Category Archives: Sentencing

Sentencing

Case 000889

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

A defendant is entitled to actual custody credit for ‘all days of custody’ in county jail and residential treatment facilities, including partial days. He is also entitled to conduct credits at a rate of 50 percent of actual time served.

But, if the defendant’s offense is statutorily defined as violent, section 2933.1(c) limits the presentence conduct credit to 15 percent of actual time served before sentencing.

The defendant was convicted of rape, a violent felony under section 667.5(c)(3). He is therefore entitled to a 15 percent presentence conduct credit. The trial court correctly awarded him 101 days of actual custody credit but only awarded him 14 days, rather than 15 days, of presentence conduct credit Accordingly, the abstract of judgment should be corrected to reflect one additional day of conduct credit.

Authority:

PEN 2900.5

PEN 4019

PEN 2933.1

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

People v. Nunez (2008) 167 Cal.App.4th 761, 764

Amelioration, Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 000888

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. There could be no rational tactical reason for defense counsel to concede that the defendant was ineligible.

First Holding:

In 2018, the Legislature amended the definition of felony murder in section 189 to restrict culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

At the same time, the Legislature added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine, to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437. I

f the petition makes a prima facie case for relief the court must hold an evidentiary hearing. At this hearing, the People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the law as it exists now, with the trial judge sitting as factfinder.

Authority:

PEN 189

PEN 1172.6

Second Holding:

When conducting a prima facie review, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If the record of conviction does not conclusively demonstrate that the defendant engaged in the requisite acts and had the requisite intent to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.

A preliminary hearing transcript is part of the record of conviction for these purposes, and courts may rely on them when reviewing petitions at the prima facie stage.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 975

People v. Barboza (2021) 68 Cal.App.5th 955, 965-966

People v. Patton (2025) 17 Cal.5th 549, 568 [there is no dispute that the record of conviction the parties may consult at the prima facie stage includes a preliminary hearing transcript preceding a guilty plea.]

Third Holding:

We review the trial court’s decision at the prima facie stage de novo. Reviewing de novo, we therefore find that the defendant established a prima facie case for relief, and the trial court should not have denied his petition for failing to do so.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

At the hearing, the defendant’s counsel stated that he was appointed to determine eligibility pursuant to 1172.6, and concluded the defendant was not eligible.

The defendant’s counsel cited cases involving defendants who made a prima facie showing for the proposition that a guilty plea is a judicial admission. That it’s an admission that he was, in fact, the killer, and therefore the defendant could not state a prima facie case for relief. Based on this, the court summarily denied the defndant’s petition.

Contrary to the court’s and counsel’s understanding below, a guilty plea (without more) is not an admission to any particular theory of guilt, and therefore cannot render a defendant ineligible for relief as a matter of law.

Moreover, the record of conviction, including the preliminary hearing transcript, does not contain any facts definitively foreclosing the defendant’s eligibility for relief. It is undisputed that the defendant was not the sole participant in either the burglary or murder of the victim.

Nor is there any clear evidence the defendant was the actual killer—indeed, the only evidence presented suggests that the co-defendant, not not the defendant, was the actual killer.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977 [By pleading guilty, the defendant admitted every element of the charged offense but the defendant did not admit facts supporting liability on any particular theory. Accordingly, the guilty plea did not constitute an admission that the defendant acted with malice.]

Fifth Holding:

The People assert the doctrine of invited error. The doctrine of invited error is an application of the estoppel principle and applies when a party invites the court or the jury to commit error.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. It is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.

However, for the doctrine to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In order to apply the doctrine, the record must show only that counsel made a conscious, deliberate tactical choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.

In other words, the invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law.  We conclude that on this record defense counsel’s decision to concede that the defendant is ineligible for relief was not a deliberate tactical choice.

Put simply, there was no possible tactical purpose for counsel’s decision to concede the matter. The defendant did not stand to receive any possible benefit from this concession, and therefore the decision to concede could only have been a genuine mistake.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1072

Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Cooper (1991) 53 Cal.3d 771, 83

People v. Duncan (1991) 53 Cal.3d 955, 970

People v. Wader (1993) 5 Cal.4th 610, 658

Sixth Holding:

Even if the invited error doctrine did apply, we would still reach the merits.

