Category Archives: Sentencing

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000397

Posted on by Gary McCurdy

Error and/or relief

We vacate the true finding that the defendant suffered a prior strike, in light of the retroactivity of AB 333’s amendments to section 186.22 regarding gang criminal activity. The matter is remanded for further proceedings, which may include retrial of the prior strike allegation.

First Holding:

Any felony defined in section 1172.7(c) is a serious felony, and any serious felony is a strike under section 667 and section 1170.12. section 1172.7(c)(28) defines as a serious felony any conviction of section 186.22 and any felony enhanced under 186.22’s provisions.

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1)

PEN 1170.12(b)(1)

PEN 186.22

People v. Briceno (2004) 34 Cal.4th 451, 462

Second Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed 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. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

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

Third Holding:

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. Application of AB 333 in this manner does not unconstitutionally amend any ballot initiative. Thus, 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.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Duty of the court, Fines and fees, Sentencing

Case: 000395

Posted on by Gary McCurdy

Error and/or relief

Because the defendant requested the court impose the minimum restitution fine and the court did not consider his ability to pay and imposed fines exceeding the statutory minimum, we reverse and remand solely for reconsideration of imposition of the fines.

First Holding:

Section 1202.4(b) requires trial courts to impose a restitution fine when a defendant is convicted of a felony unless it finds compelling and extraordinary reasons for not doing so. For felony convictions, the required fine is not less than $300 and not more than $10,000. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine of $300. And for those defendants whose sentence includes a period of parole, the trial court must impose a parole revocation restitution fine in the same amount. The latter fine shall be suspended unless the person’s parole is revoked.

Authority:

PEN 1202.4

PEN 1202.45

Second Holding:

A trial court must conduct an ability to pay hearing before imposing a restitution fine that exceeds the statutory minimum of $300. As in Kopp, the trial court here imposed restitution and parole revocation fines exceeding $300 without conducting an ability to pay hearing. And there is no affirmative evidence indicating that the trial court knew that defendant’s ability to pay was a factor in determining the fine to be imposed. Nor did the trial court indicate that it considered counsel’s objection that the defendant could not afford to pay fines exceeding $300. The trial court only stated that counsel’s “comments are noted for the record.” Thus, we cannot conclude the trial court considered the defendant’s financial wherewithal in deciding to impose more than the minimum fine. We reverse and remand for the trial court to conduct an ability to pay hearing because the imposed fines exceeded the minimum.

Authority:

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

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Abstracts and Minutes, Fines and fees, Sentencing

Case 000394.txt

Posted on by Gary McCurdy

Error and/or relief

Having sentenced the defendant to a term of life without the possibility of parole, it was error to impose the parole revocation restitution fine. The abstract of judgment must be corrected to conform to the oral pronouncement regarding the sentence imposed on the prior convictions.

First Holding:

Because defendant was also sentenced to LWOP, the court should not have imposed the parole revocation restitution fine.

Authority:

PC 1202.45

People v. McInnis (2021) 63 Cal.App.5th 853, 866-867

Second Holding:

The abstract of judgment inaccurately reflects the total number of years imposed for the prior serious felony enhancements requiring correction. The defendant’s determinate abstract of judgment inaccurately reflects a total of 25 years of prior serious felony enhancements, broken out as 20 years on first line and 5 years on the second line. The trial court imposed four five-year prior serious felony enhancements for a total of 20 years on the murder count. We will direct the trial court to prepare an amended determinate abstract of judgment to correct this mathematical error.

[GARY NOTE: The court did not cite any authority for correction of the abstract of judgment, but plenty exists. The court did not cite the case, but it could have cited.]

Authority:

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

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

People v. Jones (2012) 54 Cal.4th 1, 89

Elements of crime, Sentencing

Case: 000390

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of five counts of first degree murder and found true five multiple-murder special circumstances (Pen. Code, § 190.2, subd. (a)(3)). The trial court sentenced him to five consecutive state prison terms of life without parole for the murder counts. It was error to submit to the jury more than one multiple-murder special circumstance allegation of multiple murder, and four must be stricken. However, this does not affect the sentence because the trial court properly applied the special circumstance to impose life without parole for all five murder counts.

First Holding:

The jury should have found only one multiple-murder special circumstance rather than five.

Authority:

PEN 190.2(a)(3)

People v. Mickey (1991) 54 Cal.3d 612, 678

People v. Garnica (1994) 29 Cal.App.4th 1558, 1563–1564

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000388

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.

First Holding:

When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

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

Second Holding:

AB 333’s changes to section 186.22 apply retroactively under Estrada.

Authority:

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

Third Holding:

AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: 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. These changes also apply to the crime of active participation in a criminal street gang.

Authority:

PEN 186.22

People v. E.H. (2022) 75 Cal.App.5th 467, 479

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

People v. Rojas (2023) 15 Cal.5th 561, 565

Sentencing, Sixth Amendment

Case: 000387

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in using aggravating factors that were neither found true beyond a reasonable doubt by a trier of fact nor admitted by the defendant.

