Category Archives: Sentencing

Duty of the court, Sentencing

Case 000830

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a “win,” even under my generous standards, but I have included it because it instructs on the duty of the court to recalculate credit for actual days served since the prior sentencing, but the trial court does not calculate the conduct credits earned since the original sentencing.)

The trial court erred in awarding presentence conduct credit for time the defendant spent in custody between his original sentencing and the time he was resentenced following remand from his earlier appeal.

Holding:

It was error for the court to calculate credits under section 2933.1 for conduct of the defendant in custody between the date of his original sentencing and the date of his resentencing as a result of his prior appeal.

The court should have calculated the days in actual custody (along with whatever local conduct credit the defendant earned prior to his original sentencing).

The California Department of Corrections and Rehabilation [CDCR] will then determine what conduct credit the defendant is entitled to following his original sentencing. An appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the Director of the CDCR’s custody or restore the prisoner to presentence status. A defendant’s temporary removal from state prison to county jail as a consequence of the remand did not transform him from a state prisoner to a local presentence detainee.

When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.

First Holding:

A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.

Authority:

PEN 1025(b)

PEN 1158

People v. Epps (2001) 25 Cal.4th 19, 25

Second Holding:

Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]

Third Holding:

There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.

The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.

And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.

Authority:

People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17

People v. Chambers (2002) 104 Cal.App.4th 1047

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386

Fourth Holding:

There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.

Authority:

People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]

People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]

Monge v. California (1998) 524 U.S. 721

Appellate Principles, Sentencing, Sixth Amendment

Case 000826

Posted on by Gary McCurdy

Error and/or relief

Resentencing is required because the trial court imposed an upper term sentence based on aggravating circumstance findings to which a Sixth Amendment jury trial right attached. As appellant did not personally waive his jury trial right with respect to those factors, their consideration constitutes a Sixth Amendment violation.

First Holding:

The federal Constitution’s Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. This includes any fact, beyond the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum.

Thus, under California’s determinate sentencing law, any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

U.S. Const., 6th Amend.

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

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

Second Holding:

Wiley addressed just how broadly the concept of the fact of a prior conviction is to be understood and the extent of the Almendarez-Torres exception. Wiley examined this question under Erlinger.

In Erlinger, the United States Supreme Court considered a trial court’s authority to find whether a defendant’s convictions had occurred on separate occasions. The high court described the Almendarez-Torres prior conviction exception as narrow, and one that permitted judges to find only the fact of a prior conviction: Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

The high court observed that determining whether offenses were committed on different occasions may be a fact-laden task involving whether the offenses were committed close in time, location, and whether they were intertwined in purpose and character.

Thus, in determining whether convictions occurred on separate occasions, the high court observed the trial court would have to do more than identify the defendant’s previous convictions and the legal elements required to sustain them, which is more than Almendarez-Torres allows.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079

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

Erlinger v. United States (2024) 602 U.S. 821, 834-835, 838

Third Holding:

Wiley concluded that an aggravating circumstance finding that the defendant’s prior convictions are of increasing seriousness, and that the defendant’s performance on probation had been unsatisfactory requires a jury determination as to their truth.

Determining the increasing seriousness of a prior conviction requires a qualitative assessment of the offenses time, location, character, and purpose. Although the law is still developing, the numerosity of prior convictions is a factor for which a jury trial right under Wiley has been recognized.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821, 840

People v. Wright (2025) 113 Cal.App.5th 832, 847 [recognizing the defendant was entitled to a trial by jury on the aggravating factor of whether he had suffered numerous prior convictions]

Fourth Holding:

A waiver of the right to a jury trial must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct.

Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Here, because appellant did not personally waive his right to a jury trial nor did he admit these sentencing factors, his Sixth Amendment jury trial right was violated.

Authority:

Cal. Const., art. I, sec. 16

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

This error was prejudicial. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

A sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Numerosity of the prior convictions is a comparative and qualitative factor that makes it difficult for a reviewing court 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087, 1090

People v. Lynch (2024) 16 Cal.5th 730, 743, 775

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

Sixth Holding:

The defendant raised other arguments regarding selection of the upper term that we need not address, as he may take them up in the trial court on remand. He did not raise them at hearing from which this appeal was taken. The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Notwithstanding any forfeiture at the 2025 sentencing hearing, however, appellant will have an opportunity to raise these claims upon remand for resentencing so that the trial court may consider them in the first instance.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

Sentencing

Case 000823

Posted on by Gary McCurdy

Error and/or relief

It was error to stay the sentence on the use of firearm enhancement and the prior serious felony in an effort to show leniency. The proper procedure requires the court to strike them, not stay them.

Holding:

The trial court imposed and stayed both the remaining section 12022.53(b) and (c) firearm enhancements as to counts 1 and 2, and the serious felony prior enhancement as to count 2. This was an unauthorized sentence. The record indicates that the trial court did not intend to punish the defendant for these additional enhancements. Because a trial court has no authority to stay an enhancement based on its discretion, the court imposed a legally unauthorized sentence. We exercise our authority under section 1260 to modify the judgment by striking this unauthorized sentence.

Authority:

PEN 1260

People v. Bay (2019) 40 Cal.App.5th 126, 139 [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.]