Category Archives: Sentencing

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

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

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Amelioration, Retroactivity, Sentencing

Case 000946

Posted on by Gary McCurdy

Error and/or relief

The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.

First Holding:

AB 333 (2021-2022 Reg. Sess.) amended section 186.22 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.

After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, with regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28).

Authority:

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

People v. Fletcher (2025) 18 Cal.5th 576, 58

Second Holding:

The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.

The current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.

The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 606-607

Third Holding:

The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.

Authority:

PEN 1382(a)(2)

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

People v. Watts (2006) 131 Cal.App.4th 589, 597-598

Amelioration, Retroactivity, Sentencing

Case 000945

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the defendant’s prior conviction for gang participation constituted a prior strike conviction within the meaning of the Three Strikes law. The true findings on the prior strike conviction and prior serious felony conviction are vacated and the case is remanded.

First Holding:

The trial court agreed with the prosecution that AB 333 was not before the court for consideration at the trial on whether the defendant suffered a prior strike conviction and a serious felony conviction. he court declined to consider the effect of AB 333 on the prior conviction and found true that the defendant had suffered a prior strike conviction and a prior serious felony conviction.

This was error. AB 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony. The true findings that the defendant suffered a prior strike conviction and a prior serious felony conviction are vacated and the matter is remanded.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Second Holding:

On remand, if the People decide not to retry the enhancements, or at the conclusion of such a retrial, Jones will be entitled to a full resentencing. The court has a duty to ensure that all components of a sentence are authorized by the law and the facts at the time any new sentence is imposed.

Authority:

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.]

People v. Walker (2021) 67 Cal.App.5th 198, 206

 

Sentencing

Case 000944

Posted on by Gary McCurdy

Error and/or relief

The jury convicted the defendant of grand theft of personal property and embezzlement by a clerk for stealing money from his employer. One of the convictions must be vacated, because they constitute different statements of the same offense.

First Holding:

The was improperly convicted of two theft offenses (grand theft and embezzlement by a clerk) in violation of section 954 because they were different statements of the same offense. Convictions for both grand theft by larceny (sec. 484(a)) and embezzlement (sec. 503) based on the same course of conduct cannot stand under section 954.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 635, 649-651

Second Holding:

Appellate courts have employed different approaches for remedying a section 954 violation.

Under the circumstances of this case, we deem it appropriate to follow the Shiga approach. We will therefore reverse the judgment and remand the matter to the trial court with instructions to reinstate the conviction on one of the two counts to be selected by the People, then resentence the defendant on only a single count of conviction.

At the resentencing, any fees imposed by the court must also reflect the appropriate amounts for only a single count of conviction.

Authority:

People v. Shiga (2019) 34 Cal.App.5th 466, 481, 483–484 (Shiga) [reversing two duplicative arson convictions and remanding for resentencing with instructions to trial court to reinstate the conviction on the one selected by the People]

People v. Coyle (2009) 178 Cal.App.4th 209, 217–218, 219 [consolidating three duplicative special circumstance murder counts into single count, reversing and vacating the other two murder convictions, and affirming the judgment as modified]