Category Archives: Sentencing

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000833

Posted on by Gary McCurdy

Error and/or relief

The trial court’s true findings on three of the four strike priors and three of the four prior serious felony enhancements must be vacated and the matter remanded to the court for any retrial of these allegations, because there is insufficient evidence to support the finding defendant’s three 2016 convictions qualify as serious or violent felonies for purposes of three of the four strike priors and three of the four prior serious felony enhancements under the 2022 amendments to section 186.22 enacted by AB 333.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: if a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7 defines “serious felony” to include, among other things, any felony offense that would also constitute a felony violation of section 186.22.

Authority:

PEN 1170.12

PEN 1192.7(c)(28)

Second Holding:

Section 186.22(a) makes it unlawful to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and to willfully promote, further, or assist in felonious criminal conduct by members of that gang.

Section 186.22(b) provides for enhancements if a person commits a felony for the benefit of such a gang. Section 186.22 also defines the terms criminal street gang and pattern of criminal gang activity as well as benefitting a gang.

Authority:

PEN 186.22

Third Holding:

Effective January 1, 2022, AB 333 narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas former section 186.22(f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a ‘criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offense commonly benefitted a criminal street gang and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

PEN 186.22

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

Fourth Holding:

Fletcher held that, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

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, 583, 607

Fifth Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1067

Sixth Holding:

The inquiry concerning whether a prior conviction qualifies as a serious felony is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. McGee (2006) 38 Cal.4th 682, 706

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795)

Abstracts and Minutes, Sentencing

Case 000832

Posted on by Gary McCurdy

Error and/or relief

There are several errors in the minute order that must be corrected.

Holding:

The minute order incorrectly states that the defendant pleaded no contest to a violation of Health and Safety Code section 11378. In fact, the defendant admitted this prior conviction, but she pleaded no contest to a violation of Penal Code section 29800(a)(1). The minute order further states that felony probation was denied when, in fact, the trial court placed the defendant on felony probation. We order the minute order to be corrected.

Authority:

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 954

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

Case 000831

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

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

Authority:

PEN 1465.9(d)

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

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

Second Holding:

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

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

Authority:

PEN 2900.1

PEN 2900.5

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

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

Duty of the court, Sentencing

Case 000830

Posted on by Gary McCurdy

Error and/or relief

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

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

Holding:

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

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

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

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

Authority:

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

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

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

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

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.

First Holding:

A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.

Authority:

PEN 1025(b)

PEN 1158

People v. Epps (2001) 25 Cal.4th 19, 25

Second Holding:

Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]

Third Holding:

There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.

The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.

And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.

Authority:

People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17

People v. Chambers (2002) 104 Cal.App.4th 1047

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386

Fourth Holding:

There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.

Authority:

People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]

People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]

Monge v. California (1998) 524 U.S. 721

Appellate Principles, Sentencing, Sixth Amendment

Case 000826

Posted on by Gary McCurdy

Error and/or relief

Resentencing is required because the trial court imposed an upper term sentence based on aggravating circumstance findings to which a Sixth Amendment jury trial right attached. As appellant did not personally waive his jury trial right with respect to those factors, their consideration constitutes a Sixth Amendment violation.

First Holding:

The federal Constitution’s Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. This includes any fact, beyond the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum.

Thus, under California’s determinate sentencing law, 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. 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:

U.S. Const., 6th Amend.

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

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

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

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

Second Holding:

Wiley addressed just how broadly the concept of the fact of a prior conviction is to be understood and the extent of the Almendarez-Torres exception. Wiley examined this question under Erlinger.

In Erlinger, the United States Supreme Court considered a trial court’s authority to find whether a defendant’s convictions had occurred on separate occasions. The high court described the Almendarez-Torres prior conviction exception as narrow, and one that permitted judges to find only the fact of a prior conviction: Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

The high court observed that determining whether offenses were committed on different occasions may be a fact-laden task involving whether the offenses were committed close in time, location, and whether they were intertwined in purpose and character.

Thus, in determining whether convictions occurred on separate occasions, the high court observed the trial court would have to do more than identify the defendant’s previous convictions and the legal elements required to sustain them, which is more than Almendarez-Torres allows.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079

Almendarez-Torres v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 821, 834-835, 838

Third Holding:

Wiley concluded that an aggravating circumstance finding that the defendant’s prior convictions are of increasing seriousness, and that the defendant’s performance on probation had been unsatisfactory requires a jury determination as to their truth.

