Category Archives: Sentencing

Appellate Principles, Sentencing

Case 000526

Posted on by Gary McCurdy

Error and/or relief

At sentencing, the trial court found the defendant, who was found guilty of assault with a deadly weapon and vandalism, was not a suitable candidate for probation and imposed a custodial sentence. As part of that sentence, the court issued an indefinite stay-away order barring the defendant from the specific address of the apartment complex where the victim lived. It was improper to issue a protective order, which must be stricken.

First Holding:

Claims that a sentence is unauthorized may be raised for the first time on appeal and should be corrected whenever a reviewing court identifies the error.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 382

Second Holding:

Section 136.2(a)(1), allows a trial court to issue protective orders during a criminal case. But courts have read that provision to allow protective orders only while the criminal action is pending. In response, the Legislature added subdivision (i) to section 136.2, which allows postconviction protective orders lasting up to 10 years, but only when the defendant is convicted of domestic violence, certain sexual offenses, street terrorism, or crimes requiring sex offender registration.

Outside of those categories, section 136.2 does not give the trial court statutory authority to impose the postconviction protective order. The order here was unauthorized on two independent grounds. First, it was indefinite in duration and not tied to the pendency of the criminal proceedings. The trial court denied probation, so the order was not authorized as a condition of probation. A postjudgment restraining order imposed under these circumstances falls outside the authority granted by section 136.2 and must be stricken. Second, the trial court never made a finding of good cause to believe that the defendant posed an ongoing risk of intimidating or dissuading the vicitm or anyone else at the complex.

Authority:

PEN 136.2

People v. Corrales (2020) 46 Cal.App.5th 283, 286

People v. Stone (2004) 123 Cal.App.4th 153, 159

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Third Holding:

A criminal protective order must also rest on a finding of good cause to believe that the defendant is likely to try to intimidate or dissuade a victim or witness. The fact that a victim was harmed or threatened with harm is not enough on its own.

Authority:

Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962

Elements of crime, Jury trial, Sentencing

Case 000525

Posted on by Gary McCurdy

Error and/or relief

Reversal of the conviction on one of the counts is called for because there is a reasonable probability that one of defendant’s acts improperly formed the basis of two convictions.

First Holding:

As to count 1, the jury found defendant not guilty of assault with a deadly weapon, but found him guilty of the lesser included offense of simple battery and found him guilty of injuring a dating partner (count 2). As to count 3, the jury found defendant not guilty of assault by means of force to cause great bodily injury but found him guilty of the lesser included offense of simple assault. The conviction for injuring a dating partner (count 2) and the simple assault conviction (count 3) are based upon the same conduct and, because the latter is a lesser included offense of former, he cannot be convicted of both.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 919 [simple assault is a necessarily included offense of infliction of a corporal injury (sec. 273.5)]

Second Holding:

The jury was not advised that they could not convict defendant of both injuring a dating partner and a simple assault based on the same act. The gist of the prosecution’s summation focused on the single act of throwing a rock that hit the victim. In view of the People’s arguments and the lack of instruction to the jury, it is reasonably probable that the same act formed the basis for defendant’s conviction for infliction of a corporal injury as well as the simple assault conviction. Accordingly, we reverse the simple assault conviction.

Authority:

People v. Cole (1982) 31 Cal.3d 568, 582 [if the evidence supported the verdict as to a greater offense then the conviction on that offense is controlling and the conviction on the lesser offense must be reversed]

Appellate Principles, Effective assistance of counsel, Fifth Amendment, Fines and fees, Sentencing

Case 000524

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error to increase the originally-imposed $300 restitution fine to $10,000.00. It was also error to fail to recalculate the defendant’s credit for time served.

First Holding:

Although defendant arguably has forfeited the claim of error because he did not object to the sentence below, we will reach the issue because he also contends his attorney was ineffective.

Authority:

People v. Daniels (2012) 208 Cal.App.4th 29, 31

Second Holding:

When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. Statutorily mandated restitution fines constitute punishment and there is no principled basis for excluding them from the rationale of Henderson. The restitution fine imposed pursuant to section 1202.4(b) cannot exceed the $300 originally imposed. Therefore, we remand the matter and direct the trial court to reduce the restitution fine to $300, as originally assessed.

