Category Archives: Sentencing

Sentencing, Sixth Amendment, Standard of review

Case: 000252

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial by imposing the upper term without an express waiver of his right to a jury trial on the aggravating factors. The trial court’s finding that the defendant had consistently violated the law is a decision that goes beyond the bare fact of the prior conviction and its elements and therefore exceeds the scope of the statutory exception to the jury trial right for prior conviction that appears in section 1170(b)(3). Absent a waiver the defendant was entitled to a jury trial on the aggravating factors. The error was not harmless beyond a reasonable doubt.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b) unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

Second Holding:

In 2022, the Legislature amended section 1170, subdivision (b) to limit a trial court’s discretion to impose the upper term of a sentencing triad. Under the current version of the statute, trial courts may impose a sentence that exceeds the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. However, 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

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

Third Holding:

In Erlinger, the United States Supreme Court clarified that the court in Almendarez-Torres v. United States permitted a judge to undertake the job of finding the fact of a prior conviction—and that job alone. The question before the Erlinger court was whether a judge may decide that a defendant’s past offenses were committed on separate occasions or whether the Fifth and Sixth Amendments required a jury to make that determination beyond a reasonable doubt. In holding that Erlinger was entitled to a jury determination on the issue, the court stated that deciding whether those past offenses occurred on three or more different occasions is a fact-laden task, and judges may not assume the jury’s factfinding function for themselves.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 825, 834, 837

Almendarez-Torres v. United States (1998) 523 U.S. 224

Fourth Holding:

The California Supreme Court confirmed that virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously beyond a reasonable doubt. Unless the defendant waives the right to a jury trial or stipulates that the aggravating factors are true, the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

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

Fifth Holding:

The Wiley court held that an inquiry of whether a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. A defendant is entitled to a jury determination 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. The 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069,1082, 1085

Sixth Holding:

Based on our review of the defendant’s prior record—including his CLETS certified rap sheet, certified records of his convictions, and the probation officer’s report—the sentences imposed for his conviction, the age of his felony convictions, and the nature of his recent offenses could lead a jury to conclude that the defendant’s convictions were not of increasing seriousness. On this record, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found these aggravating factors true. Because it is possible a jury could reach the opposite conclusion on one of the aggravating factors the court may have relied on to impose the upper term, the omission of the defendant’s right to a jury trial on the aggravating factors was not harmless beyond a reasonable doubt. We, therefore, reverse his sentence and remand for a trial on the aggravating factors.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

 

Amelioration, Sentencing, Standard of review

Case: 000251

Posted on by Gary McCurdy

Error and/or relief

Though the trial court did not err in concluding that the defendant’s bare assertions of eligibility for relief in his petition to recall his sentence under section 1172.6 were belied by the record of conviction, the matter was remanded to the trial court to give the defendant the opportunity to file an amended petition.

First Holding:

Senate Bill No. 1437 amended the statutes defining malice (section 188) and felony murder (section 189, subd. (e)) to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and limit the scope of the felony-murder rule. It also added former section 1170.95, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Effective January 1, 2022, Senate Bill No. 775 amended section 1170.95 to extend the resentencing procedures to a person convicted under any other theory under which malice is imputed to a person based solely on that person’s participation in a crime. Former section 1170.95 has since been renumbered as section 1172.6, with no substantive changes.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Second Holding:

If a section 1172.6 petition contains all required information (e.g., declaration of eligibility, case information, any request for appointed counsel), the trial court must review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of section 1172.6. If the petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested, and the prosecutor must file a response, and the petitioner may file a reply. The court then reviews the petition a second time. If it concludes in light of this briefing that the petitioner has made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and recall the sentence and resentence the petitioner on any remaining counts.

