Category Archives: Sentencing

Duty of the court, Fines and fees, Sentencing

Case 000894

Posted on by Gary McCurdy

Error and/or relief

The record discloses that the trial court imposed an unauthorized sentence by imposing a fine without specifying the basis of the penalty assessments.

(Gary note: This was not a victory in the purest sense, as it changed nothing for the defendant, whom the trial court found had the ability to pay. I have included this summary for its authority that the court must specify the breakdown of the fine with its various penalty assessments. In the case, the appellate court reversed the imposition of the fine and directed the trial court to reimpose it but specifying the authority for the various assessments that turned the $300 fine into $1170.)

First Holding:

Section 290.3 provides in pertinent part, that every person who is convicted of any offense specified in section 290(c) shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of $300 upon the first conviction or a fine of $500 upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.

Authority:

PEN 290.3(a)

Second Holding:

The imposition of a section 290.3 fine in the total amount of $1,170 or the imposition of a $300 base fine plus $870 in penalty assessments without citing the statutory basis for the penalty assessments are both unauthorized sentences. An unauthorized sentence may be corrected at any time even if there was no objection in the trial court. Such an unauthorized sentence may be corrected even when raised for the first time on appeal.

Authority:

People v. Valenzuela, (2009) 172 Cal.App.4th 1246, 1248-1249 [The fine imposed in this case constituted an unauthorized sentence]

In re Sheena K. (2007) 40 Cal.4th 875, 886,

People v. Smith (2001) 24 Cal.4th 849, 854

Third Holding:

The trial court imposed the sex offender fine in the amount of $1,170 as set forth in the probation report. We construe the court’s statement to mean that it intended to impose the section 290.3 fine and the corresponding penalty assessments, which are listed in the probation report, but erroneously failed to list each penalty assessment and their respective corresponding amounts at sentencing.

We shall therefore modify the judgment to include a $300 section 290.3 fine and penalty assessments in the following amounts: a $60.00 Court Surcharge (sec. 1465.7), a $150.00 State Court Facilities Construction Fund Fee (Gov. Code, sec. 70372(a)), a $300.00 State Penalty Assessment (sec. 1464), a $210.00 County Penalty Assessment (Gov. Code, sec. 76000), a $30.00 DNA Identification Fund Fee (Gov. Code, sec. 76104.6), and a $120.00 DNA Identification Fund fee (Gov. Code, sec. 76104.7).

Authority:

PEN 290.3

PEN 1465.7

GOV 70372(a)

PEN 1464

GOV 76000

GOV 76104.6

GOV 76104.7

Appellate Principles, Duty of the court, Sentencing

Case 000893

Posted on by Gary McCurdy

Error and/or relief

It was error for the judge to stay the section 12022.1 enhancement under section 1385(b)(1). An enhancement may be stricken or imposed, unless there is some other legal reason it must be stayed rather than imposed.

First Holding:

Ordinarily, an enhancement must be either imposed or stricken in furtherance of justice under section 1385. Section 1385(b)(1) adds that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.

There are exceptions to this rule that permit courts to stay the punishment imposed for an enhancement, for example section 654 and rule 4.447 of the California Rules of Court. These exceptions are not discretionary; they are limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.

Authority:

PEN 1385(b)(1)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

According to the transcript of the sentencing hearing, the trial court here relied on section 1385(b)(1) when it purported to stay the section 12022.1 enhancement. It does not appear that any overriding statute prohibits imposition of the enhancement in this case.

As a result, the court lacked the authority to stay the enhancement. In general, we presume a trial court knew and followed the law. Based on the statutory provision cited by the court, we conclude the court intended to strike the punishment for the enhancement rather than imposing an unauthorized stayed sentence.

The minute order from the sentencing hearing supports this conclusion by indicating that the court struck the enhancement, though it suggests the court did so at a prior hearing, which is not supported by the transcript. We will modify the judgment accordingly.

Authority:

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

Amelioration, Duty of the court, Sentencing

Case 000892

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant a full resentencing at the hearing held under section 1172.75. At the initial hearing, the defendant agreed that the court could proceed with striking the now-invalid prior prison term enhancement with the judge’s assurance that the defendant could seek a full resentencing at a later date.

First Holding:

When the defendant did request the full resentencing, the trial court denied it based on the Tang decision, which held that a defendant was not eligible for resentencing because his prior conviction had previously been stricken and he was not serving a sentence under which that prior conviction was a component.

But Tang was not applicable. In Tang, the prior conviction enhancement was stricken on direct appeal a full decade before Tang sought resentencing under section 1172.75.

Here, the enhancement was stricken as part of a single proceeding under section 1172.5 held on two dates. Moreover, the defendant only consented to bifurcating that one proceeding based on the court’s assurance it would later conduct a full resentencing hearing, and it was improper for the court to later render that promise meaningless.

Authority:

PEN 1172.75

People v. Tang (2025) 109 Cal.App.5th 1003

(Gary note: the court did not expressly cite any authority for the recognition that a defendant eligible for relief under section 1172.75 is entitled to a full resentencing. The courts have interpreted section 1172.75 as, by its plain terms, requiring a full resentencing, not merely that the trial court strike the newly invalid enhancements. I have set forth two cases as a convenience for the reader that support that principle, though Buycks was addressing a different statute.)

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

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]

Fines and fees, Sentencing

Case 000891

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.6, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, section 1465.9 was amended to state that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Here, the trial court imposed the $200 restitution fine more than 10 years before denying the defendant’s resentencing petition. As the People concede, that fine must therefore be vacated

Authority:

PEN 1465.9(d)

Sentencing, Sixth Amendment, Standard of review

Case 000890

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating factors that were not presented to a jury for proof beyond a reasonable doubt.

First Holding:

Section 1170(b)(1) provides that 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 paragraph (2).

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

Rule 4.421 of the California Rules of Court provides a list of aggravating circumstances that must be stipulated to by the defendant or determined beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Notwithstanding section 1170(b)(1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2) and (3)

Rules of Court, rule 4.421

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Lynch (2024) 16 Cal.5th 730, 748, 759-760

Second Holding:

These provisions are subject to constitutional limitations under the Sixth Amendment. Specifically, 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.

For example, the Wiley court held that the defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085-1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Third Holding:

A defendant may waive his right to a jury trial on the aggravating factors, provided he does so personally and expressly. To be valid, the record must show the defendant’s waivers of the right to a jury are knowing, intelligent, and voluntary. In making such a determination, we examine the totality of the circumstances unique to each case.

In this case, we determine that the colloquy between the court and the defendant did not adequately inform him of what the aggravating factors were. Without a clear explanation that defendant was entitled to have a jury decide the truth of the specific aggravating factors that the court intended to use against him, or even notice of those aggravating factors, it cannot be said that he knowingly or intelligently waived his right to have a jury decide the truth of those specific aggravating factors, of which he was never made aware.

Authority:

People v. Collins (2001) 26 Cal.4th 297, 308

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. Daniels (2017) 3 Cal.5th 961, 990, 991 [a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent]

Fourth Holding:

Because defendant was deprived of a jury trial on the aggravating facts used to justify imposition of the upper term sentence, and there was no knowing or intelligent waiver, we must determine whether he was prejudiced by that error under the Chapman standard.

(Gary note: the court then reviewed the specific facts of the defendant’s criminal record and performance on probation or parole, details of which are case specific and would not add to this summary of an unpublished opinion that cannot be cited.)

Since we cannot conclude the lack of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify the upper term sentence, defendant is entitled to a reversal and remand for resentencing.

Authority:

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

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

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