Category Archives: Sentencing

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

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

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 001091

Posted on by Gary McCurdy

Error and/or relief

There are clerical errors in the abstract of judgment and sentencing minute order that must be corrected.

First Holding:

Contrary to the abstract of judgment and sentencing minute order, there was no order for direct victim restitution, and the defendant was not sentenced under section 667.7. Further, they reflect presentence conduct credits that he is not entitled to as a result of his crimes of conviction and was not awarded by the court. The court is ordered to correct those errors in the abstract of judgment and the sentencing minute order.

Authority:

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

Second Holding:

The defendant requests that we remand under Kopp for the trial court to consider the defendant’s ability to pay the standard assessments imposed under section 1465.8 and Government Code section 70373. He did not object to the standard assessments below and forfeited the claim.

Although Kopp was decided after the sentencing hearing, Dueñas was decided before. Dueñas held that a defendant may object to the imposition of standard assessments under section 1465.8 and Government Code section 70373 due to an inability to pay. Thus, an objection would have been supported by substantive law in existence at the time of the hearing; by failing to object, he forfeited the claim.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

People v. Welch (1993) 5 Cal.4th 228, 237–238 [failing to object excused if objection wholly unsupported by substantive law then in existence]

People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168

(Gary note: Be careful when relying on Duenas. While it may not have been completely overruled by Kopp, at least portions of its reasoning were disapproved by Kopp. Footnote 17 of Kopp states (I have deleted the Cal.Rptr. citations), “We disapprove the following cases to the extent they are inconsistent with our opinion: People v. Cowan (2020) 47 Cal.App.5th 32 …; People v. Belloso (2019) 42 Cal.App.5th 647 …; People v. Castellano (2019) 33 Cal.App.5th 485 …; People v. Dueñas, supra, 30 Cal.App.5th 1157.”)

Abstracts and Minutes, Fines and fees, Sentencing

Case 001090

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose an enhancement for great bodily injury under section 12022.7 in addition to the enhancement for use of firearm under section 12022.53(d). Further, the abstract of judgment reflects a $10,000 restitution fine that was not included in the oral pronouncement, and it must be corrected.

First Holding:

On count 1, the trial court imposed both a 3-year determinate term for great bodily injury under section 12022.7(a) and a 25-years-to-life indeterminate term for personally and intentionally discharging a firearm and proximately causing great bodily injury under section 12022.53(d). Because section 12022.53(d) requires a finding of great bodily injury, we see this as analogous to Gonzales, and order the enhancement under section 12022.7 stayed.

In Gonzales, the Supreme Court held that section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.

Authority:

PEN 12022.7

PEN 12022.53(d)

People v. Gonzalez (2008) 43 Cal.4th 1118, 1130

Second Holding:

The sentencing court imposed a restitution fine of $10,000 but suspended it pending a hearing on the defendant’s ability to pay. The abstract of judgment, however, indicates that the $10,000 restitution fine was imposed, and there is no indication that an ability to pay hearing occurred. We therefore exercise our authority to modify the abstract of judgment to reflect the oral pronouncement by striking the $10,000 restitution fine pursuant to section 1202.4(b).

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1473 [exercising authority to modify judgment, impose sentence, and stay execution of sentence]

People v. Felix (2009) 172 Cal.App.4th 1618, 1631 [correcting abstract to match oral pronouncement]

Sentencing, Sixth Amendment, Standard of review

Case 001089

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. Based on the probation report, the court found that the defendant had numerous prior convictions as an adult, had served prior prison terms, and was on postrelease community supervision at the time of the current offenses.

First Holding:

Section 1170(b)(2) provides that a trial 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.

The statute permits a court to 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:

PEN 1170(b)(2)

Second Holding:

Second 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. Under section 1170(b), 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.

The prior conviction exception to the Sixth Amendment does not permit a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

U.S. Const., Sixth Amend.

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

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

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

Third Holding:

Wiley applied Erlinger and overruled previous decisions finding it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory.

Wiley explained that, under Erlinger, the Sixth Amendment entitles a defendant to a jury determination before a court may rely on those aggravating facts to find justification for an upper term sentence, unless the defendant stipulates to their truth or waives a jury trial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1085

Fourth Holding:

A trial court’s reliance on aggravating circumstances found in violation of a defendant’s jury trial right 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. When assessing prejudice under Chapman, the question is whether any rational fact finder could have come to the opposite conclusion.

(Gary note: The court discuss circumstances specific to this defendant and concluded that the error was prejudicial under Chapman.)

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 747, 768, 743 [reversal and remand required unless reviewing court concludes beyond a reasonable doubt that a jury would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified]

People v. Wiley (2025) 17 Cal.5th 1069, 1090

Fifth Holding:

The California Supreme Court has cautioned about the difficulties in ascertaining whether a jury would have found true an aggravating circumstance that calls for an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance.

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.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Sixth Holding:

Though Wiley declined to address whether defendants are entitled to have a jury determine if their prior convictions are numerous, we accept the positions of the People that, under the holdings and logic of Erlinger and Wiley, a jury finding on this aggravating fact is required (absent waiver or stipulation), as the question whether a defendant has suffered “numerous” convictions (rule 4.421(b)(2)) involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1084

People v. Wright (2025) 113 Cal.App.5th 832, 847 [error to deny trial by jury on whether defendant suffered ‘numerous’ convictions in the past]

Seventh Holding:

Further proceedings on remand are to be conducted in accordance with the current statutory requirements and the defendant given the opportunity for the jury trial, of which he was deprived.

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court.

The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence.

If it cannot so conclude, it may impose no more than a middle term.

The matter is remanded for a full resentencing consistent with this opinion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 777

Amelioration, Elements of crime, Sentencing, Standard of review

Case 001088

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying at the prima facie stage the defendant’s 1172.6 petition for recall of his sentence.

First Holding:

In 2018, the Legislature amended the law of homicide, eliminating several theories of liability based on imputed malice. It has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted. Under what is now section 1172.6, it provided a mechanism for individuals previously convicted of murder to show their entitlement to retroactive relief under the legislative changes.

Pertinent to this case, SB 1437 added section 189(e), providing felony-murder liability only if the defendant:

(1) was the actual killer;

(2) was not the actual killer but, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder; or

(3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 1172.6(a)

People v. Patton (2025) 17 Cal.5th 549, 556

People v. Curiel (2023) 15 Cal.5th 433, 448

People v. Lewis (2021) 11 Cal.5th 952, 957

Second Holding:

SB 775 expanded eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Muhammad (2024) 107 Cal.App.5th 268, 275

Third Holding:

A section 1172.6 petition may be filed by a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter when certain specified conditions apply.

An individual convicted under prior law may petition to vacate the conviction and be resentenced on any remaining counts, if he or she could not now be convicted of murder or attempted murder because of the changes made by SB 1437.

Upon receipt of a petition containing all required information, the trial court must appoint counsel to represent the petitioner, if requested. The trial court must also set a briefing schedule and hold a prima facie hearing. If the trial court determines that petitioner has made a prima facie case for relief, it must issue an order to show cause and conduct an evidentiary hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708-709

People v. Lewis (2021) 11 Cal.5th 952, 959-960

Fourth Holding:

The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause. Acourt should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.

However, if the record, 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.

Authority:

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

Fifth Holding:

Whether the record of conviction shows that petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question we review de novo.

(Gary note: The court then continued by determining that the record the trial court was permitted to review at the prima facie stage did not necessarily reflect that the defendant was ineligible for relief under section 1172.6 and remanded to the trial court to issue an order to show cause and conduct an evidentiary hearing.)

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14