Determining the increasing seriousness of a prior conviction requires a qualitative assessment of the offenses time, location, character, and purpose. Although the law is still developing, the numerosity of prior convictions is a factor for which a jury trial right under Wiley has been recognized.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Erlinger v. United States (2024) 602 U.S. 821, 840

People v. Wright (2025) 113 Cal.App.5th 832, 847 [recognizing the defendant was entitled to a trial by jury on the aggravating factor of whether he had suffered numerous prior convictions]

Fourth Holding:

A waiver of the right to a jury trial must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct.

Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Here, because appellant did not personally waive his right to a jury trial nor did he admit these sentencing factors, his Sixth Amendment jury trial right was violated.

Authority:

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

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

This error was prejudicial. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

A sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Numerosity of the prior convictions is a comparative and qualitative factor that makes it 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. Wiley (2025) 17 Cal.5th 1069, 1087, 1090

People v. Lynch (2024) 16 Cal.5th 730, 743, 775

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

Sixth Holding:

The defendant raised other arguments regarding selection of the upper term that we need not address, as he may take them up in the trial court on remand. He did not raise them at hearing from which this appeal was taken. The forfeiture doctrine is a well-established procedural 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.

Notwithstanding any forfeiture at the 2025 sentencing hearing, however, appellant will have an opportunity to raise these claims upon remand for resentencing so that the trial court may consider them in the first instance.

Authority:

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

Sentencing

Case 000823

Posted on by Gary McCurdy

Error and/or relief

It was error to stay the sentence on the use of firearm enhancement and the prior serious felony in an effort to show leniency. The proper procedure requires the court to strike them, not stay them.

Holding:

The trial court imposed and stayed both the remaining section 12022.53(b) and (c) firearm enhancements as to counts 1 and 2, and the serious felony prior enhancement as to count 2. This was an unauthorized sentence. The record indicates that the trial court did not intend to punish the defendant for these additional enhancements. Because a trial court has no authority to stay an enhancement based on its discretion, the court imposed a legally unauthorized sentence. We exercise our authority under section 1260 to modify the judgment by striking this unauthorized sentence.

Authority:

PEN 1260

People v. Bay (2019) 40 Cal.App.5th 126, 139 [The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.]

Amelioration, Sentencing

Case 000822

Posted on by Gary McCurdy

Error and/or relief

On the defendant’s resentencing hearing under section 1172.75, the court erroneously denied the defendant’s petition, concluding that he was not eligible because the now-invalid enhancement for a prior prison term had been imposed but stayed.

Holding:

While this appeal was pending, the Supreme Court issued its opinion in Rhodius, in which it held that a person whose sentence included a now-invalid enhancement for a prior prison term is eligible for resentencing under section 1172.75, even if the enhancement was stayed at the initial sentencing.

Authority:

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

Eighth Amendment, Fines and fees, Sentencing

Case 000820

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering defendant to pay ancillary costs and to reimburse the police department for the SART [Sexual Assault Response Team] examination costs without considering his ability to pay and while the amount of victim reimbursement had yet to be determined. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

Because defendant did not obtain a certificate of probable cause, our review is limited to issues occurring after entry of the plea that do not affect its validity.

Authority:

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)(3)

People v. Mendez (1999) 19 Cal.4th 1084, 1096

Second Holding:

While this appeal was pending, our Supreme Court decided Kopp, which held that (1) a defendant may challenge the imposition of a punitive fine (e.g., restitution fines under Penal Code section 1202.4) under the excessive fines provisions of the United States and California Constitutions; and (2) equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing ancillary costs (e.g., court facilities fees under Government Code section 70373 and court operations fees under section 1465.8).

Because defendant did not have the benefit of Kopp’s specific reasoning at the time of his sentencing, we conclude he must be afforded the opportunity to assert an excessive fine objection and develop a factual record on the considerations relevant to that claim.

Authority:

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

Third Holding:

The touchstone of the excessive fines inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.

Four considerations inform that inquiry: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Fourth Holding:

As for the $30 court operations fee and the $40 court facilities fee, Kopp held that, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing ancillary costs in criminal cases.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Fifth Holding:

Here, the trial court erroneously denied defense counsel’s request for an ability to pay hearing. Although some courts have found such error harmless where the record otherwise reflects the defendant’s earning capacity, we decline to do so here, as the People do not contend the record is sufficient to make such a determination in this case.

Furthermore, an ability to pay hearing is also required under section 1203.1h [regarding the cost of medical examinations incurred by law enforcement for the collection and preservation of evidence in sexual assault cases].

Authority:

PEN 1203.1h(b)

People v. Aviles (2019) 39 Cal.App.5th 1055, 1075–1077

People v. Johnson (2019) 35 Cal.App.5th 134, 139–140

Effective assistance of counsel, Sentencing, Standard of review

Case 000819

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This opinion actually contained no relief for the defendant because there was no harm, therefore no foul. I.e., Harmless error. But I have included for some important principles that the defendant prevailed on, save the need to show prejudice.)

