Category Archives: Probation Parole PRCS

AppellateAdvisor Updates, Duty of the court, Probation Parole PRCS, Sentencing

Case 000762

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied the defendant’s motion to dismiss his conviction under section 1203.4 following his fulfillment of conditions of probation. The trial court concluded that the defendant was not eligible for relief as long as he had to register as a sex offender. The trial court denied the defendant’s petition for an erroneous reason without determining whether he fulfilled the conditions of probation for the entire probation period. Therefore, the order denying the petition is reversed, and the trial court is directed to make that determination.

First Holding:

When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, the defendant is entitled to have his conviction set aside and the case dismissed.

Authority:

PEN 1203.4(a)(1)

Second Holding:

This statutory provision is clear. If the defendant fulfilled the conditions of probation for the entire period of probation, the trial court shall allow the defendant to withdraw his guilty plea and shall thereupon dismiss the accusations or information. Dismissal in this circumstance is mandatory.

Authority:

People v. Daffeh (2024) 104 Cal.App.5th 790, 796

People v. Tran (2015) 242 Cal.App.4th 877, 892, fn. 6 [under section 1203.4, if the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief]

Third Holding:

A person who has suffered a conviction specified in section 290 is required to register as a sex offender, notwithstanding dismissal of such conviction pursuant to 1203.4. But the duty to register as a sex offender does not make the person ineligible for relief under section 1203.4

Authority:

Doe v. Brown (2009) 177 Cal.App.4th 408, 423

People v. Chatman (2018) 4 Cal.5th 277, 287

People v. Hamdon (2014) 225 Cal.App.4th 1065, 1071, fn. 3 [Section 290.007 expressly precludes relief from the sex offender registration requirement for persons whose convictions are dismissed pursuant to section 1203.4]

People v. Guillen (2013) 218 Cal.App.4th 975, 996 [same]

Fourth Holding:

If the defendant has not fulfilled the conditions of probation for the entire period of probation or been discharged prior to the termination of the probation period, the court still has discretion to grant relief in the interests of justice.

Authority:

People v. Guillen (2013) 218 Cal.App.4th 975, 991

Juveniles, Probation Parole PRCS, Sentencing

Case 000734

Posted on by Gary McCurdy

Error and/or relief

The court imposed as a condition of probation: “Do not associate or communicate with your co-participant and anyone you know who is on probation, parole, or a gang member” The defendant objects to the inclusion of the phrase “or a gang member.” The condition must be modified.

First Holding:

The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. Although courts have broad discretion to set conditions of probation, the trial court’s discretion in setting the conditions of probation is not unbounded.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Lopez (1998) 66 Cal.App.4th 615, 624

Second Holding:

A term of probation is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality Conversely, a condition of probation that requires or forbids conduct that is not itself criminal is valid if that conduct is reasonably related to the crime of which the minor was convicted or to future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 48

Third Holding:

When a gang condition imposed by the juvenile court involves non-criminal conduct and prohibits a minor from engaging in otherwise legal conduct, we can uphold it only if there is a reasonable connection between the condition and the offense or between the condition and future criminality. Gang-related probation conditions are reasonably related to preventing future criminality when there is evidence of the minor’s affiliation with criminal street gangs.

In the absence of evidence of gang affiliation or association with gang members or risk of gang involvement on the minor’s part, the gang condition is not tailored to his future criminality. In this case, any connection between the minor’s offense and gang activity is speculative.

Accordingly, the condition is modified to “Do not associate or communicate with your co-participant and anyone you know who is on probation or parole.”

Authority:

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236

People v. Brandão (2012) 210 Cal.App.4th 568, 574

Probation Parole PRCS, Sentencing, Standard of review

Case 000726

Posted on by Gary McCurdy

Error and/or relief

The court ordered appellant participate and complete general education/counseling and mental health counseling at the discretion of and as directed by probation. We find that delegating unfettered discretion to the probation department to determine whether appellant shall participate and complete education and counseling is impermissible and violates the separation of powers doctrine.

As such, we strike this probation condition and remand the matter to the trial court to consider whether or not appellant shall participate in and complete education and counseling as a condition of his probation, consistent with this opinion.

First Holding:

The People argue that appellant forfeited his probation-condition challenge by failing to object to it at the sentencing hearing. The forfeiture doctrine is a well-established principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Strong policy reasons support this rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.

The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

In re Sheena K. (2007) 40 Cal.4th 875, 880–881

Second Holding:

One exception to the forfeiture doctrine includes a facial constitutional challenge—one that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.

Appellant presents a facial challenge: the issue is whether the trial court may, under the separation of powers doctrine, delegate to the probation officer the determination of whether appellant must participate and complete education/counseling and mental health counseling.

