Category Archives: Discretion

Discretion, Sentencing, Standard of review

Case: 000443

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering restitution in the amount of the full retail price of sunglasses that were returned to the victim, a retail store, by the police soon after the theft.

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 established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Restitution 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, but not limited to, full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. A victim may also seek lost profits.

Authority:

PEN 1202.4(f)

Second Holding:

A prima facie case for restitution can be made based on a victim’s testimony or other claim or statement of the amount of economic loss. Once a prima facie showing of loss has been made, the burden shifts to defendant to demonstrate that the amount of the loss is other than that claimed by the victim.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

Third Holding:

We review restitution orders for abuse of discretion. Where the specific issue is whether the court’s factual findings support restitution, we review those findings for substantial evidence.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

People v. Hume (2011) 196 Cal.App.4th 990, 995

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 373

Fourth Holding:

Ordering a defendant to pay retail value is justified when a retailer shows it lost the opportunity to sell the stolen goods to customers at that price — in other words, that it lost profits because of the thefts.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1178 [retail value of recovered stolen property was not an appropriate measure of restitution when the prosecutor presented no evidence that the victim retailer lost any profits as a result of the theft]

Fifth Holding:

Had the victim been a person who purchased the sunglasses at a store for the retail price, the retail price may have been the accurate measure of damages.

But the victim retailer did not seek lost profits on its restitution request form or introduce evidence at the hearing supporting such a claim. The trial court, in fact, ordered defense counsel to refrain from examining the store manager about the store’s sales volume after the prosecutor objected on relevancy grounds. The restitution award was therefore limited to the replacement cost of like property.

Using retail value as the sole basis to calculate restitution, based on this record, resulted in a windfall to the victim retailer.

Authority:

PEN 1202.4(f)(3)(A)

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall]

People v. Valle (2023) 93 Cal.App.5th 1329, 1333 [awarding purchase price of stolen cell phone that was returned to victim was error when defendant elicited testimony the victim hoped to use or sell the phone]

Discretion, Sentencing

Case: 000441

Posted on by Gary McCurdy

Error and/or relief

The gang conviction in count 6 is based on the same felonious conduct that comprises the murder conviction in count 1. Accordingly, the trial court was required to stay execution of one of these sentences. We vacate the defendant’s sentence and remand for resentencing. The trial court shall exercise its discretion under section 654 to determine which of the sentences for counts 1 and 6 must be stayed.

First Holding:

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.

Authority:

PEN 654(a)

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

Second Holding:

Under amended section 654 (AB 518 (2021–2022 Reg. Sess.)) (Stats. 2021, ch. 441), 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 one. Here, although the lower court’s decision to run the sentence in count 6 concurrently strongly 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 which sentence must be stayed.

Authority:

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

Discretion, Sentencing, Standard of review

Case: 000434

Posted on by Gary McCurdy

Error and/or relief

At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.

Section 1172.75(d)(3) provides that the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.

We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]

Third Holding:

Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.

Authority:

PEN 1050

Discretion, Sentencing

Case: 000429

Posted on by Gary McCurdy

Error and/or relief

An insurer is not a “direct victim” eligible for restitution under section 1202.4

First Holding:

We review a restitution order for abuse of discretion.

Authority:

People v. Percelle (2005) 126 Cal.App.4th 164, 179

Second 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 established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. Victim includes a corporation or any other legal or commercial entity when that entity is a direct victim of a crime. Thus, only the direct victim of a crime is entitled to restitution from the perpetrator of the offense.

Authority:

PEN 1202.4(f)

People v. Duong (2010) 180 Cal.App.4th 1533, 1537

Third Holding:

Direct victims include only the real and immediate objects of the defendant’s offenses Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders do not reasonably fit within this definition. As a result, restitution may not be awarded to insurers that partially reimbursed the direct victims for their losses, and trial courts may not divide the full amount of restitution between the victims and their insurers.