Authority:

 

People v. Henderson (1963) 60 Cal.2d 482

People v. Jones (1994) 24 Cal.App.4th 1780, 1783, 1785

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Daniels (2012) 208 Cal.App.4th 29, 31-32

People v. Thompson (1998) 61 Cal.App.4th 1269, 1276 [court directed trial court to reduce increased section 1202.4 fine to amount originally assessed]

Third Holding:

A restitution fine under section 1202.4 constitutes punishment. It is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For felony convictions, the required fine is not less than $300 and not more than $10,000.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13

Fourth Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. As the trial court failed to recalculate the credit for time served, the matter must be remanded for the custody credits to be recalculated.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000522

Posted on by Gary McCurdy

Error and/or relief

In the sentencing of the defendant on two separate cases, the court erred in believing that consecutive terms were mandatory.

First Holding:

When considering a trial court’s sentencing decision, we apply an abuse of discretion standard of review. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court cannot properly exercise its informed discretion if it is unaware of its discretionary authority at the time a decision is being made. A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Hilburn (2023) 93 Cal.App.5th 189, 205

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Panozo (2021) 59 Cal.App.5th 825, 837

People v. McDaniels (2018) 22 Cal.App.5th 420, 42

Second Holding:

Forfeiture does not apply to claims that the trial court misapprehended its sentencing discretion.

Authority:

People v. Panozo (2021) 59 Cal.App.5th 825, 840

Third Holding:

The defendant was convicted by jury of a robbery he committed in 2024. When he committed this offense, he was on probation for another robbery, for which he was convicted in 2021. At the preliminary hearing for the 2024 robbery, the court revoked his probation for the 2021 robbery. At sentencing on both robberies, the court sentenced the defendant to four years for the 2024 robbery, and a consecutive term of one year for the 2021 robbery. In making its order, the court expressed its belief that consecutive sentencing was required under Penal Code section 667.

A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

When a defendant is placed on probation and imposition of sentence is suspended, as in this defendant’s case, the defendant does not begin serving a sentence until a sentence is later imposed after revocation of probation and the defendant is delivered into custody for that offense. Thus when the court sentenced the defendant for the 2024 robbery, he was not already serving a sentence on the 2021 robbery case. This is not the same situation as in Gonzalez, where the defendant was already serving a sentence because he had been sentenced for violating his probation orders and he was still awaiting trial on the new offense.

Authority:

PEN 667(c)(8)

PEN 669(a)

People v. Rosbury (1997) 15 Cal.4th 206, 210–211

People v. Gonzalez (2019) 39 Cal.App.5th 115, 121

Fourth Holding:

Where 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 court would have reached the same conclusion even it had been aware it had such discretion. It is apparent from the court’s comments in the record that it did not intend to impose the maximum possible sentence, as it imposed the low term and struck a prior serious felony. The case should be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Fines and fees, Probation Parole PRCS, Sentencing

Case 000521

Posted on by Gary McCurdy

Error and/or relief

The court improperly imposed a domestic violence fee, because that only applies to those granted probation, which the defendant was not, as he was sentenced to prison.

First Holding:

The requirement to make a $500 domestic violence payment is not authorized by section 1203.097, because the trial court denied probation. The judgment is modified to strike the $500 domestic violence payment.

Authority:

PEN 1203.097

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000520

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the defendant was entitled to have the trial court examine whether recent amendments under AB 333 to gang criminal activity statutes affected his conviction for carrying a loaded firearm in a public place by an active participant in a criminal street gang. Remanded.

First Holding:

Resentencing under section 1172.75 for a person serving a sentence containing a now-invalid prior prison term enhancement requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. When the trial court recalled defendant’s sentence under section 1172.75, it was effectively vacated. Once defendant’s sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Defendant, therefore, regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for purposes of Estrada. Under Estrada, ameliorative amendments to criminal statutes apply to all cases not final on appeal absent contrary legislative intent.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s] sentence effectively vacated his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163, 177 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

In re Estrada (1965) 63 Cal.2d 740, 744–745

Second Holding:

Effective January 1, 2022,AB 333 made several changes to the criminal street gang laws.

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 section 186.22, former subdivision (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 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 offenses 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.

And finally, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada.

