Category Archives: Discretion

Discretion, Sentencing

Case 000535 and Case 000536

Posted on by Gary McCurdy

Error and/or relief

We vacate the conviction for involuntary manslaughter, as it is a lesser included offense of the murder that she was also convicted of in a separate count. Section 654 requires stay of either the murder count or the child abuse count, because they were based on the same act. We remand to the trial court for it to determine which of the two sentences should be stayed.

[Gary note: There were two defendants, and the opinions, though separate, were virtually material, so I have summarize both in this single summary]

First Holding:

We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

For Victim A’s death, the jury convicted the defendant of both second degree murder (count 1) and involuntary manslaughter (count 2). The parties agree, as do we, that, because substantial evidence supports the murder conviction, the involuntary manslaughter conviction must be vacated. A defendant cannot be convicted of both an offense and a necessarily lesser included offense based upon the commission of an identical act. In such a situation, the lesser included offense must be reversed. Involuntary manslaughter is a lesser included offense of murder. The defendant’s convictions were based on the same act. Accordingly, the conviction in count 2 must be vacated.

Authority:

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Munoz (2019) 31 Cal.App.5th 143, 153

Third Holding:

For the child abuse conviction in count 3 involving Victim A, the defendant received a sentence of four years in prison, which was to run concurrently to her indeterminate sentence for Victim A’s murder in count 1. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed. Because the same act supports the convictions in counts 1 and 3, section 654 prohibits multiple punishment and requires that execution of sentence be stayed on one of those counts.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Fourth Holding:

Under amended section 654, the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. At sentencing in this matter, the trial court imposed a concurrent four-year term on count 3. Although the court’s decision to run the felony child abuse term concurrently suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine in the first instance which sentence must be stayed under section 654.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Amelioration, Discretion, Jurisdiction, Sentencing

Case 000531

Posted on by Gary McCurdy

Error and/or relief

The defendant, whose original sentencing occurred prior to 1/1/2020, is eligible for full resentencing under section 1172.75 where his original sentence imposed sentence (whether or not stayed) on now-invalid prior prison term enhancements, even if later his sentence was modified on other grounds after 1-1-2020.

[GARY NOTE: The court, in this unpublished case, concluded that section 1172.75 applies to the original judgment, which was before 1/1/2020, and therefore the defendant was eligible despite any subsequent resentencing under section 1172.1. The decision rested on the Court of Appeals logic in interpreting the statutes, however, and did not otherwise cite any published case law. Since an unpublished decision cannot be cited as authority, the gold extracted in this summary does not specifically address the question reached by the court in this case.]

First Holding:

Section 1172.75 provides that 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 is legally invalid. It requires the court to vacate the entire sentence and hold a full resentencing hearing, applying any applicable ameliorative changes in the law since the original sentencing. 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. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Dixon (2025) 112 Cal.App.5th 236, 243

Second Holding:

Section 1172.1 authorizes the Secretary of the Department of Corrections and rehabilitations (CDCR) [as well as “the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, 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”] to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant.

The CDCR recommendation furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is an invitation to the court to exercise its equitable jurisdiction. The court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody. Whether recall on the invitation of the CDCR et al. or on its own motion, the new sentence, if any, cannot be greater than the initial sentence.

Authority:

PEN 1172.1

People v. McMurray (2022) 76 Cal.App.5th 1035, 1

Third Holding:

If the resentencing request is from the Secretary of CDCR, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General, there shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c) (an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv)).

Authority:

PEN 1172.1(b)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

Fourth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion. However, where the appeal from a resentencing order raises questions 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

People v. Braden (2023) 14 Cal.5th 791, 804 [the interpretation of a statute presents a question of law that this court reviews de novo]

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]

Discretion, Sentencing

Case 000505

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence, and we remand for the trial court to hold a new sentencing hearing, at which it shall consider whether to exercise its discretion under section 1385 to dismiss the one-year enhancement it imposed under section 12022(b)(1).

First Holding:

During the sentencing of the defendant for second degree murder in which it was found true that he used a knife, the court stated it had no discretion to dismiss the enhancement allegation. Section 1385 governs a trial court’s discretion to dismiss an enhancement. Specifically section 1385(c)(1) states that 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. In exercising its discretion, 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.

Under section 1385(a), 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.) One enumerated mitigating circumstance is that the current offense is connected to mental illness. The defendant identifies that circumstance as potentially applicable here in light of information developed during the mental competency proceedings in this matter.

Authority:

PEN 1385

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

Second Holding:

The record establishes the trial court was not aware of its discretion under section 1385 to dismiss the weapon enhancement. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is not aware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. Where the trial court was not aware of its discretion to dismiss a sentencing allegation under section 1385, it abuses its discretion. We accordingly conclude the trial court abused its discretion because it was not aware of its discretion to dismiss the weapon enhancement.

Authority:

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

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

Third Holding:

When a court has not exercised its informed discretion, remand is the default 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. Here, we find no indication in the record as to how the trial court would have exercised its discretion had it known it had the discretion to dismiss the enhancement. We will therefore remand for the trial court to exercise its discretion under section 1385 regarding the weapon enhancement imposed under section 12022(b)(1).

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Discretion, Sentencing, Standard of review

Case 000485

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in ordering interest on the restitution award to accrue from the date of the offense.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims” in an amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.

Authority:

PEN 1202.4(f)

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider in determining victim restitution. When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.

Authority:

People v. Phu (2009) 179 Cal.App.4th 280, 283, 284

People v. Pittman (2024) 99 Cal.App.5th 1252, 1258

Third Holding:

Section 1202.4(f)(3)(G) provides that a restitution order shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. Here, there was no evidence that the victim incurred losses as early as ordered by the court. For this reason, we reverse the portion of the trial court’s restitution order concerning interest accrual and remand for the court to select an appropriate date from which interest on the restitution award accrues.

Authority:

PEN 1202.4(f)(3)(G)