Because a deliberate tactical choice by counsel may be an incompetent one, courts have recognized that defendants barred from raising error under the invited error doctrine may instead claim they received ineffective assistance of counsel.

However, courts may also address the merits of an otherwise procedurally barred claim in order to avert any claim of inadequate assistance of counsel. T

hus, even if we concluded the defendant had invited the error he now complains of, we would exercise our discretion to reach the merits anyway to avoid the same result obtaining through an ineffective assistance of counsel claim.

We reverse the order denying the defendant’s section 1172.6 petition and remand. On remand, we direct the trial court to issue an order to show cause and to conduct further proceedings as required under section 1172.6.

Authority:

People v. Wader (1993) 5 Cal.4th 610,

People v. Yarbrough (2008) 169 Cal.App.4th 303, 310

Fines and fees, Sentencing

Case 000887

Posted on by Gary McCurdy

Error and/or relief

In this appeal from denial of resentencing under section 1172.75, we find that the court erred in concluding that he was not entitled to resentencing because the prior prison term enhancement had not been imposed.

First Holding:

In Rhodius, the court held that section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed.

If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Second Holding:

In Espino, the court expanded on Rhodius to hold that an enhancement is imposed for purposes of section 1172.75 where the sentencing court strikes the punishment for the enhancement but not the allegation itself. The court explained that imposing a sentence on a criminal defendant has legal effect, and a true finding on a prior prison term allegation is a part of the sentencing order, even when the associated punishment is stricken.

It follows that, as a matter of ordinary usage, an enhancement included in the sentence in a criminal case may be imposed even if the punishment for that enhancement is stricken.

Here, because the jury’s true finding was neither stricken nor dismissed, it remained imposed within the meaning of section 1172.75. The order denying the defendant’s motion for resentencing is reversed and the matter is remanded for a full resentencing under section 1172.75(d), as well as for proceedings on any motion for relief under section 1465.9(d), which states that restitution fines greater than 10 years old must be vacated.

Authority:

PEN 1172.75

PEN 1465.9(d)

People v. Espino (2026) 20 Cal.5th 57

People v. Fuentes (2016) 1 Cal.5th 218, 225, [striking the punishment for an enhancement merely serves to prohibit a certain purpose for which the allegation may be used; it does not operate to defeat the factual finding of the truth of the allegation]

Amelioration, Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case 000886

Posted on by Gary McCurdy

Error and/or relief

1n 1991, for a crime committed in 1989, the defendant was sentenced to life without the possibility of parole (LWOP). When his case came up for resentencing under section 1172.75 in 2025, the court believed its only discretion was to impose less than the upper term on the determinate portion of his sentence. Defense counsel agreed. This was error. The court also erred in its calculation of credit for time served. And the restitution fine must be struck.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a sentence enhancement of one additional year for each of a defendant’s prior prison or jail terms. Section 1172.75(a) now provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b) is legally invalid.

Section 1172.75(b) and (c) mandate that the Department of Corrections and Rehabilitation identify eligible individuals whose sentences include now-invalidated section 667.5 enhancements, and that the trial court shall recall the sentence and resentence the defendant.

While conducting the resentencing, section 1172.75(d)(2), provides the express instruction that the court 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.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

Section 190.2(a) provides that where there has been a finding of certain enumerated special circumstances in connection with a defendant who has been found guilty of first degree murder, the penalty is death or LWOP. Section 1385 previously provided the trial court with the discretion to strike or dismiss the special circumstances.

Although the statute only authorizes such relief upon motion of the court or application of the prosecution, the defendant nevertheless has the right to invite the court to exercise its power by an application to strike a count.

Failure by a defendant to make such a request under section 1385 results in forfeiture of the issue. In the interests of justice, and in consideration of defendant’s alternative argument of ineffective assistance of counsel, we exercise our discretion to reach a question that has not been preserved for review by a party.