Authority:

PEN 186.22

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

People v. Clark (2024) 15 Cal.5th 743, 753

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

Third Holding:

In determining whether a judgment is final for Estrada purposes, the finality inquiry focuses on whether the criminal prosecution or proceeding as a whole is complete, i.e., when the last word of the judicial department with regard to a particular case or controversy has issued.

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It is presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. AB 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

Fourth Holding:

Because AB 333 applies retroactively to all nonfinal judgments under Estrada, and defendant’s judgment is nonfinal by virtue of section 1172.75, defendant was entitled to the ameliorative effects of AB 333 at resentencing. The jury’s findings on the gang allegations made more than a decade prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Based on this record, we cannot conclude that error was harmless. Therefore, we remand for the trial court to determine, in the first instance, any effect the amendments have on defendant’s conviction on count 5 of an active participant in a criminal street gang carrying a loaded firearm in a public place.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396-400

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

Sentencing

Case: 000519

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for the trial court to reconsider whether to strike one of the defendant’s prior convictions.

First Holding:

The defendant contends that the trial court erred in denying his Romero motion to strike one of his strikes and sentencing him as a third strike offender because his two prior strike convictions for robbery were based on a single act. In a series of cases, our California Supreme Court has addressed how many strikes should be counted when a defendant has multiple convictions arising from related acts. In Fuhrman, the defendant had multiple strike convictions stemming from an incident in which he stole a car, collided with another car and brandished a gun at that car’s driver, and then forced his way at gunpoint into a truck and made the truck driver take him from the scene. Although the court held that qualifying strike convictions can be brought and tried in the same case and counted as separate strikes, the court left open whether the Three Strikes law allows separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654.

The court addressed that issue in Benson. In that case, the defendant entered an apartment and stabbed its occupant, resulting in strike convictions for residential burglary and assault with intent to commit murder. The court held that crimes sustained in one action and arising from the same facts are separate strikes, even if the crimes were closely connected and punishment on one had been stayed under section 654.

Next, Vargas held that two prior convictions arising out of a single act against a single victim cannot constitute two strikes under the Three Strikes law. The single act in Vargas was forcibly taking the victim’s car, which resulted in convictions for robbery and carjacking.

Finally, while this matter has been pending on appeal, our California Supreme Court issued Shaw, which involved two victims. In that case, the defendant had two prior convictions for gross vehicular manslaughter arising from an incident in which Shaw struck a car, killing two passengers. The court found that its rationale in Vargas applied, notwithstanding that multiple victims were involved.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Fuhrman (1997) 16 Cal.4th 930, 941

People v. Benson (1998) 18 Cal.4th 24, 26

People v. Vargas (2014) 59 Cal.4th 635, 637, 645

People v. Shaw (2025) 18 Cal.5th 1089, 1093

Second Holding:

In this case, the extent of the defendant’s participation in the two felonies alleged as prior strikes is not clear. Did he commit one act as an aiding and abetting getaway driver while others robbed two victims, or did he participate more directly in each of the robberies of two victims? Further, the trial court did not have the benefit of Shaw at the time of sentencing and it therefore may have applied the wrong legal standard, which constitutes an abuse of discretion. We therefore remand this matter to the trial court to reconsider the defendant’s Romero motion.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Amelioration, Plea bargains, Sentencing

Case 000518

Posted on by Gary McCurdy

Error and/or relief

While defendant was on probation with an upper term suspended sentence, section 1170 was amended to preclude imposition of the upper term in the absence of aggravating factors found true beyond a reasonable doubt by a jury or by stipulation. On revocation, the court ordered execution of the upper term sentence. The sentence is reversed and the matter remanded for further proceedings at which the defendant may waive or invoke the requirements of section 1170(b). If he invokes its requirements, and the court is unable to impose the upper term in compliance with 1170, and the people or the court do not acquiesce to a term lower than the upper, the court must set aside the plea restore the parties to the status quo.

(Gary note: In this opinion, the court notes that there was a stipulated sentence as part of the plea agreement, and alludes to the Stamp rule that if the court and prosecutor are not happy with the resentencing, the plea should be set aside, restoring the parties to their status quo ante. But section 1171, effective 1/1/2025, may put the kibosh on Stamps and that line of reasoning. It was not discussed in this case. I have run across at least one unpublished opinion that seems to agree with me, which I have summarized as Case 000792, but it’s not due for posting yet. In that case, the district attorney apparently did not file a petition for review, but has asked the Supreme Court to grant review on its own motion.

