Category Archives: Discretion

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Standard of review

Case 001115

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 163

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Tran (2022) 13 Cal.5th 1169, 1206‒1207

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware 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.

In such circumstances, we have held that 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.

Authority:

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

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

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

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

Discretion, Duty of the court, Juveniles, Sentencing, Standard of review

Case 001112

Posted on by Gary McCurdy

Error and/or relief

It was error for the juvenile court to order the minor to pay restitution to the victim at the rate of (a specific dollar amount was named) per month, where the court had not ordered an amount of restitution that was owed, and had not declared that the amount could not be determined at the present time.

Remanded to the juvenile court. For the purposes of making an order regarding the amount of restitution payable by the minor, the court needs to determine what the amount of loss is, or if, instead, the loss cannot be ascertained at the time of disposition.

First Holding:

Welfare and Institutions Code section 730.6(a)(2) provides that upon a minor being found to be a person described in section 602, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, restitution to the victim or victims, if any, in accordance with subdivision (b).

Authority:

WIC 730.6(a)(2)

Second Holding:

Section 730.6(b)(1) provides that restitution to the victim, who incurs an economic loss as a result of the minor’s conduct, shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.

Authority:

WIC 730.6(b)(2)

Third Holding:

Because the statute authorizes the restitution amount to be determined at any time during the term of the commitment or probation, restitution orders may be made after the disposition order, even years later.

Authority:

In re A.R. (2022) 78 Cal.App.5th 184, 187-188 [court affirmed 2021 restitution order where disposition order was made in 2016]

Fourth Holding:

Restitution in a juvenile wardship case may be ordered either pursuant to section 730.6, or alternatively as a condition of probation.

Authority:

WIC 730(a)(1)

In re T.C. (2009) 173 Cal.App.4th 837, 844-845 [holding that section 730.6 specifies when restitution must be imposed, and section 730 states when restitution may be imposed as a condition of probation]

Fifth Holding:

Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. The court abuses its discretion when it acts contrary to law or fails to use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.

Authority:

In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016

Sixth Holding:

The record should be harmonized if possible, including consideration of the probation report. However, we do not believe it is possible in this instance to do so.

(Gary note: The appellate court noted that the probation report’s observations and recommendations were inconsistent because of the lack of determination of the amount of restitution.)

Because of inconsistencies in the probation report, we cannot assume that the court incorporated its recommendations. We must remand to the juvenile court to make the necessary findings.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

In re P.O. (2016) 246 Cal.App.4th 288, 292 fn. 4 [where the probation conditions in question only appear in a probation department form and nowhere else in the record, the reviewing court would nevertheless assume that these conditions were in fact imposed]

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

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

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

Case 001108

Posted on by Gary McCurdy

Error and/or relief

The record is ambiguous whether the trial court misunderstood its discretion to dismiss or strike an enhancement pursuant to Penal Code section 1385. Accordingly, we vacate the sentence and remand for resentencing.

First Holding:

Section 1385 governs a trial court’s discretion to dismiss various elements of an action or sentence. Under section 1385(a), the trial court may in furtherance of justice, order an action to be dismissed. This authority includes the power to dismiss or strike a sentencing enhancement.

Section 1385(b)(1) states that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. In other words, striking an enhancement is different from striking the punishment for the enhancement.

Authority:

PEN 1385

People v. Thomas (1992) 4 Cal.4th 206, 209

People v. Tang (2025) 109 Cal.App.5th 1003, 1010

Second Holding:

Prior to 2022, section 1385 did not provide direction as to how courts should exercise that discretion” to dismiss or strike enhancements. Effective January 1, 2022, SB 81 amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice.

SB 81 added subdivision (c) to section 1385, which now provides, in part:

(1) 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.

(2) 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 enumerated mitigating circumstances 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.

As relevant here, the enumerated mitigating circumstances include that the current offense is connected to mental illness and the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385(c)(2)(A) through (I) [a list of nine mitigating circumstances to be given great weight)

People v. Anderson (2023) 88 Cal.App.5th 233, 238

People v. Dain (2025) 115 Cal.App.5th 235, 246

Third Holding:

Under section 1385(c), 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.

That is, 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. If a trial court dismisses an enhancement pursuant to section 1385(c), then both the enhancement and its punishment must be dismissed.