Such a claim is not predicated on the factual details about the specific education and counseling ordered, appellant’s specific rehabilitative needs, or on the details of the programming the probation officer could determine under this condition. The forfeiture doctrine does not apply in this circumstance.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 885, 887-888

Third Holding:

The California Constitution separates the state government’s power into legislative, executive, and judicial branches and prohibits persons charged with the exercise of one power to exercise either of the others except as permitted by the California Constitution. The separation of powers doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

A trial court has broad discretion to impose probation conditions to promote rehabilitation of the defendant and to protect the public. The court also has authority to empower the probation department with authority to supervise the probation conditions.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

Authority:

PEN 1203.1(j)

PEN 1202.7

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fifth Holding:

We review a constitutional challenge to a probation condition de novo.

Authority:

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Sixth Holding:

Imposing a probation condition that subjects the defendant to the approval or direction of the probation officer is a permissible delegation. But delegating to a probation officer the decision of whether a defendant will participate in a specific form of treatment is an improper delegation of judicial authority.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–309

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903 [probation condition violates separation of powers doctrine by delegating to probation officer whether the defendant would be required to attend residential treatment/therapy/counseling program]

Seventh Holding:

Here, the court’s order for appellant to submit to education and counseling was much broader than simply leaving the details of that programming to the probation department, it gave the probation department the unlimited discretion to decide whether appellant is required to participate and complete general education and counseling at all.

Specifically, the court ordered appellant to participate and complete education/counseling and mental health counseling at the discretion of and as directed by the probation department.

This is an invalid delegation of judicial authority: although the court may delegate to probation the determinations of when and where a condition will be satisfied, the court may not delegate the decision of whether counseling or education shall be completed.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903

Juveniles, Probation Parole PRCS

Case 000717

Posted on by Gary McCurdy

Error and/or relief

The court imposed a condition requiring the minor to participate in counseling and/or an education program as directed by his probation officer. This condition is too indefinite and we reverse and remand for the court to modify or strike it.

First Holding:

Although the minor did not object to this condition, we may still consider his challenge because it presents a pure question of law.

Authority:

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

Second Holding:

A juvenile court has broad discretion to fashion conditions of probation. And the court may empower the probation department with authority to supervise probation conditions. But, while a court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation, the court’s order cannot be entirely open-ended.

By leaving key determinations to be decided ad hoc, a vague probation condition may also result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re P.O. (2016) 246 Cal.App.4th 288, 293

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Third Holding:

The court did not specify any particular kind of counseling or education program. Indeed, by putting “and/or” between education and counseling, the court did not make clear whether the minor must participate in education, counseling, or both. Because the condition in this case contains no standard by which the probation department is to be guided, the condition is too broad and must either be stricken or rewritten to provide the necessary specificity.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359

Fourth Holding:

We acknowledge the line between an appropriate delegation of details and an improper delegation of judicial authority may not always be clear. But the trial court must at least select a specific category of educational or therapeutic programming.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902–903 [striking condition requiring defendant to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer because the court must choose between residential and outpatient programming]

Cf. People v. Penoli (1996) 46 Cal.App.4th 298, 301, 302, 308 [approving condition requiring defendant to enter a residential drug treatment program as approved by the Probation Officer because any attempt to specify a particular program at or prior to sentencing would pose serious practical difficulties]

Probation Parole PRCS, Sentencing

Case 000692

Posted on by Gary McCurdy

Error and/or relief

The condition of probation requiring the minor to “report to your probation officer as directed and follow his or her orders” is unconstitutionally vague and overbroad and must be modified.

First Holding:

We review constitutional challenges to probation conditions de novo.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Second Holding:

A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Third Holding:

Courts may not delegate to probation officers the authority to set probation conditions. A probation officer has wide discretion to enforce court-ordered conditions and to give directives to a probationer, if those directives are reasonably related to previously imposed terms. The condition as drafted does not clearly demarcate the scope of the probation officer’s wide discretion to enforce the court’s conditions. To remove any ambiguity on this point, we will direct that the condition be modified to read “Report to [the probation officer] as directed and follow his/her orders related to the probation conditions imposed by the court.”

Authority:

In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373

People v. Smith (2022) 79 Cal.App.5th 897, 902 [While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.]

Abstracts and Minutes, Appellate Principles, Probation Parole PRCS, Sentencing

Case 000664

Posted on by Gary McCurdy

Error and/or relief

We order the trial court to correct its minute order to accurately reflect the court’s oral pronouncement of the travel ban probation condition.

First Holding:

At the sentencing hearing, the trial court imposed a condition of probation that defendant was not to leave the state of California without the consent of the probation officer. However, the corresponding minute order lists the condition as “Do not leave California.” As such, the minute order does not accurately reflect the oral pronouncement of the court.