(I’m not sure why the DA did not file a petition for review, because its request for the Supreme Court to grant review on its own motion was filed well before the deadline for filing a petition for review. (Any petition must be served and filed within 10 days after the Court of Appeal opinion is final, per rule 8.500(e)(1), which is normally 30 days after the opinion is filed. So while there are exceptions when there is a shorter period for finality, the deadline for filing a petition for review is 40 days after the date of the opinion. But even if no party files a petition for review within the time allowed, the Supreme Court can grant review on its own motion within a later deadline–within 30 days after the opinion in the lower court becomes final, per rule 8.512(c).) As of the writing of this summary, the Supreme Court has extended its deadline to October 21, 2026.

(Essentially, though, the court in Case 000792 said that Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing, and modification of the sentence does not require setting aside the plea bargain. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

(In the context of dealing with ameliorative provisions (including but not limited to “sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75”), section 1171(c)(3) says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The appellate court in Case 000792 held that the trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement.)

First Holding:

SB 567 amended section 1170 to limit the trial court’s ability to impose the upper term by making the middle term the presumptive prison term unless specified circumstances exist. When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in section 1170(b)(2). 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.

Authority:

PEN 1170(b)

Second Holding:

The only question before us is an issue currently pending before the California Supreme Court: whether a defendant whose sentence was imposed pursuant to a stipulated plea agreement may seek relief under Senate Bill No. 567. This is an issue that has split the Courts of Appeal, including divisions within this court.

[Gary note:  The Mitchell case cited by the Court of Appeal as shown in Authority as on review was decided In May 2026, People v. Mitchell (2026) 19 Cal.5th 729.  The Supreme Court remanded the case to the Court of Appeal (which recently remanded it to the trial court) to allow the defendant to take advantage of the amelioration despite his stipulated sentence, but it followed its decision in Stamps that if the prosecution or the lower court is not happy with the modified judgment, the plea must be set aside and the parties restored to their status prior to the plea bargain.  

[But the Supreme Court’s Mitchell decision contains a footnote, which I lay out here:  “Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (sec.1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

[Section 1171 expressly applies to ameliorative statutes, and does not identify section 1170 as an ameliorative section, but it says its list of “such as” statutes is not a limitation to its application.  I suspect–and that’s ALL it is, just pure speculation–that the Supreme Court was not ready to deal with section 1171 so late in the Mitchell appeal, and would prefer to see it battled out in the superior courts and Courts of Appeal before it takes on the issue.  That way it would have the benefit of perhaps many different approaches before it has to reach the proper conclusion.]

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26, 2023, S278690 [same]

People v. Todd (2023) 88 Cal.App.5th 373, 376, review granted Apr. 26, 2023, S279154 [defendant entitled to remand]

People v. Fox (2023) 90 Cal.App.5th 826, 830 [same]

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1056, review granted Feb. 21, 2024, S283452 [same]

Third Holding:

We independently review issues of statutory construction. As ever in statutory interpretation, w]e begin with the text of the relevant provisions. If the text is unambiguous and provides a clear answer, we need go no further. If the language supports multiple readings, we may consult extrinsic sources, including but not limited to the legislative history and administrative interpretations of the language.

Authority:

People v. Fox (2023) 90 Cal.App.5th 826, 831 (review granted)

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057 (review granted) [Gary note: see my note in Second Holding]

Fourth Holding:

That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them. A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.

A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. These statutory provisions are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.

Authority:

PEN 1016.8

People v. Stamps (2020) 9 Cal.5th 685, 701

Fifth Holding:

The relevant question here is not whether the sentencing judge is bound by the parties’ stipulated sentence, but whether the defendant is entitled to the ameliorative effect of SB 567’s new sentencing provisions. The defendant is entitled to the benefit of the change in the law under section 1170. But because he agreed to the upper term in his plea bargain, if the court were to reduce his sentence to any lesser sentence, the People will have been denied the benefit of its bargain.

A limited remand is appropriate to allow the court to determine whether it may impose the upper term in compliance with the new provisions of section 1170. If it determines that it may, then the sentence of six years may be imposed. Otherwise, if the defendant declines to stipulate to factors in aggravation supporting the upper term, the plea bargain must be set aside and the parties restored to their status quo, unless the prosecution and the court are willing to accept the lower sentence.