The firearm and great bodily injury findings on the defendant’s murder convictions must be reversed, though it does not affect his sentence because the court did not impose sentence on those enhancements. His counsel was ineffective for failing to object to the dual use of facts at sentencing, but the error was harmless because the court cited and relied on several other properly established factors in aggravation and made it clear that the court intended to impose the upper term.

First Holding:

The jury found the defendant personally inflicted great bodily harm within the meaning of section 12022.7(a) when he committed each of the counts of murder. But section 12022.7 specifically states that it does not apply to the crime of murder. We reverse those findings, but the sentence remains unaffected because the court did not impose punishment for those enhancements.

Authority:

PEN 12022.7(g)

Second Holding:

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel’s performance was deficient, and that the deficiency prejudiced the defense. On direct appeal, a finding of deficient performance is warranted where (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

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

Authority:

People v. Johnsen (2021) 10 Cal.5th 1116, 1165

Third Holding:

A trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.

We agree with the defendant that there is no conceivable reason for his counsel to have failed to raise this point in the trial court.

The law prohibiting the dual use of facts for an enhancement and to aggravate a sentence is clear, and the People do not dispute that it barred the court from relying on the firearm and great bodily injury aggravating circumstances to impose the upper term on count 10. The defendant had nothing to lose by raising this point and could only face a longer sentence by allowing the court to consider more aggravating circumstances than were proper.

Authority:

PEN 1170(b)(5)

Rules of Court, rule 4.420(g)

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

Establishing prejudice for a claim of ineffective assistance of counsel requires a defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

The defendant fails to establish prejudice because the record clearly indicates that the trial court could and would have imposed the same sentence even without the additional aggravating circumstances. A trial court may impose an upper-term sentence based on even a single aggravating factor.

Because the trial court made every possible choice to lengthen the term of the defendant’s sentence, well beyond the limit of what the defendant could be physically capable of serving [more than 200 years], the trial court left no doubt that it would have imposed the same upper term on count 10 even without two of the aggravating circumstances.circumstance.

Authority:

In re Gay (2020) 8 Cal.5th 1059, 1086

People v. Lynch (2024) 16 Cal.5th 730, 764

Sentencing, Sixth Amendment, Standard of review

Case 000818

Posted on by Gary McCurdy

Error and/or relief

The trial court impermissibly and prejudicially relied on aggravating factors not found true by a jury to sentence the defendant to the upper term on the assault count. The defendant is also entitled to conduct credts in addition to his actual presentence time in custody.

First Holding:

The People presented certified documents of five prior felony convictions. The certified documents showed that appellant had served a prison term for the 2002 convictions. The trial court found the People proved two aggravating factors beyond a reasonable doubt: that appellant’s prior convictions were numerous or of increasing seriousness, and that appellant had served a prior prison term. At sentencing, the trial court relied on these two factors in imposing the upper term on the assault count.

This was error, as the proposed aggravating factors should have been presented to a jury for proof beyond a reasonable doubt, if not stipulated to by the defendant.

Under the federal constitution, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

When the constitutional right to jury trial is involved, there must be an express waiver. It is undisputed that appellant made no such express waiver in this case. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1087

People v. French (2008) 43 Cal.4th 36, 47

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

Second Holding:

With respect to numerosity, appellant was convicted of five offenses over a period of 18 years, with an additional 22 years elapsing between the most recent prior offense and the instant offense. Appellant was [more than 60] years old at the time of trial. We cannot conclude beyond a reasonable doubt that a jury would have found appellant’s prior crimes numerous.

While the evidence may have been sufficient to support a finding that the aggravating factor was true, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [Three robberies in the course of 49 years of life may strike some jurors as an obviously numerous number of convictions, but we are unsure 12 people unanimously would agree with this evaluation beyond a reasonable doubt]

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

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

Third Holding:

As for increasing seriousness, under current case law, the determination that a defendant’s prior convictions are of increasing seriousness may be made by reference to the range of punishment provided by statute for each offense. Or it may be determined by a comparison of the offenses respective elements.

While a jury certainly could find increasing seriousness, we are not persuaded beyond a reasonable doubt that they would have, particularly in light of our Supreme Court’s recent caution regarding increasing seriousness that the determination is a comparative and qualitative one. These realities make it 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. Wiley (2025) 17 Cal.5th 1069, 1090

Fourth Holding:

The defendant is entitled to 166 days of presentence conduct credit in addition to the 167 days of actual credit awarded by the trial court.

Authority:

PEN 4019(f)