A court has inherent power to correct clerical errors in its records so as to make these records reflect the true facts. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Errors in the court’s minute orders are clerical errors that may be corrected at any time.

Authority:

In re Candelario (1970) 3 Cal.3d 702, 705

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185–186

Appellate Principles, Probation Parole PRCS, Sentencing

Case 000655

Posted on by Gary McCurdy

Error and/or relief

The probation condition ordering treatment but permitting the probation officer to decide whether such treatment should be residential was an improper delegation of the court’s authority.

First Holding:

Under the state constitution, judicial powers may not be delegated to nonjudicial officers. Allowing the probation officer discretion to decide whether the probationer had to attend a residential program, as opposed to outpatient treatment, improperly delegated judicial authority in violation of the separation of powers doctrine.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

Second Holding:

The defendant did not object to this probation condition with the trial court, but his appellate claim is not forfeited because he claims a facial constitutional violation.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888–889 [appellate claim that a probation condition was unconstitutionally vague and overbroad was not forfeited by failure to object below where the facial challenge was a pure question of law]

Jurisdiction, Probation Parole PRCS, Sentencing

Case 000638

Posted on by Gary McCurdy

Error and/or relief

Though the trial court had summarily revoked probation prior to its expiration, for deserting probation, the trial court lacked the authority to find that the defendant violated probation based on his arrest for an offense that allegedly occurred in 2024, after his probation period expired in 2023. That matter is remanded for the court to determine whether there were grounds for revocation based on conduct occurring before probation expired.

Holding:

Summary revocation of probation preserves the trial court’s authority to adjudicate a claim that the defendant violated a condition of probation during the probationary period. A trial court can find a violation of probation and then reinstate and extend the terms of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 515-516

Equal protection, Probation Parole PRCS, Standard of review

Case 000622

Posted on by Gary McCurdy

Error and/or relief

Defendant, age 23 at the time of the offense, was sentenced to life without the possibility of parole (LWOP). He sought a Franklin hearing to be able to present evidence that could be considered as mitigating factors related to his youth at the time of the crime in the event there is ever a parole hearing. The trial court denied the motion to conduct the hearing, on the basis that LWOP inmates will never be considered for parole. Reversed. We cannot determine whether the basis of his conviction would render him eligible even if the reasoning in Briscoe regarding a violated of equal protection is sound. We remand the matter to allow defendant to establish he is entitled to a Franklin hearing.

First Holding:

A Franklin hearing permits parties to preserve evidence relevant to a future youthful offender parole hearing under section 3051. Certain persons are, however, categorically ineligible for youth offender parole hearings, including cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age.

Authority:

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

People v. Franklin (2016) 63 Cal.4th 261

People v. Hardin (2024) 15 Cal.5th 834, 843

Second Holding:

California’s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. To this end, section 3051 requires the Board of Parole Hearings to hold a parole hearing for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of the controlling offense. The minimum number of years of incarceration before eligibility was 15, 20, or 25 years, depending on the length and nature of the sentence imposed.

Authority:

PEN 3051

People v. Hardin (2024) 15 Cal.5th 834, 843

Third Holding:

The court in Briscoe concluded, notwithstanding Hardin, section 3051 violates equal protection as applied to youth offenders who were convicted as a major participant who acted with reckless indifference to human life. Defendant may have been so convicted and therefore might be entitled to relief under section 3051. The trial court consequently erred in summarily denying defendant’s motion. Without taking a position on the correctness of Briscoe, we remand with directions to allow defendant the opportunity to demonstrate his eligibility for a Franklin hearing.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 485, 494

Fourth Holding:

As a result of changes in the law regarding the liability of persons who were not the actual killer, a person may now be found guilty of murder if the person was a major participant in the felony and acted with reckless indifference to human life as described in section 190.2(d). Section 190.2(d) is the section describing a special circumstance under which a person may be punished by death or LWOP.

Thus, a person may be convicted simply of first degree murder as a major participant in the underlying felony who acted with reckless indifference to human life and be sentenced to either 25 years to life (the sentence for first degree murder without special circumstances) or LWOP (the sentence for the same act but in which the special circumstance was alleged that the defendant was a major participant in the underlying felony who acted with reckless indifference to human life).

Briscoe concluded that section 3051 purports to include the defendants convicted of the same behavior and received a sentence of 25 years to life, but to exclude those for whom the special circumstance describing the same behavior was alleged and found true and an LWOP sentence was imposed.

Briscoe concluded that section 3051 improperly denied equal protection under those circumstances, and that such individual should be eligible for consideration under section 3051 even if the sentence was LWOP.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 494

Fifth Holding:

The equal protection clause of the Fourteenth Amendment to the United States Constitution provides that no state may deny to any person within its jurisdiction the equal protection of the laws. At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.

