Category Archives: Duty of the court

Duty of the court, Fines and fees, Sentencing

Case 000835

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erroneously imposed an enhancement that had been vacated as a result of an earlier appeal. The court also erred by not recalculating the credit for time served through the date of the resentencing. Further, the restitution fine must be vacated, as it was imposed at least 10 years ago.

First Holding:

When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody. The California Department of Corrections and Rehabilitation is responsible for calculating any postsentence custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Dean (2024) 99 Cal.App.5th 391, 397

Second Holding:

After 10 years have elapsed from the imposition of a restitution fine imposed under section 1202.4, any remaining balance is unenforceable and uncollectible. Any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Third Holding:

The trial court struck the six one-year prior prison terms but declined to otherwise modify the sentence. However, although this court had previously vacated the three-year term imposed on count 1 pursuant to section 12022.7,(a), in resentencing the defendant, the trial court again imposed the enhancement and three-year term. The parties agree this was error, as do we. The great bodily injury enhancement imposed as to count 1 must be stricken and the three-year term vacated.

(Gary note: The court cited no authority for its order striking the enhancement that had been stricken in the earlier appeal. The relief seems obvious enough. Under section 1260, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

(If that doesn’t precisely address the issue, one could also look at Dutra, although it, too, is not exactly on point. It dealt with the trial court’s act of not complying with the instructions in the remittitur because of a change in the law, but the change did not permit it to act outside the direction of the remittitur. Again, not exactly what happened here.

(Or one could argue that imposing the enhancement resulted in an unauthorized sentence (again), which can be corrected whenever the matter is before the court. See, for example, Sanders.

(It just seems so intuitive that the trial court, on resentencing, could not reimpose an enhancement that was stricken as unlawful in the earlier appeal. I’m not surprised the appellate court did not see a need to cite authority, particularly where the parties both agreed on the error and remedy. The authorities I have listed below were not cited by the court, and the two cases are fairly distinguishable from this situation, but might prove interesting reading nonetheless.)

Authority:

PEN 1260

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13

Abstracts and Minutes, Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000831

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have recalculated the defendant’s custody credits. Further, the abstract of judgment erroneously indicates that the court reimposed the restitution fine and suspended it. In fact, the court did not reimpose the fine, and thus this is clerical error that must be corrected.

First Holding:

The abstract of judgment erroneously includes a restitution fine. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

In fact, the trial court did not reimpose the restitution fine, so this appears to have been a clerical error. Therefore, we remand so the court may correct the abstract of judgment.

(Gary note: The court did not cite any authority for its order directing correction, but there are many cases the court could have relied on. I have set forth several below the Penal Code section in the Authority section below.)

Authority:

PEN 1465.9(d)

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

Second Holding:

There was an error in calculating the defendant’s days of custody credit. Remanded for the court to calculate the correct number of days.

(Gary note: Again, the court cited no authority for this obvious solution, so I have set forth a few below.)

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Duty of the court, Sentencing

Case 000830

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a “win,” even under my generous standards, but I have included it because it instructs on the duty of the court to recalculate credit for actual days served since the prior sentencing, but the trial court does not calculate the conduct credits earned since the original sentencing.)

The trial court erred in awarding presentence conduct credit for time the defendant spent in custody between his original sentencing and the time he was resentenced following remand from his earlier appeal.

Holding:

It was error for the court to calculate credits under section 2933.1 for conduct of the defendant in custody between the date of his original sentencing and the date of his resentencing as a result of his prior appeal.

The court should have calculated the days in actual custody (along with whatever local conduct credit the defendant earned prior to his original sentencing).

The California Department of Corrections and Rehabilation [CDCR] will then determine what conduct credit the defendant is entitled to following his original sentencing. An appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the Director of the CDCR’s custody or restore the prisoner to presentence status. A defendant’s temporary removal from state prison to county jail as a consequence of the remand did not transform him from a state prisoner to a local presentence detainee.

When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Duty of the court, Jury trial, Standard of review

Case 000829

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. Reversed and remanded for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.

Authority:

U.S. Const., 6th Amend.

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

Second Holding:

Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of circumstances.]

People v. Daniels (2017) 3 Cal.5th 961, 992

Third Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.

We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Fourth Holding:

Our Supreme Court has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver. That said, it has emphasized the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial.

The Supreme Court has recommended that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will make the decision.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

Fifth Holding:

The Supreme Court has also recommended that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails.

A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived.

Ultimately, a court must consider the defendant’s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.

(Gary note: The court then analyzed record in this case and concluded that the jury trial waiver was not knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay–that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.)

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

People v. Jones (2018) 26 Cal.App.5th 420, 428

Duty of the court, Plea bargains, Sentencing

Case 000804

Posted on by Gary McCurdy

Error and/or relief

When the defendant pleaded guilty, the agreement was that he would be placed on probation, and if he violated probation and it was revoked, he would be sentenced to prison for three years. It was error on revocation of probation for the court to sentence him to four years.

First Holding:

The process of plea negotiation contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty or no contest in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.

This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment, by the People’s acceptance of a plea to a lesser offense than that charged, either in degree or kind, or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and prosecution. But implicit in all of this is a process of bargaining between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 929–930

People v. Prudholme (2023) 14 Cal.5th 961, 970

Second Holding:

The prosecutor is the only party authorized to negotiate on behalf of the state, and the trial court cannot substitute itself in place of the prosecutor. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930

Third Holding:

Because a negotiated plea agreement is a form of contract, it is interpreted according to general contract principles. Acceptance of the agreement binds the court and the parties to the agreement. [When a guilty or nolo contendere plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931

Fourth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.

A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, either directly or indirectly. Once the court has accepted the terms of the negotiated plea, it lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.

For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, but it cannot change that bargain or agreement without the consent of both parties.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

Fifth Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

Authority:

PEN 1192.5(b)

Sixth Holding:

Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved. When a court accepts a plea bargain, it must impose a sentence within the limits of that bargain.

Authority:

People v. Brooks (2020) 58 Cal.App.5th 1099, 1107

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047

Seventh Holding:

It is well settled that a criminal defendant cannot argue for the first time on appeal that the trial court aggravated a sentence based on items contained in a probation report that were erroneous or otherwise flawed. The defendant did not object to the recommendation in the probation report that he be sentenced to four years, nor did he object when the court imposed that term.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351–352

People v. Victorian (1992) 2 Cal.App.4th 954, 958

Eighth Holding:

Defendant raises the alternate argument that the trial attorney was prejudicially ineffective for failing to object to the trial court’s imposition of the four-year term. To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced.

Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different. To prevail on a claim of ineffective assistance on appeal the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.

Authority:

People v. Cash (2002) 28 Cal.4th 703, 734

Ninth Holding:

In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Jones (2003) 29 Cal.4th 1229, 1254

Tenth Holding:

It appears that between the time of the plea agreement in 2022 and the revocation proceedings in 2025, the trial court and the parties were unaware of the terms and conditions of the plea agreement, that the court did not withdraw its approval of the plea agreement, the plea agreement was never modified, and the probation report’s recommendation of the upper term violated the terms and conditions of the plea agreement as agreed to by the prosecution and defendant in 2022.

Instead, it appears the probation officer unilaterally recommended the upper term of four years without consideration of the plea agreement for the midterm of three years.

Defendant is not seeking a sentence outside the terms of the plea agreement but seeking to enforce the plea agreement. When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Therefore, we direct modification of the abstract of judgment to reflect the sentence agreed to by the parties and approved by the trial court in 2022—that defendant should be sentenced to the midterm of three years.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80