposed in 2011. Section 1465.9(d) has been added since then, to provide that any restitution fine is unenforceable and uncollectible upon the expiration of 10 years after date of imposition.

Authority:

PEN 1465.9