Authority:

People v. Roldan (2020) 56 Cal.App.5th 997, 1003

Third Holding:

When conducting the prima facie review, the trial court must assume the truth of the petition’s allegations unless they are refuted by the record of conviction. If a petition is supported only by conclusory, checkbox allegations and the preliminary hearing transcript contains unchallenged, relief-foreclosing facts, then the trial court may deny the petition at the prima facie stage. This is because a section 1172.6 petitioner who, despite having access to counsel upon submission of a facially sufficient petition, offers only conclusory allegations of entitlement to relief, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Patton (2025) 17 Cal.5th 549, 564-566

Fourth Holding:

However, petitioners need not, at the prima facie stage, meet an evidentiary burden of proof to establish entitlement to relief, such as the burden of proof applicable to the People if trying to defeat relief at the later section 1172.6, subdivision (d)(3) evidentiary hearing. Rather, petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Fifth Holding:

We review de novo whether the record of conviction establishes that the petitioner is ineligible for resentencing relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Sixth Holding:

The court properly considered the preliminary hearing transcript to make a prima facie determination that defendant was the actual killer and thus ineligible for resentencing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Seventh Holding:

Defendant requests that, if we affirm, we should remand with directions to afford him 30 days to amend his petition to plead additional facts. Because defendant did not have the benefit of Patton’s guidance during the prima facie stage before the trial court, we grant his request.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

People v. Glass (2025) 110 Cal.App.5th 922, 930

Amelioration, Sentencing, Sixth Amendment

Case: 000250

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred at sentencing when it relied on aggravating circumstances to increase the defendant’s punishment without obtaining a waiver of his right to a jury trial on those circumstances.

First Holding:

The trial court erred by sentencing the defendant to an upper term absent the defendant’s (a) stipulation to the aggravating facts the trial court relied on or (b) waiving a jury trial on those aggravating facts.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided middle term]

Second Holding:

We cannot conclude beyond a reasonable doubt that a jury would have found true the facts underlying the aggravating circumstance that the defendant’s prior convictions as an adult are numerous. This aggravating circumstance rests on a somewhat vague and subjective standard, which makes it difficult to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

For example, we cannot confidently say where the jury would have drawn the line for numerous, how the jury would have weighed felonies or misdemeanors, or how the jury might have considered the passage of time and discounted older convictions. We are also mindful that we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. For example, had the defense told the jury more details about the offenses, the jury could have been more likely to count convictions as minor and thus less likely to add up to the numerous standard. Having determined that the facts underlying one aggravating circumstance do not meet the standard for harmless error, we must vacate the defendant’s sentence and remand for resentencing.

Authority:

PEN 1170

People v. Sandoval (2007) 41 Cal.4th 825, 840

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

Due process, Sentencing

Case: 000248

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
At the resentencing hearing ordered as result of a the prior appeal, the trial court erred by resentencing the defendant without his personal presence, failing to conduct a full resentencing, and miscalculating his credits for time served.

[Gary note: the opinion indicates that the abstract following the remand was incorrect, that an amended abstract filed thereafter was incorrect in other respects, and a new amended abstract contained several errors–including in the minute order that the defendant had waived his presence, yet there was nothing in the reporter’s transcripts to indicate he had waived his presence. I reiterate a comment I made in an earlier post: Counsel really should examine the abstracts of judgment carefully, whether the defendant was the client at the trial level or at the appellate level.]

First Holding:

A defendant has a constitutional right to be present at all critical stages of the criminal prosecution, i.e., all stages of the trial where his absence might frustrate the fairness of the proceedings. The defendant’s right to be present includes at a resentencing hearing.

Authority:

People v. Rodriguez (1998) 17 Cal.4th 253, 260 [right to presence following remand to consider dismissing strike]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Second Holding:

Section 977 requires that a felony defendant shall be physically present at the time of the imposition of sentence. It allows a defendant to waive their physical presence only for other proceedings.

Authority:

PEN 977(b)(1)

Third Holding:

Notwithstanding section 977, waiver of personal appearance at felony sentencing is permitted by section 1193 if the defendant, in open court and on the record or in a notarized writing, requests that judgment be pronounced against the defendant in his or her absence. This provision applies to resentencing following an appellate court remand. But the defendant did not waive his right to be present at sentencing in open court or by a notarized writing. Accordingly, the trial court erred when it resentenced him without his personal presence.

Authority:

PEN 977(b)(1)

People v. Cutting (2019) 42 Cal.App.5th 344, 345-346

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414

Fourth Holding:

At the resentencing, the trial court failed to update the defendant’s custody credits. The amended abstract must include credit for actual days in custody after the original sentencing until the date of resentencing. On remand, the trial court must calculate the actual time in prison; the determination of prison conduct credits is left to the prison administration

Authority:

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1418

People v. Honea (1997) 57 Cal.App.4th 842, 845, disapproved on other grounds in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.

Fifth 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.

