Category Archives: Sentencing

Amelioration, Sentencing

Case: 000247

Posted on by Gary McCurdy

Error and/or relief

The defendant is not eligible to have a full resentencing under section 1172.75 because no now-invalid prior prison term enhancement had ever been imposed, a pre-condition for invocation of section 1172.75. The abstract of judgment must be corrected because it erroneously indicates that the enhancement for the prior prison term was stayed, when it is clear from the record that the court actually struck the enhancement rather than impose and stay it.

First Holding:

Appellate courts may exercise their authority to correct clerical errors, including correcting an abstract of judgment and may strike statements in the abstract to conform with the court’s oral pronouncement. Because the trial court explicitly stated, “The court is likewise going to strike the 667.5(b) prison prior,” the enhancement should not have been listed in the abstract of judgment, and we have the authority to order the abstract’s correction without requiring an accompanying resentencing. We order that correction accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

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

Second Holding:

The question in this case was left open by the Supreme Court in People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2 and, as is discussed below, is factually distinguishable from the issue to be decided in People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted October 23, 2024, S286987, which hinges on the “imposition” of a stricken prison prior enhancement’s punishment. Pending briefing before the Supreme Court is limited to the following issue: “Is a defendant entitled to resentencing under Penal Code section 1172.75 when the judgment in the defendant’s criminal case includes a prior-prison-term enhancement that was imposed but for which punishment was stricken?” (Espino, S286987, Supreme Ct. Mins., July 30, 2025.)

[Gary Note: Espino was decided by the Supreme Court on July 2, 2026. It did firmly hold that section 1172.75 applies when the punishment for a now-invalid prior prison term enhancement was stricken, not merely stayed as it was in Rhodius. Footnote 1 of the Supreme Court opinion in Espino seems to make it clear that it was not deciding the issue that arose in this Case 000247. Footnote 1: “Our decision in Rhodius also left open whether a prior prison term enhancement is “imposed” (sec. 1172.75(a)) “when an enhancement, not just its associated punishment, [is] stricken” (Rhodius, supra, 17 Cal.5th at p. 1066, fn. 2). As that question is not at issue in this case, we do not address it.”

I can tell you that a petition for review in this case (the one for which this is the summary, 000247) was denied a few months ago, before Espino was decided. It seems it will take a different case to convince the Supreme Court to decide whether a person is eligible for relief under section 1172.75 in cases where the court struck the enhancement itself (and thus had nothing on which to impose and either stay or strike punishment.)]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2

People v. Espino (2024) 104 Cal.App.5th 188, 194 (review granted 10/23/24, S286987

People v. Espino (2026) ___ Cal.5th ___ (S286987, decided July 2, 2026)

Sentencing

Case: 000246

Posted on by Gary McCurdy

Error and/or relief

Though not entitled to conduct credits because he was convicted under the One Strike Law, the defendant was entitled to credit for actual time in custody. The matter is remanded for the court to determine and award the length of time he was in custody.

First Holding:

The defendant is entitled to presentence custody credits. As there appears to be a factual discrepancy regarding the date of his arrest, we remand this issue to the trial court for a determination of the appropriate amount of presentence custody credit

Authority:

PEN 2900.5

People v. Ravaux (2006) 142 Cal.App.4th 914, 919

People v. Fares (1993) 16 Cal.App.4th 954, 958

Second Holding:

A person sentenced under the One Strike Law (section 667.61) is not entitled to pre-sentence conduct credit.

Authority:

People v. Adams (2018) 28 Cal.App.5th 170, 182

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Dearborne (2019) 34 Cal.App.5th 250, 267–268

Sentencing, Standard of review

Case: 000245

Posted on by Gary McCurdy

Error and/or relief

Section 654 required the court to stay the punishment for one of his two criminal threat convictions. The record is devoid of any evidence suggesting that the defendant had sufficient time to reflect and renew his intent between his act of sending the first set of text messages giving rise to count 2 and his act of sending the second set of text messages giving rise to count 3. Therefore, we modify the judgment to stay the punishment for one of the counts.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 protects against multiple punishment, not multiple conviction. To avoid double punishment, a sentencing court applying section 654 will impose the sentence for one offense while staying the imposition of the sentence on the other offense.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 336

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311–312

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Third Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. The court’s express or implied findings in support of its determination that section 654 does not apply will be upheld on appeal if substantial evidence supports them. The applicability of section 654 to settled facts presents a question of law.

Authority:

People v. Cruz (2020) 46 Cal.App.5th 715, 737

People v. Harrison (1989) 48 Cal.3d 321, 335

Fourth Holding:

Where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654. However, in the absence of some circumstance foreclosing its sentencing discretion a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. Indeed, a court may even rely on facts underlying verdicts of acquittal in making sentencing choices.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1339-1340

Fifth Holding:

If multiple offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. However, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Gaynor (2019) 42 Cal.App.5th 794, 800 [even if a course of conduct is directed to one objective, it may give rise to multiple violations and punishment if it is divisible in time]

People v. Goode (2015) 243 Cal.App.4th 484, 492 [If the offenses were committed on different occasions, they may be punished separately]

People v. Gaio (2000) 81 Cal.App.4th 919, 935

People v. Louie (2012) 203 Cal.App.4th 388, 399 [If the separation in time afforded the defendant an opportunity to reflect and to renew the defendant’s intent before committing the next crime, a new and separate crime is committed.]

Amelioration, Duty of the court, Sentencing

Case: 000242

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to update the credits for time served, and awarded only the credits allowed at the original sentencing 12 years earlier. This was error, and the matter is remanded for the trial court to recalculate the proper credits as of the date of the resentencing hearing.

Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Amelioration, Sentencing

Case: 000239

Posted on by Gary McCurdy

Error and/or relief

Here, where the petition was facially sufficient, it was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage without appointing counsel and without a hearing. The trial court in this case appointed no counsel, conducted no hearing, and did not consider briefing, arguments of either party, or any other portion of the trial record, which necessarily informs the prima facie inquiry. On this record, with multiple participants in the shooting incident, as well as the jury’s instruction on the natural and probable consequences doctrine, a theory of implied malice, we cannot say it would be a waste of judicial resources to send the case back to the trial court to conduct its obligations under section 1172.6.

First Holding:

Effective January 1, 2019, the Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. It also added section 1170.95, now section 1172.6, to provide a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Thereafter, it expanded the path to resentencing under the law to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723-724

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

A petition under section 1172.6 that includes a declaration by petitioner that the petitioner is eligible for relief , based on all the requirements of section 1172.6, subdivision (a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558-559

Third Holding:

The prima facie inquiry is limited A petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. Indeed, in assessing petitions from individuals convicted after a jury trial, the jury instructions will be critical. The record of conviction also includes documents such as verdict forms. If the record [of conviction, including the court’s own documents, contains facts refuting the allegations made in the petition, then ‘the court is justified in making a credibility determination adverse to the petitioner. The court may deny the petition at the prima facie stage only if the record of conviction conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971, 974

People v. Strong (2022) 13 Cal.5th 698, 720 [factfinding is prohibited at the prima facie stage]

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Patton (2025) 17 Cal.5th 549, 563

People v. Gallardo (2024) 105 Cal.App.5th 296, 301

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

People v. Hickman (2025) 110 Cal.App.5th 1262, 1268

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000238

Posted on by Gary McCurdy

Error and/or relief

We strike the domestic violence probation fee. The defendant was sentenced to prison.

Holding:

The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.

Authority:

PEN 1203.97(a)(5)

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term 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.

Authority:

PEN 1170

Third Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. 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). Under the current version of section 1170(b)(2), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 768

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

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

Appellate Principles, Due process, Sentencing

Case 000235

Posted on by Gary McCurdy

Error and/or relief

Intro blurb here

First Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Amelioration, Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000232

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for mental health diversion because substantial evidence did not support the court’s conclusion that his mental illnesses were not a significant factor in the commission of the underlying offenses.

First Holding:

In 2018, the Legislature enacted provisions to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

PEN 1001.35

PEN 1001.36

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

Section 1001.36 provides that a defendant is eligible for pretrial diversion if the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert, and the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

If the defendant is eligible, the court also must determine whether the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. Therefore, we review a trial court’s factual findings in support of its ruling for substantial evidence.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Fourth Holding:

The trial court failed to apply the presumption that, given the timely diagnoses of mental health disorders, the mental condition contributed to his behavior. The burden then was on the prosecution to rebut the presumption by producing clear and convincing evidence tha there was no causal connection.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fifth Holding:

However, while eligibility and suitability are preconditions, mental health diversion remains discretionary even if they are met. Because of the existence of this residual discretion, the proper remedy is to remand with instructions for the trial court to consider both eligibility and suitability, along with making relevant findings, in accordance with the current law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Abstracts and Minutes, Amelioration, Sentencing

Case: 000231

Posted on by Gary McCurdy

Error and/or relief

The jury’s true finding in 2023 that the defendant suffered a prior serious felony and strike offense based on a past gang related conviction was error. We vacate the prior serious felony and strike conviction and remand for retrial and resentencing. Further, the abstract of judgment must be corrected because it reflects a conviction for first degree robbery when it should be second degree robbery.

First Holding:

In 2021, the Legislature amended the law prohibiting criminal gang activity law. In many respects, it changed the elements of a section 186.22 offense that the prosecution here did not prove. For a pre-AB 333 section 186.22 offense to qualify as a prior serious felony and strike offense, the prosecution was required to prove that the defendant’s past conduct met the post-AB 333 section 186.22 elements.

Authority:

PEN 186.22

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 582-583

Second Holding:

The abstract of judgment must be corrected.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate court could have cited]

Authority:

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

Discretion, Sentencing, Standard of review

Case: 000230

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on the recall of his sentence under section 1172.75, the court failed to recalculate his custody credits upon resentencing. We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. When a defendant is imprisoned and later resentenced, 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.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

We review a trial court’s decision not to strike a prior felony conviction for abuse of discretion. It is the defendant’s burden on appeal to show that the sentencing decision was irrational or arbitrary. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. In addition, we will not reverse a trial court’s sentencing decision merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371, 376-377

Jurisdiction, Probation Parole PRCS, Sentencing

Case: 000228

Posted on by Gary McCurdy

Error and/or relief

The defendant pleaded no contest to felony reckless evasion of a peace officer in a motor vehicle and misdemeanor driving with a prohibited blood alcohol concentration. The trial court granted probation for a period of three years. More than two years later, the defendant violated his probation, and the court imposed a felony prison term. The court lacked authority to impose a felony sentence because his violation of probation occurred after the first two years of the probationary term. We reverse the judgment and remand for resentencing.

Holding:

AB 1950 amended Penal Code sections 1203a and 1203.1 to restrict the length of most probation terms. (Stats. 2020, ch. 328, secs. 1, 2.) Effective January 1, 2021, misdemeanor probation terms are generally limited to one year and felony probation terms are generally limited to two years (sec.1203.1(a)). Exempt from these limits are offenses that ‘include specific probation lengths within their provisions.

Authority:

PEN 1203a

PEN 1203.1

AB 1950

People v. Saxton (2021) 68 Cal.App.5th 428, 431