Category Archives: Sentencing

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.]

Amelioration, Sentencing, Vicarious liability

Case 000064

Posted on by Gary McCurdy

Error and/or relief

We conclude that the failure to appoint counsel and hold a prima facie hearing on the first and second degree murder convictions was harmless, but the same cannot be said with respect to his attempted murder conviction. We thus reverse the denial of the petition as to that count and remand for further proceedings, in line with People v. Patton (2025) 17 Cal.5th 549. Custody credits must be updated.

First Holding:

Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

SB 1437

SB 775

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

Second Holding:

The instructions that guided the verdicts did not include all the elements of direct aiding and abetting liability for attempted murder. First, the instructions did not require the jury to find that the defendant had the specific intent to kill. the failure to identify a specific target crime while instructing with CALJIC No. 3.02 broadened the reach of the natural and probable consequences doctrine to include liability for aiding and abetting other unspecified criminal behavior. Indeed, the Prettyman court explained that omitting the element of the instruction identifying the target crime is error because it impermissibly allows the jury to convict the defendant of murder based on its belief that the defendant intended to assist and/or encourage unspecified nefarious conduct of which murder was a natural and probable consequence.

Authority:

People v. McCoy (2001) 25 Cal.4th 1111, 1118 [a defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]

People v. Prettyman (1996) 14 Cal.4th 248, 268

Estelle v. McGuire (1991) 502 U.S. 62, 72 [reversible error in failing to identify a target offense if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution]

Third Holding:

When a sentence is modified while defendant is serving the sentence, the trial court must update defendant’s actual custody credits up to that point.

Authority:

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