Authority:

PEN 190.2(a)

PEN 1385

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141, 1144

People v. Coleman (2024) 98 Cal.App.5th 709, 724

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

Third Holding:

Contrary to Section 1385, however, section 1385.1 provides that a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. The section was enacted as of June 6, 1990, via voter initiative Proposition 115. The dispute here centers around whether section 1385.1 serves as a bar to the trial court’s discretion to strike section 190.2 special circumstances when the court is resentencing a defendant pursuant to section 1172.75 for a pre-June 6, 1990, crime.

Authority:

PEN 1385.1

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Fourth Holding:

Ordinarily, we review the trial court’s sentencing decisions for abuse of discretion. However, defendant argues pursuant to McDavid that the trial court necessarily abused its discretion when it failed to strike his special circumstances because it was unaware that it had any discretion to do so.

We therefore examine whether the trial court had any discretion in this regard, which is a question of statutory interpretation to be reviewed de novo.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730, 757

People v. McDavid (2024) 15 Cal.5th 1015, 1023

Fifth Holding:

The Nguyen court noted that section 1385.1 operates only prospectively, therefore, a trial court may dismiss a special circumstance allegation attached to any murders committed before June 6, 1990, the date that section 1385.1 became effective. Nguyen specifically relied upon Tapia.

In Tapia, Proposition 115 took effect while the defendant was in the process of being prosecuted for first degree murder. The defendant challenged the trial court’s decision to conduct voir dire pursuant to the new Proposition 115 procedures.

In examining whether Proposition 115’s provisions could be applied to crimes committed prior to its effective date after consideration of ex post facto concerns, the Supreme Court separated the provisions into four separate categories depending on their impact upon defendants.

Relevant to this inquiry, the high court expressly categorized section 1385.1 as falling within the category of provisions that change the legal consequences of criminal behavior to the detriment of defendants and therefore cannot be applied to crimes committed before the measure’s effective date.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-287, 297

Sixth Holding:

The mandate in section 1172.75(d)(2), that the trial court apply any other changes in law that reduce sentences or provide for judicial discretion” evidences a legislative intent that defendants are to be treated with more leniency, not less, when being resentenced pursuant to this statute. Because the trial court clearly expressed more than once its belief that it did not have any discretion with respect to the LWOP sentence on Count 1, we deem the court to have abused its discretion and reverse.

Authority:

PEN 1172.75(d)(2)

People v. McDavid (2024) 15 Cal.5th 1015, 1023 [A court acting while unaware of the full scope of its discretion is deemed to have abused it.]

Seventh Holding:

The court court failed to award the defendant 2 days of credit for time served, and we modify the judgment accordingly.

(Gary note: The court did not cite any authority, but it seems obvious that the court has the power to modify the credit for time served to the correct number. I have cited authority the court could have relied on. The issue does not seem so much a matter of the trial court refusing to award credit; rather, it was a mathematical error. I speculate that perhaps the court did not award credit for the first day in custody. Counting days is different than determining the number of days between dates. From January 1 through January 31 is 31 days, counting. But if you subtract January 1 from January 31, you will realize only 30 days.  For credit for time served, the correct number is the counting number–31 in my example.)

Authority:

PEN 2900.5

Eighth Holding:

As part of defendant’s original 1991 sentencing, the court ordered him to pay $10,000 to the state Restitution Fund pursuant to Penal Code section 1202.4 (formerly Govt. Code sec. 13967(a).) In light of section 1465.9, which compels that restitution fines older than 10 years be vacated, we vacate that fine. In Salstrom, the court determined that the reference to 10 years is from the date the restitution fine was originally ordered.

Resentencing does not reset the 10-year limitation. Applying section 1465.9 to reduce defendant’s sentence as part of a section 1172.75 resentencing hearing gives effect to both statutes.

Authority:

PEN 1465.9

People v. Giordano (2007) 42 Cal.4th 644, 652-653 [detailing the history of the restitution statutes]

People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601, review granted on unrelated issues, March 11, 2026, S295038

Mejia v. Reed (2000) 31 Cal.4th 657, 663 [when two codes are to be construed, they must be read together and so construed as to give effect, when possible, to all the provisions thereof]

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, 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, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. In the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

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. The resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

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

Fourth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

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

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

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459