Category Archives: Sentencing

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

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

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

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. One factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

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

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

People v. Myers (1999) 69 Cal.App.4th 305, 310

Amelioration, Sentencing, Standard of review, Statutory interpretation

Case 000903

Posted on by Gary McCurdy

Error and/or relief

A defendant sentenced to LWOP is not rendered ineligible for relief under section 1172.75 unless the person has been convicted of a sexually violent offense.

First Holding:

In 2021, the Legislature declared legally invalid all prior-prison-term sentencing enhancements imposed pursuant to Penal Code section 667.5(b) before January 1, 2020, except in cases involving terms for sexually violent offenses. Section 1172.75 established a procedure for resentencing individuals serving a term for a judgment that includes such enhancements.

Three years later, the Legislature amended the statute to preclude resentencing for an individual who has been convicted of a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole (LWOP).

Authority:

PEN 1172.75(f)

Second Holding:

The defendant was sentenced to LWOP, but has not been convicted of any sexually violent offense. Having examined the text and the legislative history of section 1172.75(f), we conclude the Legislature intended to exclude from resentencing only those individuals who were convicted of a sexually violent offense and sentenced to death or LWOP.

We review questions of statutory interpretation de novo. When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation.

We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided.

The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

People v. Cornett (2012) 53 Cal.4th 1261, 1265

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

People v. Robinson (2026) 120 Cal.App.5th 516, 522, review granted July 15, 2026, S297048

Third Holding:

Our colleagues in the Fifth District Court of Appeal in Robinson,recently considered how to interpret section 1172.75(f). The court first observed that the ordinary and usual usage of ‘and’ is as a conjunctive, meaning an additional thing, also, or plus.

Further, the Legislature had used the term “and” and “or” in different parts of subdivision (f), which suggested that the Legislature understood the difference between the typically conjunctive “and” and the typically disjunctive “or.” It therefore appeared the challenged portion of subdivision (f) was intended to be construed conjunctively to exclude an individual who has been convicted of a sexually violent offense and sentenced to death or a life term without the possibility of parole.

The Robinson court further noted that even if it were to assume the plain language of section 1172,75(f) was ambiguous as to whether it should be read conjunctively or disjunctively, the legislative history supported a conjunctive interpretation.

As the plain meaning of the text and the legislative history both support a narrow reading of section 1172.75(f), we agree with the court’s holding in Robinson and find that section 1172.75(f) applies only to individuals serving a sentence of death or LWOP who are also convicted of a sexually violent offense as defined by Welfare and Institutions Code section 6600(b). Because petitioner was not convicted of a sexually violent offense, he is eligible for recall and resentencing under section 1172.75.

Authority:

People v. Robinson (2026) 120 Cal.App.5th 516, 524-526, review granted July 15, 2026, S297048

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Probation Parole PRCS, Sentencing

Case 000901

Posted on by Gary McCurdy

Error and/or relief

A condition of probation must be modified, as it is not sufficiently clear on what exact conduct is proscribed.

First Holding:

Probation condition number 48 provides: “You shall not associate with any person known to you as a gang member, and you shall not frequent any area where gang members are known to congregate, or areas known for gang-related activity.” The defendant argues the terms frequent and areas known for gang-related activity are unconstitutionally vague.

Authority:

In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [probation condition that the minor not frequent any areas of gang related activity was objectionable because the verb ‘frequent’ would be especially challenging to understand; ‘frequent’ should be replaced with “visit”]

In re Victor L. (2010) 182 Cal.App.4th 902, 913–914 [probation condition prohibiting minor from being in areas known for gang-related activity was impermissibly vague in that it does not provide notice of what areas the minor may not frequent or what types of activities he must shun]

Second Holding:

Under the void for vagueness doctrine, based on the due process concept of fair warning, an order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. The doctrine invalidates a condition of probation so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910

Third Holding:

In Victor L., we considered a similar probation condition that required the minor to stay away from areas known by him for gang-related activity. We found the condition as written, without further specificity, was not sufficiently clear to put the minor on notice of the prohibited conduct.

However, we declined to remand the matter to the trial court to reform the probation condition, observing, that to require the judge in each probation order to specify exactly which areas are forbidden to the individual gang member would impose an undue burden on the judiciary.

Instead, we elected to modify the condition of probation to provide for the probation officer to notify the minor of the areas he must avoid, as this approach was implied in law in order to avoid a claim of unconstitutional vagueness. We modified the probation term to read in relevant part, “The Minor shall not be in areas known by Minor for gang-related activity (or specified by his probation officer as involving gang-related activity).

Similarly here, we will modify the condition to read: “You shall not associate with any person known to you as a gang member, and you shall not visit any area where gang members are known by you to congregate or any area known by you for gang-related activity (or as designated by your probation officer), unless you have prior authorization from your probation officer.”

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 913, 916-918, 931-932

In re H.C. (2009) 175 Cal.App.4th 1067

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

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

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

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2