Authority:

PEN 1385(c)

Cal. Rules of Court, rule 4.428(c)(3)

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

Fourth Holding:

We review a court’s sentencing choices for abuse of discretion. A defendant is entitled to a sentencing decision made in the exercise of informed discretion. We presume the court knows and applies the applicable law, absent evidence to the contrary. Where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion. Additionally, a record that is, at best, ambiguous about whether the court understood its sentencing discretion warrants remand.

(Gary note: The opinion then discusses how it concludes that the record is ambiguous on whether the court understood the scope of it discretion.)

Authority:

People v. Nielsen (2026) 119 Cal.App.5th 816, 823

People v. Fuhrman (1997) 16 Cal.4th 930, 944

People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [Remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.]

People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853

Fifth Holding:

The proper remedy is a remand for resentencing. Remand would be unnecessary if the record clearly indicated that the trial court would have reached the same conclusion even if it had been aware of its discretion. But we cannot conclude that the record here so clearly indicates such a result. That is, the record does not demonstrate with unusual clarity that remand would be an idle act.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944

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

People v. Flores (2020) 9 Cal.5th 371, 432

Sixth Holding:

The presence of a mitigating circumstance enumerated in section 1385(c)(2) does not dictate that an enhancement should be dismissed. Instead, the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement.

This means that, absent a danger to 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, 1033

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Seventh Holding:

The defendant further argues that the court erred in limiting his conduct credit to 15% under section 2933.1 We reject the People’s contention that the defendant forfeited his claim of conduct credit error by failing to object below.

To the extent his claim could be forfeited, we would exercise our discretion to consider it because it involves a pure question of law presented by undisputed facts and to forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. However, given our disposition, we do not reach the merits of the defendant’s challenge to his conduct credit award.

Authority:

People v. Hines (1997) 15 Cal.4th 997, 106

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review, Statutory interpretation

Case 001102

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it found the defendant unsuitable for Proposition 36 rehabilitation when it had not ordered and considered an evaluation by a drug addiction expert as required by Penal Code section 11395,(d)(1)(B).

First Holding:

Section 11395, known as the “Treatment-Mandated Felony Act,” was enacted as part of Proposition 36, which was approved by voters in November 2024. The statute gives repeat hard drug possession offenders the option of participating in drug and mental health treatment.

The individual must plead guilty or no contest to again possessing a hard drug, admit the alleged prior qualifying convictions, waive time for sentencing or judgment, and agree to participate in treatment.

If he or she successfully completes treatment, the defendant’s plea shall not constitute a conviction for any purpose. Such individuals are not to be sentenced to jail or prison unless a court determines that the person is not eligible or suitable for treatment.

Authority:

HSC 11395

Second Holding:

The statute further states that, upon or subsequent to arraignment for a violation of the section, and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The evaluation may be based on an interview of the defendant or others with relevant knowledge, and can include “medical records, criminal history, prior treatment history, and records pertaining to the current offense. The expert shall submit a report of the evaluation to the court and the parties.

Authority:

HSC 11395(d)(1)(B)

Third Holding:

We review de novo the trial court’s interpretation of the statute as allowing it to find defendant unsuitable for treatment without first obtaining the drug addiction expert report. Our task is to determine the electorate’s intent so as to effectuate the law’s purpose. We turn first to the language of the provision, giving the words their ordinary meaning.

We construe the language in the context of the statute as a whole and the overall statutory scheme in light of the electorate’s intent. If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the electorate’s intent is unnecessary.

Authority:

People v. Fouse (2024) 98 Cal.App.5th 1131, 1145

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901 [a reviewing court applies the same principles that govern statutory construction when interpreting a voter initiative]

Smith v. Superior Court (2006) 39 Cal.4th 77, 83

Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919

Fourth Holding:

Given section 11395’s clear language, we need not look beyond the statute itself to discern the electorate’s intent. As the statute makes clear, immediately upon or after arraignment for violating the statute, and either at the request or with the consent of the defendant or their attorney, the trial court “shall” order a drug addiction expert evaluation, and that report “shall” be submitted to the court and the parties. While the trial court has the discretion ultimately to decide that a defendant is unsuitable for treatment once the court considers the drug addiction expert’s evaluation, the expert’s evaluation must come first.

The trial court abused its discretion when it decided, notwithstanding the statutory provisions, that defendant was unsuitable for treatment before obtaining the necessary report.

Authority:

HSC 11395(d)(1)(B)