Category Archives: Sentencing

Discretion, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000899

Posted on by Gary McCurdy

Error and/or relief

The electronic-data conditions are unreasonable under People v. Lent. We therefore strike them and remand for the juvenile court to consider whether to impose revised conditions. We also agree with the parties that the association condition should be modified to include a knowledge requirement.

First Holding:

When a ward of the juvenile court is placed on probation, the court may make any and all reasonable orders for the conduct of the ward, including conditions of probation that (1) are individually tailored, developmentally appropriate, and reasonable; (2) impose a burden that is proportional to the legitimate interests served by the conditions; and (3) are determined by the court to be fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. A condition of probation that is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.

Authority:

WIC 730(b)

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

Second Holding:

We review conditions of probation for an abuse of discretion, which occurs only if the condition is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances. To determine whether a probation condition is reasonable, we apply a three-part test under Lent.

A condition cannot be held invalid under Lent unless it meets all three of the following prongs: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not related to future criminality.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118-1119

People v. Lent (1975) 15 Cal.3d 481, 486

Third Holding:

In addition to being reasonable, a probation condition must be sufficiently precise for the probationer to know what is required and for the court to determine whether the condition has been violated, or else it is void for vagueness. And when a probation condition imposes limitations on a probationer’s constitutional rights, it must closely tailor those limitations to the purpose of the condition—the person’s reformation and rehabilitation—to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Fourth Holding:

Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo.

Authority:

In re David C. (2020) 47 Cal.App.5th 657, 661

Fifth Holding:

We conclude that the conditions are invalid under Lent. As to the first prong of Lent, there is no question that restricting the use of electronics The minor’s conduct involved asking the victim for her phone number, and asked the victim to put his number in her phone contacts list–which she did, but later deleted it. These acts do not establish the requisite relationship between the challenged probation conditions and the minor’s offense (sexual battery by restraint). Generally, decisions finding a sufficient connection between electronics search conditions and an offense rely on the probationer’s use of electronic devices to facilitate the offense.

In Appleton, the defendant met the minor victim online and later sexually assaulted him. The Court of Appeal held that the nexus between the offense and the probation condition at issue was sufficient even though it was somewhat attenuated. In Flores, the Court held that there was a reasonable relationship between the condition at issue and the defendant’s drug offense because the defendant used a website and an online program to arrange drug sales through a disguised phone number. Here, in contrast, there is no evidence that electronic devices played any role in facilitating the offense.

Here, in contrast, there is no indication that the minor ever actually contacted the victim through an electronic device. Indeed, he did not even have the ability to do so, as he never obtained her contact information. Nor is there any evidence that the victim attempted to communicate with the minor after the offense. The first two prongs of Lent have been met–the condition has no relation to the criminal conduct, and it restrains otherwise lawful conduct.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 719-720

People v. Flores (2026) 118 Cal.App.5th 563, 565-566, 573

People v. Lent (1975) 15 Cal.3d 481, 486

Sixth Holding:

The third prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, the mere fact that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct is insufficient to justify a broad electronics search condition. The electronic-data conditions burden the minor’s privacy in a manner substantially disproportionate to the claimed purposes of ensuring compliance with two of his other probation conditions (a no-contact order and prohibition from possessing sexual materials).

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

In re David C. (2020) 47 Cal.App.5th 657, 665 and fn 4

In re Amber K. (2020) 45 Cal.App.5th 559, 567-568

Seventh Holding:

The court ordered the following probation condition: “The Minor shall not associate with minors under the age of 14, unless it is his own child, unless in the presence of a responsible adult, or associated person is approved by the Probation Department.”

A probation condition is unconstitutionally overbroad if it (1) impinges on constitutional rights, and (2) is not tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the probationer’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

The restriction is not unreasonable, but it must be tailored to require the minor’s express knowledge that the minor is under the age of 14. Generally speaking, if a probation condition prohibits a probationer from associating with a certain group of people, the condition is unconstitutionally vague unless it also requires that the probationer know a given person is in that group. Here, the minor may not reasonably know that an individual is under 14 years of age.

Thus, we modify the association condition to read: “The Minor shall not associate with minors whom he knows or reasonably should know are under the age of 14, unless it is his own child, unless he is in the presence of a responsible adult, or unless the associated person is approved by the Probation Department.”

Authority:

People v. Gonsalves (2021) 66 Cal.App.5th 1, 8–9

People v. Bray (2025) 112 Cal.App.5th 494, 503

People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [modifying condition prohibiting association with people under age 18].

