Category Archives: Sentencing

Abstracts and Minutes, Fines and fees, Sentencing

Case 000083

Posted on by Gary McCurdy

Error and/or relief

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken. And an error in the minute order must be corrected to reflect that two misdemeanors were dismissed.

First Holding:

Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct. Restitution is not intended to provide the victim with a windfall. Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.

Authority:

People v. Nichols (2017) 8 Cal.App.5th 330, 342

People v. Baker (2005) 126 Cal.App.4th 463, 470

Second Holding:

The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 625 [On September 18, 2020, the Governor signed AB 1869, which eliminated the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and eliminated all outstanding debt incurred as a result of the imposition of specified administrative fees.]

Third Holding:

The minute order fails to reflect that two misdemeanor counts were dismissed, and it must be corrected.

[Gary note: The court did not cite any authority for its order for correction, but there is plenty out there. I have set forth a few cases the court could have cited, for your convenience.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Zackery (2007) 147 Cal.App.4th 380, 387–388
People v. Gobert (2023) 89 Cal.App.5th 676, 689
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

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

Second Holding:

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:

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

Third Holding:

The United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses. 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, 837-838

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Sixth Holding:

When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776 [To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Amelioration, Sentencing

Case 000080

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former sec. 667.5(b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing.

Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985

People v. Faustinos (2025) 109 Cal.App.5th 687

People v. Raoy (2025) 110 Cal.App.5th 991

People v. Brinson (2025) 112 Cal.App.5th 1040

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Defenses, Sentencing

Case 000076

Posted on by Gary McCurdy

Error and/or relief

The charge for violating a protective order was barred by the statute of limitations. We therefore vacate defendant’s conviction for violating a criminal protective order but otherwise affirm the judgment.

Holding:

The misdemeanor violating a criminal protective order (sec. 166(c)(1)) must be vacated because it is barred by the applicable one-year statute of limitations.

Authority:

PEN 166(c)(1)

PEN 802

People v. Williams (1999) 21 Cal.4th 335, 338, 341

Amelioration, Sentencing

Case 000074

Posted on by Gary McCurdy

Error and/or relief

As in Patton, we grant appellant’s request to remand the matter for the opportunity to file a supplemental petition under Penal Code section 1172.6.

First Holding:

When the court makes the prima facie determination, it may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition.

Authority:

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

Second Holding:

Petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail. It follows from what we have said already that should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing, assuming relief is not otherwise foreclosed.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Third Holding:

While it may be that a record can refute the allegations made in the petition, it would be somewhat imprecise to say that evidence in a preliminary hearing transcript, offered at the prima facie stage, irrefutably establishes any particular fact to any particular standard of proof. A conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a conclusion about the strength of evidence in the record.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567, fn. 10

Amelioration, Sentencing, Sixth Amendment

Case 000073

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed upper term sentences on Counts 1 and 3, and the matter must therefore be remanded for resentencing. We agree that the defendant’s trial rights notwithstanding, the court’s reliance on his prior criminal history to impose aggravated terms was prejudicial error.

First Holding:

Section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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(b)

People v. Lynch (2024) 16 Cal.5th 730, 742

Second Holding:

Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. Thus, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742, 748

Third Holding:

Except for properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception to prior convictions permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions, within the meaning of the federal sentencing statute at issue. Instead, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. In doing so, the court reaffirmed the basic rationale of Apprendi and rejected the arguments made by the dissent and amicus curiae that, historically, when exercising their sentencing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to the penalty.

Authority:

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

Mathis v. United States (2016) 579 U.S. 500, 511–512

Fourth Holding:

Since Erlinger, the California Supreme Court has gone further to make it clear that Erlinger requires that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083–1084 [absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor]

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, 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, 1038

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

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

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

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

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

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

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Amelioration, Retroactivity, Sentencing

Case 000068

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which narrowed liability for gang-related crimes.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607

Third Holding:

Assembly Bill No. 333 is retroactive under Estrada, meaning it applies to cases like this one where the judgment is not yet final.

Authority:

In re Estrada (1965) 63 Cal.2d 740

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Fourth Holding:

In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. [Gary note: I included this tidbit simply to raise awareness of a Court of Appeals options in how opinions may be crafted.]

Authority:

California Standards of Judicial Administration, section 8.1(1)

 

Amelioration, Sentencing

Case 000066

Posted on by Gary McCurdy

Error and/or relief

We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.

First Holding:

An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal.

Authority:

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

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

In 2019, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant.

Authority:

PEN 667.5(b)

PEN 1172.75

Sentencing

Case 000065

Posted on by Gary McCurdy

Error and/or relief

When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.

Holding:

Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

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

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125 [Gary note: Phoenix is interesting in that it held that when a court is resentencing a defendant on cases inolving more than one county–e.g., running the home county’s sentence consecutive to or concurrent with a sentence imposed in another county–it is the duty of that home county court to calculate all the credits earned in all the cases, including any in another county.]