Authority:

People v. Birkett (1999) 21 Cal.4th 226, 233

Fourth Holding:

Accordingly, the trial court abused its discretion when it awarded restitution to the insurer. Instead, the court should have awarded the full restitution amount, including any amount awarded to the insurer, to the water district, which was the direct victim of the defendant’s crime, notwithstanding any reimbursement it already received from the insurer.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1537[a restitution order resting upon a demonstrable error of law constitutes an abuse of the court’s discretion]

People v. Hove (1999) 76 Cal.App.4th 1266, 1272 [insurance payments to the victim do not allow the defendant to escape responsibility for the losses he caused]

Fifth Holding:

Because the defendant does not contest the amount of restitution or the water district’s entitlement to that amount on appeal, we vacate the insurer restitution order and remand the matter so the court can order full restitution to the correct victim under section 1202.4.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1540 [remanding so the trial court can order restitution to the victim for the amount that the hospital will accept as full payment for the medical services the victim received at the hospital]

Discretion, Sentencing

Case: 000423

Posted on by Gary McCurdy

Error and/or relief

The minor appeals from the juvenile court’s order denying his petition for termination from the sex offender registry. He argues the prosecution failed to meet its burden of proving community safety would be significantly enhanced by requiring his continued registration and the juvenile court abused its discretion in finding otherwise. We agree and reverse the court’s order.

First Holding:

Penal Code section 290.008 sets forth the sex offender registration requirements for juvenile offenders. It requires registration as outlined in the section, unless the duty to register is terminated under section 290.5 or as otherwise provided by law. It provides for tiered periods of registration. A tier one juvenile offender is subject to registration for a minimum of five years; a tier two juvenile offender is subject to registration for a minimum of 10 years.

Authority:

PEN 290.008

Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 380

Second Holding:

It also provides procedures for juvenile offenders to petition the juvenile court to terminate their registration requirement at the expiration of their mandated minimum registration period, pursuant to section 290.5. Section 290.5 provides the procedures for adult offenders to terminate their registration requirement; the procedures are, therefore, the same, and the process begins by filing a petition for termination and serving it on the district attorney. Upon receiving a petition, the district attorney may request a hearing and present evidence regarding whether community safety would be significantly enhanced by requiring continued registration.

Authority:

PEN 290.008

PEN 290.5

Third Holding:

Section 290.5 sets forth seven factors for the court to consider when ruling on the petition. The court may base its determination on declarations, affidavits, police reports, or any other evidence submitted by the parties that is reliable, material, and relevant. If the court denies the petition, it shall set the time period after which the person can petition again for termination, which shall be at least one year from the date of the denial, but not to exceed five years.

Authority:

PEN 290.5

Fourth Holding:

When the prosecution requests a hearing on a petition, it is its burden to produce evidence and to show that requiring continued registration will appreciably increase society’s safety because the defendant is currently likely to reoffend. The trial court’s task when ruling on a petition is to assess whether the prosecution has carried its burden.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fifth Holding:

We evaluate a trial court’s decision whether to grant or deny a petition for removal from the sex offender registry for an abuse of discretion, reviewing any subsidiary factual findings based on disputed facts for substantial evidence and any subsidiary legal findings—including questions of statutory construction—de novo. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Franco (2024) 99 Cal.App.5th 184, 192

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

Sixth Holding:

The defendant committed the offenses 20 years earlier when he was only 14. Since then, he had no convictions, albeit a few arrests, the most recent involving being drunk in public. Consistent with the legislation’s purpose to cull from the registration rolls low-risk offenders so that resources could be concentrated on high-risk ones (Sen. 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. Sess.) as amended Sept. 8, 2017, pp. 12-13), it was incumbent upon the prosecution to present reasonable, credible, and solid evidence establishing a current risk of reoffense. It did not. Without evidence establishing such risk, the juvenile court abused its discretion in determining that community safety would be significantly enhanced by continued registration. Accordingly, the order of the juvenile court must be reversed.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433, 435