Category Archives: Sentencing

Abstracts and Minutes, Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Third Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Amelioration, Duty of the court, Sentencing

Case: 000125

Posted on by Gary McCurdy

Error and/or relief

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility. We therefore remand the matter for a new evidentiary hearing under section 1172.6(d). At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.

First Holding:

The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by SB 1437.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Second Holding:

The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt. A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 294-296

People v. Harden (2022) 81 Cal.App.5th 45, 51

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

Case: 000123

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of two counts of assault with a deadly weapon and found true that he personally inflicted great bodily injury in the commission of those counts. We conclude the injury to the victim in count 2, which the emergency room doctor described as a “superficial laceration,” is not sufficient to support the enhancement under section 12022.7(a). Consequently, we reverse the true finding, strike the one year imposed under section 12022.7(a), associated with count 2, and remand for resentencing to allow the trial court to exercise its discretion anew with the changed circumstance.

First Holding:

Great bodily injury is an injury that is greater than minor or moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Martinez (1985) 171 Cal.App.3d 727, 735–736 [evidence of superficial lacerations held not sufficient to prove great bodily injury]

Second Holding:

We review a challenge to the sufficiency of the evidence supporting a jury’s true finding on a section 12022.7(a) enhancement under the same standard that applies to a challenge to the sufficiency of the evidence to support a conviction. In considering a sufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence is evidence that reasonably inspires confidence and is of solid value.

Authority:

People v. Escobar (1992) 3 Cal.4th 740, 750

People v. Collins (2025) 17 Cal.5th 293, 307

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.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term]

Amelioration, Duty of the court, Sentencing

Case: 000122

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. The People concede both of these points. We vacate the defendant’s sentence, and remand for a full resentencing with directions to recalculate the credit for time served.

First Holding:

Even where the defendant is serving a sentence under the Three Strikes law, on recall the trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Second Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000121

Posted on by Gary McCurdy

Error and/or relief

The court failed to recalculate the actual time defendant had served pursuant to the sentence for which he was being resentenced and reflect those credits in the amended abstract of judgment.

First Holding:

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.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.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]

Second Holding:

Generally, a clerical error is one inadvertently made. Clerical error can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705

Amelioration, Duty of the court, Sentencing

Case: 000120

Posted on by Gary McCurdy

Error and/or relief

The defendant submitted both a petition for writ of habeas corpus and a motion for recall and resentencing under section 1172.6. The trial court erroneously treated both as a petition for writ of habeas corpus, which it denied without prejudice to allow the defendant to separately file a petition under section 1172.6. Though contained in the same envelope and assigned a single case number by the court clerk, there were two separate matters presented to the trial court. The matter is remanded for the trial court to give due consideration to the petition/motion filed for recall of sentence under section 1172.6. There is also an error in the abstract of judgment that should be corrected, depending on the outcome of the hearing on the petition.

First Holding:

The record indicates that defendant submitted not only a petition for writ of habeas corpus, but also a separate motion for resentencing. The title page of the habeas petition states it was being filed concurrently with a motion for recall and resentencing pursuant to section 1172.6. Defendant included a separate section 1172.6 “motion” with its own title page and caption designating it as such. That defendant, a prisoner, mailed the documents in one envelope as opposed to two, and placed his “motion” for resentencing before the exhibits to the petition for writ of habeas corpus, does not change the fact he submitted a separate “motion” to the court. As for the assignment of only one case number—for the habeas proceeding—this was a clerical matter over which defendant had no control. The trial court was required to consider the motion/petition filed under section 1172.6.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960 [where resentencing petition complies with the three facial sufficiency requirements of sec. 1172.6(b), the court proceeds to consider whether the petitioner has made a prima facie case for relief under subd. (c)]

Second Holding:

The abstract contains an error on whether the two counts were ordered served concurrently or consecutively. Should the trial court determine defendant is ineligible for relief pursuant to section 1172.6, we direct the trial court to issue an amended abstract of judgment that corrects this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment]

Amelioration, Sentencing, Statutory interpretation

Case: 000119

Posted on by Gary McCurdy

Error and/or relief

Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75. We reverse and remand for resentencing.

Holding:

A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term.

Authority:

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

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Fines and fees, Retroactivity, Sentencing

Case: 000117

Posted on by Gary McCurdy

Error and/or relief

The trial court’s judgment is modified to vacate any portions of the probation related fees imposed by the trial court as part of probation condition No. 14 that remained unpaid as of July 1, 2021.

First Holding:

AB 1869 (2019-2020 Reg. Sess.) repealed the authority to collect various fees. The bill makes the unpaid balance of these fees unenforceable, uncollectible, and requires that any portion of a judgment imposing such fees be vacated.

Authority:

PEN 1465.9

Second Holding:

The defendant is entitled to the retroactive application of these ameliorative changes.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 680

People v. Clark (2021) 67 Cal.App.5th 248, 258

Amelioration, Sentencing, Statutory interpretation

Case: 000116

Posted on by Gary McCurdy

Error and/or relief

The defendant petitioned for recall and resentencing pursuant to section 1172.75. The question before us is whether section 1172.75 entitles the defendant to a resentencing hearing even though the prior prison term enhancements were stricken for the purposes of sentencing. We agree with defendant that he is entitled to resentencing pursuant to section 1172.75.

First Holding:

Section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing.

Authority:

PEN 1172.75

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

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Abstracts and Minutes, Sentencing

Case: 000114

Posted on by Gary McCurdy

Error and/or relief

We conclude that the abstract of judgment must be modified to accurately reflect the defendant’s presentence custody credits and his sentence on the attempted murder count. We accordingly modify the judgment to correct these sentencing errors and affirm the judgment as modified.

First Holding:

While a defendant sentenced to life in prison with the possibility of parole becomes eligible for parole after serving seven years, the correct sentence to be imposed remains life with the possibility of parole, plus any determinate enhancements. The abstract of judgment, which currently describes the sentence on the attempted murder with premeditation and deliberation as “seven years to life,” must be corrected accordingly. [Gary note: The court did not provide its authority for ordering that the abstract of judgment be corrected, but there are many cases it could have cited. I have listed some below, which were not in the opinion but support the correction.]

Authority:

PEN 3046(a)(1)

PEN 664(a)

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 [shorthand pronouncement of seven years to life where statutory term is life with the possibility of parole is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

The trial court miscalculated the credit for time served. The defendant is entitled to three additional days, and the abstract of judgment must be modified accordingly. [GARY NOTE: The court did not provide any authority for this correction, most likely because it is so obvious that it must be corrected. Authorities supporting the court’s order (but not cited by the court) could include those I set forth below, among others.]

Authority:

PEN 2900.5

People v. Smith (1989) 211 Cal.App.3d 523, 527

Amelioration, Sentencing

Case: 000112

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in finding the defendant was ineligible for a full resentencing hearing under section 1172.75, because his judgment includes a now-invalid prison prior and thus the court’s order must be reversed. [At the original sentencing, the court had imposed and stayed the one-year prior prison term.]

Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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