Authority:

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

Sixth Holding:

Although we concluded in the first appeal that the trial court did not abuse its discretion when it denied the motion to dismiss the strike pursuant to Romero, supra, 13 Cal.4th 497, the trial court on resentencing had jurisdiction to reconsider that ruling.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rodriguez (1998) 17 Cal.4th 253, 260

Amelioration, Sentencing

Case: 000247

Posted on by Gary McCurdy

Error and/or relief

The defendant is not eligible to have a full resentencing under section 1172.75 because no now-invalid prior prison term enhancement had ever been imposed, a pre-condition for invocation of section 1172.75. The abstract of judgment must be corrected because it erroneously indicates that the enhancement for the prior prison term was stayed, when it is clear from the record that the court actually struck the enhancement rather than impose and stay it.

First Holding:

Appellate courts may exercise their authority to correct clerical errors, including correcting an abstract of judgment and may strike statements in the abstract to conform with the court’s oral pronouncement. Because the trial court explicitly stated, “The court is likewise going to strike the 667.5(b) prison prior,” the enhancement should not have been listed in the abstract of judgment, and we have the authority to order the abstract’s correction without requiring an accompanying resentencing. We order that correction accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

People v. Zackery (2007) 147 Cal.App.4th 380, 388

Second Holding:

The question in this case was left open by the Supreme Court in People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2 and, as is discussed below, is factually distinguishable from the issue to be decided in People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted October 23, 2024, S286987, which hinges on the “imposition” of a stricken prison prior enhancement’s punishment. Pending briefing before the Supreme Court is limited to the following issue: “Is a defendant entitled to resentencing under Penal Code section 1172.75 when the judgment in the defendant’s criminal case includes a prior-prison-term enhancement that was imposed but for which punishment was stricken?” (Espino, S286987, Supreme Ct. Mins., July 30, 2025.)

(Gary Note: Espino was decided by the Supreme Court on July 2, 2026. It did firmly hold that section 1172.75 applies when the punishment for a now-invalid prior prison term enhancement was stricken, not merely stayed as it was in Rhodius. Footnote 1 of the Supreme Court opinion in Espino seems to make it clear that it was not deciding the issue that arose in this Case 000247. Footnote 1: “Our decision in Rhodius also left open whether a prior prison term enhancement is “imposed” (sec. 1172.75(a)) “when an enhancement, not just its associated punishment, [is] stricken” (Rhodius, supra, 17 Cal.5th at p. 1066, fn. 2). As that question is not at issue in this case, we do not address it.”

(I can tell you that a petition for review in this case (the one for which this is the summary, 000247) was denied a few months ago, before Espino was decided. It seems it will take a different case to convince the Supreme Court to decide whether a person is eligible for relief under section 1172.75 in cases where the court struck the enhancement itself (and thus had nothing on which to impose and either stay or strike punishment.)

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2

People v. Espino (2024) 104 Cal.App.5th 188, 194 (review granted 10/23/24, S286987

People v. Espino (2026) ___ Cal.5th ___ (S286987, decided July 2, 2026)

Sentencing

Case: 000246

Posted on by Gary McCurdy

Error and/or relief

Though not entitled to conduct credits because he was convicted under the One Strike Law, the defendant was entitled to credit for actual time in custody. The matter is remanded for the court to determine and award the length of time he was in custody.

First Holding:

The defendant is entitled to presentence custody credits. As there appears to be a factual discrepancy regarding the date of his arrest, we remand this issue to the trial court for a determination of the appropriate amount of presentence custody credit

Authority:

PEN 2900.5

People v. Ravaux (2006) 142 Cal.App.4th 914, 919

People v. Fares (1993) 16 Cal.App.4th 954, 958

Second Holding:

A person sentenced under the One Strike Law (section 667.61) is not entitled to pre-sentence conduct credit.

Authority:

People v. Adams (2018) 28 Cal.App.5th 170, 182

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Dearborne (2019) 34 Cal.App.5th 250, 267–268

Sentencing, Standard of review

Case: 000245

Posted on by Gary McCurdy

Error and/or relief

Section 654 required the court to stay the punishment for one of his two criminal threat convictions. The record is devoid of any evidence suggesting that the defendant had sufficient time to reflect and renew his intent between his act of sending the first set of text messages giving rise to count 2 and his act of sending the second set of text messages giving rise to count 3. Therefore, we modify the judgment to stay the punishment for one of the counts.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 protects against multiple punishment, not multiple conviction. To avoid double punishment, a sentencing court applying section 654 will impose the sentence for one offense while staying the imposition of the sentence on the other offense.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 336

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311–312

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Third Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. The court’s express or implied findings in support of its determination that section 654 does not apply will be upheld on appeal if substantial evidence supports them. The applicability of section 654 to settled facts presents a question of law.