First Holding:

Section 1170(b)(1) through (3) provides the court may impose the upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term. As amended, section 1170(b) altered the trial court’s sentencing discretion and created a presumption against the upper term, which may be overcome only if the required facts are properly proven and the trial court concludes the term is justified. Unless a defendant stipulates to the facts, or waives his or her jury trial right, that aggravating factfinding role now resides solely with the jury The trial court may also consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 760, 768, 773

Second Holding:

A violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Accordingly, a defendant is entitled to reversal and remand unless we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt under Chapman as to every aggravating fact the trial court used to justify an upper term sentence. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

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

Eighth Amendment, Sentencing

Case: 000386

Posted on by Gary McCurdy

Error and/or relief

A court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment. We therefore remand to the trial court to conduct an inability to pay hearing as to those assessments.

First Holding:

Under Kopp, a court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment.

Authority:

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

Second Holding:

Restitution fines and parole revocation fines under sections 1202.4 and 1202.45a), respectively, are punitive fines. Court operations assessments and court facilities assessments, under section 1465.8(a)(1) and Government Code section 70373(a)(1), respectively, are ancillary costs and not punishment. As to punitive fines, subject to the Eighth Amendment, a court may impose a nonexcessive fine as punishment. therwise, an excessive fines analysis applies to punitive fines imposed in excess of the minimum. Because the trial court here imposed punitive fines in the minimum amounts of $300 and stayed the parole revocation fine, they are not subject to an inability to pay hearing, as the defendant concedes.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-15

Third Holding:

However, ancillary costs do implicate equal protection principles. The court operations and facilities assessments are ancillary costs intended to raise funds for the courts. A criminal defendant cannot avoid the imposition of these costs regardless of indigency. By contrast, an indigent civil litigant may have similar fees waived entirely. Where the Legislature has already determined that both criminal defendants and civil litigants should be charged similar amounts for the same reasons, there appears no rational basis to deny only indigent criminal defendants the ability to avoid those costs. Accordingly, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Therefore, the trial court here should have considered the defendants’s inability to pay before imposing the $40 court operations assessment under section 1465.8(a)(1) and the $30 criminal conviction assessment fee under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 18, 28-29, 30

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000385

Posted on by Gary McCurdy

Error and/or relief

The minute order and abstract of judgment erroneously indicates that the court imposed the parole revocation fine (PEN 1202.45) on the defendant, who was sentenced to a term of life without the possibility of parole. Because the parole revocation fine cannot be imposed on person sentence to LWOP, it must be stricken.

First Holding:

The trial court should not have imposed the challenged fines and respectfully request the court modify the judgment by striking them. The abstract must be corrected.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181–1182, 1185 [Section 1202.45 indicates that it is applicable to a person .whose sentence includes a period of parole]

Second Holding:

The defendant contends he is entitled to an additional day of actual presentence custody credit. The People concede he is correct. Although the defendant did not object at trial, forfeiture of sentencing only occurs when the alleged error involved an exercise of discretion. Because the calculation of credits is purely mathematical, his failure to object at trial does not preclude this court from correcting the error.

Authority:

People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139

Amelioration, Sentencing

Case: 000384

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for the trial court to determine whether the defendant’s 2010 conviction still constitutes a serious felony and strike in like of the application of AB 333.

Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed 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. 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.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 353

In re K.F. (2009) 173 Cal.App.4th 655, 660

People v. McCullough (2013) 56 Cal.4th 589, 596

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

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

People v. Flores (2020) 9 Cal.5th 371, 432

Amelioration, Retroactivity, Sentencing

Case: 000382

Posted on by Gary McCurdy

Error and/or relief

The court accepted the defendant’s admission to a single prior serious felony conviction and a prior strike conviction.These admissions were based on the defendant’s 2010 conviction for assault with a deadly weapon with a gang enhancement. The court sentenced the defendant as a second striker based on his admission that his 2010 conviction of aggravated assault with a gang enhancement constituted a strike. In light of AB 333’s modifications to the elements of PC 186.22 regarding gang criminal activity, the People concede, and we agree, that the defendant’s two-strike sentence must be vacated and the matter remanded for a possible retrial of his prior conviction allegations.

Holding:

AB 333 (2021–2022 Reg. Sess.) increased the evidentiary requirements for proving gang offenses and enhancements by amending section 186.22. The defendant’s prior convictions were based on his admission to the elements of section 186.22 as it read at the time of his plea. At that time, the prosecution was not required to prove—and the defendant did not admit—the elements newly required under AB 333. These heightened requirements apply when assessing whether pre–AB 333 convictions may be used for certain sentencing purposes.

Because the defendant’s prior convictions predated AB 333, the record does not establish they satisfy the amended statute’s more stringent requirements, and because this case is not yet final, the parties agree that the trial court’s true findings on the prior strike and serious felony enhancement must be vacated and the matter remanded for resentencing. If the prosecution elects to retry those allegations, the trial court must adjudicate them applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 608