Authority:

People v. Todd (2023) 88 Cal.App.5th 373, 380-382, review granted Apr. 26, 2023, S279154

People v. Stamps (2020) 9 Cal.5th 685, 707

Appellate Principles, Effective assistance of counsel, Evidence, Fifth Amendment, Sentencing

Case 000517

Posted on by Gary McCurdy

Error and/or relief

It was error to include in the restitution order reimbursement for expenses incurred by the victim that were not caused by the defendant’s criminal conduct.

First Holding:

The defendant concedes he forfeited his Fifth Amendment claim by failing to object during trial on this ground to the admission of the pretext call evidence, the prosecutor’s arguments and questions on his silence, and the adoptive admission jury instruction. We elect to address the issue in order to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to jury instruction forfeits appellate claim of error]

People v. Adanadus (2007) 157 Cal.App.4th 496, 512 [requiring timely objection to preserve prosecutorial misconduct claim]

People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [claim based on privilege against self-incrimination may be forfeited]

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Second Holding:

The police arranged a pretext call between the victim and the defendant, during which the defendant did not deny the victim’s accusations. That evidence was presented at trial as an adoptive admission. The defendant argued that it was a violation of his rights under the Fifth Amendment, because he had previously been advised by counsel to make no statements to the victim. The People’s emphasis on the presence or absence of government coercion fails to account for the rationale underlying adoptive admissions, which is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.

That inference is only justified where the person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.

But advice of counsel is one form of restraint that might bar a free response by a person accused of a crime and therefore may not give rise to an inference of acquiescence or guilty consciousness as an adoptive admission. An accused’s express invocation of the right to remain silent on the advice of counsel is precisely a circumstance that may lend itself to the inference that the accused’s silence in the face of accusations stems merely from the assertion of that right.

[Gary note on the rest of the story–the appellate court proceeded to conclude that under the actual facts of the case, it was not error to allow the evidence as an adoptive admission.  I have included this holding merely for its educational value, though it did not assist this defendant.]

Authority:

People v. Simmons (1946) 28 Cal.2d 699, 712, 715–716

People v. Riel (2000) 22 Cal.4th 1153, 1189

Third Holding:

A victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. The trial 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. The hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution, and no particular kind of proof evidence is required.

Authority:

PEN 1202.4

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

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The restitution power conferred by section 1202.4 in cases where a criminal defendant is sentenced to prison is not as broad as the court’s power to order restitution as a condition of probation, which need only be reasonably related to the crime of which the defendant was convicted or to future criminality. The victim’s mother’s expense incurred for paying for the defendant’s trip to a foreign country was entirely unrelated to the defendant’s criminal conduct, as was the victim’s rideshare share expenses on the day of the crime. Those portions of the restitution order must be stricken.

Authority:

People v. Martinez (2017) 2 Cal.5th 1093, 1101

Sentencing, Sixth Amendment, Standard of review

Case 000515

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in sentencing him to the upper term when no aggravating circumstances were alleged in the information, he did not admit any aggravating circumstances, and no factfinder found any true beyond a reasonable doubt.

First Holding:

Under section 1170(b)(2), the court may impose the upper term only when aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or judge. That procedure was not followed here. A defendant, by entering into a plea agreement that includes the upper term as the maximum sentence, does not implicitly admit that his conduct could support that term. Specifically, while a plea agreement constitutes an admission to all the elements of the admitted offenses, it does not constitute an admission to any aggravating circumstance.

Authority:

PEN 1170(b)(2)

People v. French (2008) 43 Cal.4th 36, 48

People v. Hoffard (1995) 10 Cal.4th 1170, 1177

Second Holding:

Accordingly, the court here erred in sentencing the defendant to the upper term. Given the total absence of any admitted or proven aggravating circumstances, we cannot conclude this error was harmless. A remand for resentencing is thus required.

Authority:

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

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

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

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000513

Posted on by Gary McCurdy

Error and/or relief

It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.

First Holding:

In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F

or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

Second Holding:

As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346

Third Holding:

With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]

People v. Smith (1983) 33 Cal.3d 596, 599

Fourth Holding:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.

Authority:

Cal. Const., art. III, sec. 3

PEN 1203

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Fifth Holding:

It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 905