Category Archives: Sentencing

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First 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. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Amelioration, Sentencing

Case: 000278

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because his prior prison term enhancements were not executed. This was error.

Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

PEN 1172.75

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000277

Posted on by Gary McCurdy

Error and/or relief

AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.

First Holding:

AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 25

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

People v. Lopez (2025) 17 Cal.5th 388, 395–396

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

People v. Sek (2022) 74 Cal.App.5th 664, 667

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

People v. Jones (2012) 54 Cal.4th 350, 353

Sentencing, Standard of review

Case: 000274

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the section 1172.6 petition for recall of sentence based on its conclusion that the defendant was ineligible for relief because there was substantial evidence that he was convicted on a still-valid theory of murder.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of section 190.2—that is, the statute defining the felony-murder special circumstance.

Authority:

SB 1437

PC 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 967

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

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

Second Holding:

The trial court used an incorrect legal standard to deny the petition at the prima facie stage. The court erred by applying the substantial evidence standard in concluding defendant was ineligible for relief. The statute does not permit a court to deny a petition at the prima facie stage based on a determination that substantial evidence shows defendant is ineligible for relief. Instead, at this stage, the defendant need only make a prima facie case for relief. In this inquiry, 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.

Authority:

PEN 1172.6

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

Third Holding:

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.

Authority:

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