The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. For the classification at stake here, based on a person’s criminal sentence, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.

A court applying this standard finds a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.

We analyze equal protection claims de novo

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 847

People v. Briscoe (2024) 105 Cal.App.5th 479, 487

Sixth Holding:

Hardin considered that it does not violate equal protection for section 3051 to apply to those sentenced to LWOP who committed the offense before they were 18 years old but not apply to those sentenced to LWOP for crimes committed as an adult.

The defendant Hardin did not demonstrate that the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder, even as it has granted youth offender hearings to young adults convicted of other offenses.

But the court made this conclusion without foreclosing the possibility of other as-applied challenges to the statute.

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 838-839

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]

Amelioration, Probation Parole PRCS, Sentencing

Case 000562

Posted on by Gary McCurdy

Error and/or relief

The trial court denied a petition by defendant for resentencing under what is now Penal Code section 1172.75 because, by the time the trial court conducted a resentencing hearing, the defendant had been released on parole. This was error, and the matter is remanded for resentencing.

First Holding:

Under section 1172.75, unless imposed for certain specified sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is invalid. Section 1172.75 also provides for resentencing of individuals upon whom now-invalid prison prior enhancements under section 667.5 were imposed. This resentencing proceeds in three stages.

The first stage, which involves correctional officials, is identification: Section 1172.75 requires state and county correctional officials to identify those persons in their custody currently serving a term for a judgment that includes [a now-invalid prison prior] enhancement and inform the sentencing court.

The second stage, which is conducted by the courts, is verification: The sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement that is now invalid.

The third stage, which is also conducted by the courts, is actual resentencing: If a defendant has been identified as eligible, and a court has verified eligibility, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 does not require a defendant who is incarcerated and eligible at the beginning of the resentencing process under the statute to remain incarcerated until actual resentencing.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057

Third Holding:

Because section 1172.75 requires correctional officials to identify persons in custody serving a term, and a term is ordinarily understood to be time served in prison, only defendants who are incarcerated at the time of identification are eligible for resentencing under section 1172.75.

However, at the verification stage section 1172.75 requires courts to determine not that the identified persons are in custody serving a term, but rather that the current judgment includes a sentencing enhancement described in section 1172.75(a).

Moreover, because section 1172.75 expressly recognizes that there may be a substantial time lag between the identification and resentencing stages, it can be concluded that the Legislature intended the court-related criterion for resentencing eligibility to operate independently from earlier conditions applicable at the correctional official identification stage and did not include continued incarceration as a requirement at the verification stage.

Resentencing an individual who is on parole at the time of resentencing is not an idle act, because resentencing may reduce or terminate the period of parole.

Authority:

People v. Jefferson (1999) 21 Cal.4th 86, 95

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1067

Fourth Holding:

We also do not reach, and express no view on, whether a parolee serving an indeterminate sentence is entitled to termination, or reduction in the period, of parole if upon resentencing the sentence is reduced.

Authority:

In re Lira (2014) 58 Cal.4th 573, 578-582

In re Bush (2008) 161 Ca1.App.4th 133, 140-143

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000557

Posted on by Gary McCurdy

Error and/or relief

The court erred in placing the defendant on probation for a period of five years, because the maximum allowed in this case is three years. The matter is remanded for resentencing. There are also errors in the abstract of judgment that should be corrected in keeping with the resentencing.

First Holding:

Under the Penal Code, in granting probation, a trial court generally may suspend imposition or execution of sentence “for a period of time not exceeding two years. However, this two-year limit does not apply where an offense includes specific probation lengths within its provisions. Nevertheless, for such offenses, probation may continue for a period of time not exceeding the maximum possible term of the sentence.

Under Vehicle Code section 23600, under which violations of section 23152 are punishable, a period of probation not less than three nor more than five years may be imposed. But the defendant faced a maximum possible term of imprisonment of only three years. Accordingly, under section 1203.1(l)(1), the maximum authorized term of probation was three years, as the People concede.

Authority:

PEN 1203.1(a)

Second Holding:

An unauthorized sentence is subject to correction at any time without objection.

Authority:

People v. Landry (2016) 2 Cal.5th 52, 127, fn. 22

Third Holding:

The minute order contains errors, including a lab fee that was not ordered and transposing the fines to $2905 rather than the $2095 that was actually ordered by the court. Though because we are remanding for resentencing and thus the issue is moot, we point out that the minute order should accurately reflect fines, fees, and assessments pronounced by the trial court.. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order. In addition, the trial court retains the authority to correct clerical errors.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

People v. Mitchell (2001) 26 Cal.4th 181, 185