Amelioration, Sentencing

Case 000898

Posted on by Gary McCurdy

Error and/or relief

AB 333 amendments apply retroactively because the defendant’s judgment was not final following recall of his sentence, reverse his gang conviction and gang enhancements, and remand for further proceedings consistent with this opinion.

First Holding:

In 2022, AB 333 went into effect and made the following changes to the law on gang offenses and 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. Additionally, to prove collective engagement under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

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

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments apply retroactively to appellant’s case, as the judgment became nonfinal when he returned to the trial court under section 1172.75 for recall and resentencing. When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada purposes

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 394

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

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

Third Holding:

Here, section 1172.75 required the trial court to recall the sentence and resentence appellant. The court was to 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. As such, appellant’s judgment became nonfinal for Estrada purposes, and the court should have addressed amendments made by AB 333.

Authority:

PEN 1172.75

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

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381 [defendant entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under sec. 1170(d)]

Fourth Holding:

The jury’s findings on the gang allegations in 2015 were made prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Respondent concedes the record does not disclose the error was harmless beyond a reasonable doubt and that remand is required.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fifth Holding:

Upon remand the prosecution must be given an opportunity to establish the elements of the substantive gang offense charged in count 5 and the gang enhancements on counts 1 through 3 and 8 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 33, the trial court must conduct a full resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669–670

 

Sentencing, Sixth Amendment

Case 000897

Posted on by Gary McCurdy

Error and/or relief

On remand following the defendant’s earlier appeal, the trial court imposed an upper term based on impermissible aggravating recidivism factors.

Holding:

Under the Sixth Amendment, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Here, the court imposed the upper term based on the aggravating facts that the defendant’s prior convictions were numerous and of increasing seriousness and his performance on probation was unsatisfactory.

Because the defendant did not stipulate to these facts, which go beyond the bare fact of his prior convictions and their elements, he was entitled to a jury trial on them. That he did not receive one renders the sentence unauthorized.

Accordingly, we vacate the sentence and remand the matter to give the People an opportunity to retry the aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1091

People v. Lynch (2024) 16 Cal.5th 730, 776 [proper remedy where aggravating facts were not tried to a jury is to remand and give the People an opportunity to retry the aggravating facts]

 

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sentencing

Case 000896

Posted on by Gary McCurdy

Error and/or relief

The defendant’s 10-year prison terms constitute ex post facto punishment. We reverse the judgment and remand for a new sentencing hearing.

First Holding:

The trial court instructed the jurors that the offenses charged in counts 1 through 4 allegedly occurred sometime between a specific date in 2007 and a specific date in 2015.

The jurors made no specific finding about the dates of the acts on which they convicted the defendant for counts 1 through 4. The jury made no finding that the offenses in counts 1 through 4 occurred before the Legislature increased the sentencing triad from 3-6-8 years to 5-8-10 yearson September 9, 2010. In addition, the record does not establish that the jury must have based its verdicts on acts occurring after that date.

Thus, we conclude the trial court violated the prohibition against ex post facto laws by imposing 10-year terms for the defendant’s convictions on counts 1 through 4.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 257–262

Second Holding:

As to the remedy for the ex post facto violation, we exercise our discretion to vacate the defendant’s sentence and remand the matter for full resentencing. On remand, the trial court should impose prison terms on counts 1 through 4 in accordance with the triad in effect prior to September 9, 2010.

Authority:

PEN 1260

People v. Hiscox (2006) 136 Cal.App.4th 253, 262

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

Eighth Amendment, Equal protection, Sentencing

Case 000895

Posted on by Gary McCurdy

Error and/or relief

We remand solely as to the fines and ancillary costs ordered in this case on appeal.

First Holding:

Kopp allows challenges based on the excessive fines and equal protection clauses of the federal or state Constitutions.

Authority:

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

Second Holding:

Kopp addresses the proper means by which a criminal defendant may challenge the various court ordered payments imposed at criminal sentencings. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution. As to fines, such as restitution and parole revocation payments under Penal Code sections 1202.4 and 1202.45, there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines under either the federal or state Constitutions.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 17, 23

Third Holding:

As to ancillary costs, under Penal Code section 1465.8 and Government Code section 70373, Kopp explains an equal protection analysis is appropriate and holds that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

(Gary note: This stems from the recognition that in civil cases, the same fees are due, but the superior court may waive them for civil litigants. Kopp concludes that criminal defendants must be given the same consideration, as there is no legitimate reason to discriminate between civil cases and criminal cases for administrative assessments that go toward support of the court system and are not punitive in nature.)

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30