Category Archives: Discretion

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, 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.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. 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.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

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

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081, fn. 5

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]

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

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Discretion, Duty of the court, Pleading, Probation Parole PRCS, Sentencing, Standard of review

Case 001023

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s motion filed under Franklin and Penal Code section 1203.01 for a hearing to set forth youth-related evidence for consideration at future parole hearings.

We conclude that the trial court erred by denying the defendant’s motion absent evidence that the defendant had past opportunities to present youth-related evidence and absent information regarding the substance of the evidence that the defendant intended to present.

We decline to issue an order that the trial court grant the request for a Franklin hearing. We simply direct the court to hold a proper hearing on the motion to determine whether a Franklin hearing is warranted.

First Holding:

Section 3051(a)(1) provides for a youth offender parole hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of his or her controlling offense.

Section 4801(c) provides that, when a prisoner committed his or her controlling offense, as defined in section 3051(a), when he or she was 25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

Authority:

PEN 3051

PEN 4801(c)

Second Holding:

In Franklin, the Supreme Court held a defendant who did not have an opportunity to make a record of mitigating youth-related factors relevant to a later youth offender parole hearing should have an opportunity to make a record on remand.

The court explained that sections 3051 and 4801 contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. Assembling such statements about the individual before the crime is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.

The Supreme Court remanded the matter to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, and if not, to allow the defendant to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 283-284

Third Holding:

In Cook, the Supreme Court held that a juvenile offender with a final judgment could move for a postjudgment proceeding under section 1203.01, to present evidence of youth-related factors. The Cook court reasoned that recognizing the court’s authority under section 1203.01 to gather youth offender evidence effectuates sections 3051 and 4801.

For inmates who seek to preserve evidence following a final judgment, the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision that establishes the inmate’s entitlement to a youth offender parole hearing and indicates when such hearing is anticipated to take place, or if one or more hearings have already occurred.

Consistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Neither the passage of significant time, nor the fact that the defendant has had prior parole hearings is a bar to the court granting a Franklin hearing. The Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades-old convictions.

Authority:

PEN 1203.1

In re Cook (2019) 7 Cal.5th 439, 453, 458-459

People v. Benzler (2021) 72 Cal.App.5th 743, 751

Fourth Holding:

We review the trial court’s denial of a Franklin proceeding for abuse of discretion. In deciding whether the trial court has abused its discretion we are required to ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Benzler (2021) 72 Cal.App.5th 743, 749

Fifth Holding:

The defendant’s motion contained sufficient information. Nothing in Cook indicates the motion bust describe with precision the vidence the offender seeks to introduce. The court’s commentary in Cook about what a motion should include is not the same as creating mandatory pleading requirements.

Courts have found there are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Discretion, Juveniles, Standard of review

Case 001022

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s order releasing information to [Person A] pertaining to the minor’s juvenile court proceedings, because the information accompanying the request was insufficient to justify the disclosure of confidential juvenile court matters.

First Holding:

he petition for release stated simply that the records pertaining to the minor’s juvenile file were being requested because of an ongoing law enforcement investigation. The petition did not provide any information about the law enforcement investigation. It did not indicate who was or were the subjects of the investigation. It does not state that the minor is a subject of, or somehow involved in, the investigation.

Even assuming the petitioner is a law enforcement employee, it does not explain why the requested records are necessary or have substantial relevance to a legitimate need of the petition (or the law enforcement agency. It does not describe in detail the reasons the file is being sought and its relevance to the proceeding or other purpose for which petitioner wishes to inspect or obtain the file.

The petition lacks any details demonstrating good cause to grant the request.

Authority:

Cal. Rules of Court, rule 5.552(a)(2)

Second Holding:

Welfare and Institutions Code section 827 authorizes a case file to be inspected without a court order by the attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor.

If [Person A], as a law enforcement officer, is actively participating in criminal or juvenile proceedings involving the minor, she would have been authorized to access the file without a court order and would not have needed to file a petition.

Authority:

WIC 827(a)(1)(E)

Third Holding:

The Legislature has expressly stated that juvenile court records, in general, should be confidential. Section 827 sets forth detailed provisions to protect this confidentiality. It specifies who is authorized to inspect case files without a court order. Section 827 also contains provisions that permit unauthorized persons to directly petition the juvenile court for access to the confidential records.

Under section 827 the juvenile court has exclusive authority to determine whether and to what extent to grant access to confidential juvenile records to unauthorized persons. This statutory scheme reflects a legislative determination that the juvenile court has both the sensitivity and expertise to make decisions about access to juvenile records.

Authority:

WIC 827

J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1337

Fourth Holding:

Rule 5.552 dictates the procedure for, and judicial review of, a request to access a juvenile case file pursuant to section 827.

The petitioner must identify the specific file sought and describe in detail the reasons the file is being sought and its relevance to the proceeding or other purpose for which petitioner wishes to inspect or obtain the file.

The petitioner bears the burden to show good cause justifying access to the records. If the petitioner does not show good cause, the court must deny the petition summarily.

If there is good cause, the court may set a hearing. Whether or not the court conducts a hearing, if the court determines that there may be information or documents in the records sought to which the petitioner may be entitled, the court must conduct an in camera review of the case file and any objections.

In determining whether to authorize disclosure, the court must balance the interests of the child, the interests of the petitioner, and the interests of the public and may permit access only insofar as is necessary, and only if petitioner shows by a preponderance of the evidence that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner. To grant the petition, the court must find that the need for access outweighs the policy considerations favoring confidentiality of the juvenile case file.

Authority:

Cal. Rules of Court, rule 5.552

Fifth Holding:

Generally, a juvenile court has broad and exclusive authority to determine whether and to what extent to grant access to confidential juvenile records pursuant to section 827.

Review of a juvenile court’s decision to release juvenile records under section 827 is for abuse of discretion.

The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Here, the juvenile court applied the law dictating petitions to access juvenile case files to undisputed facts. Therefore, we review whether its decision was arbitrary and capricious.

Authority:

In re Elijah S. (2005) 125 Cal.App.4th 1532, 1541

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

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]