Authority:

People v. Cruz (2020) 46 Cal.App.5th 715, 737

People v. Harrison (1989) 48 Cal.3d 321, 335

Fourth Holding:

Where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654. However, in the absence of some circumstance foreclosing its sentencing discretion a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. Indeed, a court may even rely on facts underlying verdicts of acquittal in making sentencing choices.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1339-1340

Fifth Holding:

If multiple offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. However, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Gaynor (2019) 42 Cal.App.5th 794, 800 [even if a course of conduct is directed to one objective, it may give rise to multiple violations and punishment if it is divisible in time]

People v. Goode (2015) 243 Cal.App.4th 484, 492 [If the offenses were committed on different occasions, they may be punished separately]

People v. Gaio (2000) 81 Cal.App.4th 919, 935

People v. Louie (2012) 203 Cal.App.4th 388, 399 [If the separation in time afforded the defendant an opportunity to reflect and to renew the defendant’s intent before committing the next crime, a new and separate crime is committed.]

Amelioration, Duty of the court, Sentencing

Case: 000242

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to update the credits for time served, and awarded only the credits allowed at the original sentencing 12 years earlier. This was error, and the matter is remanded for the trial court to recalculate the proper credits as of the date of the resentencing hearing.

Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Amelioration, Sentencing

Case: 000239

Posted on by Gary McCurdy

Error and/or relief

Here, where the petition was facially sufficient, it was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage without appointing counsel and without a hearing. The trial court in this case appointed no counsel, conducted no hearing, and did not consider briefing, arguments of either party, or any other portion of the trial record, which necessarily informs the prima facie inquiry. On this record, with multiple participants in the shooting incident, as well as the jury’s instruction on the natural and probable consequences doctrine, a theory of implied malice, we cannot say it would be a waste of judicial resources to send the case back to the trial court to conduct its obligations under section 1172.6.

First Holding:

Effective January 1, 2019, the Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. It also added section 1170.95, now section 1172.6, to provide a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Thereafter, it expanded the path to resentencing under the law to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723-724

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

A petition under section 1172.6 that includes a declaration by petitioner that the petitioner is eligible for relief , based on all the requirements of section 1172.6, subdivision (a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558-559

Third Holding:

The prima facie inquiry is limited A petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. Indeed, in assessing petitions from individuals convicted after a jury trial, the jury instructions will be critical. The record of conviction also includes documents such as verdict forms. If the record [of conviction, including the court’s own documents, contains facts refuting the allegations made in the petition, then ‘the court is justified in making a credibility determination adverse to the petitioner. The court may deny the petition at the prima facie stage only if the record of conviction conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971, 974

People v. Strong (2022) 13 Cal.5th 698, 720 [factfinding is prohibited at the prima facie stage]

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Patton (2025) 17 Cal.5th 549, 563

People v. Gallardo (2024) 105 Cal.App.5th 296, 301

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

People v. Hickman (2025) 110 Cal.App.5th 1262, 1268

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000238

Posted on by Gary McCurdy

Error and/or relief

We strike the domestic violence probation fee. The defendant was sentenced to prison.

Holding:

The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.

Authority:

PEN 1203.97(a)(5)

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Third Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Under the current version of section 1170(b)(2), 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:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

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

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

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

Appellate Principles, Due process, Sentencing

Case 000235

Posted on by Gary McCurdy

Error and/or relief

After the initial conviction was overturned on appeal, and the defendant was again convicted at trial, it was error for the trial court to impose consecutive terms for counts that had been imposed concurrently following the first trial.

Holding:

If a defendant successfully challenges his conviction and obtains a new trial, the due process and double jeopardy clauses of the California Constitution prohibit the imposition of a greater sentence following retrial.

Authority:

People v. Torres (2005) 127 Cal.App.4th 1391, 1403

People v. Thompson (1998) 61 Cal.App.4th 1269, 1275–1276 [modifying sentence after trial court imposed a more severe penalty after the second trial]