Category Archives: Sentencing

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

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

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

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

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Amelioration, Retroactivity, Sentencing

Case 000068

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which narrowed liability for gang-related crimes.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

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

Second Holding:

AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607

Third Holding:

Assembly Bill No. 333 is retroactive under Estrada, meaning it applies to cases like this one where the judgment is not yet final.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Fourth Holding:

In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. [Gary note: I included this tidbit simply to raise awareness of a Court of Appeals options in how opinions may be crafted.]

Authority:

California Standards of Judicial Administration, section 8.1(1)

 

Amelioration, Sentencing

Case 000066

Posted on by Gary McCurdy

Error and/or relief

We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.

First Holding:

An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal.

Authority:

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

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

In 2019, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant.

Authority:

PEN 667.5(b)

PEN 1172.75

Sentencing

Case 000065

Posted on by Gary McCurdy

Error and/or relief

When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.

Holding:

Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125 [Gary note: Phoenix is interesting in that it held that when a court is resentencing a defendant on cases inolving more than one county–e.g., running the home county’s sentence consecutive to or concurrent with a sentence imposed in another county–it is the duty of that home county court to calculate all the credits earned in all the cases, including any in another county.]

Amelioration, Sentencing, Vicarious liability

Case 000064

Posted on by Gary McCurdy

Error and/or relief

We conclude that the failure to appoint counsel and hold a prima facie hearing on the first and second degree murder convictions was harmless, but the same cannot be said with respect to his attempted murder conviction. We thus reverse the denial of the petition as to that count and remand for further proceedings, in line with People v. Patton (2025) 17 Cal.5th 549. Custody credits must be updated.

First Holding:

Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

SB 1437

SB 775

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

Second Holding:

The instructions that guided the verdicts did not include all the elements of direct aiding and abetting liability for attempted murder. First, the instructions did not require the jury to find that the defendant had the specific intent to kill. the failure to identify a specific target crime while instructing with CALJIC No. 3.02 broadened the reach of the natural and probable consequences doctrine to include liability for aiding and abetting other unspecified criminal behavior. Indeed, the Prettyman court explained that omitting the element of the instruction identifying the target crime is error because it impermissibly allows the jury to convict the defendant of murder based on its belief that the defendant intended to assist and/or encourage unspecified nefarious conduct of which murder was a natural and probable consequence.

Authority:

People v. McCoy (2001) 25 Cal.4th 1111, 1118 [a defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]

People v. Prettyman (1996) 14 Cal.4th 248, 268

Estelle v. McGuire (1991) 502 U.S. 62, 72 [reversible error in failing to identify a target offense if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution]

Third Holding:

When a sentence is modified while defendant is serving the sentence, the trial court must update defendant’s actual custody credits up to that point.

Authority:

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

Abstracts and Minutes, Pleading, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

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

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

Evidence, Sentencing, Sufficiency of and substantial evidence

Case 000061

Posted on by Gary McCurdy

Error and/or relief

We vacate the robbery-murder special circumstance finding for lack of sufficient evidence. We otherwise affirm the judgment.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. These same standards apply to challenges to the evidence underlying a true finding on a special circumstance.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 804

Second Holding:

The only admissible evidence that the four defendants agreed to rob the victim is the second codefendant’s testimony to that effect. And the only admissible evidence that a robbery actually occurred comes from that second codefendant’s testimony that some of the codefendants eventually took the victim’s wallet from him, scanned it for valuables, and kept it. However, it is well-settled that because of the reliability questions posed by accomplice testimony, such testimony by itself is insufficient as a matter of law to support a conviction.

Authority:

People v. Romero and Self (2015) 62 Cal.4th 1, 32

Third Holding:

The only other evidence of a conspiracy to robbery are those of a third and fourth codefendants made during a Perkins operation. Such evidence cannot corroborate the second codefendant’s testimony, because the required corroboration must come from a source other than another accomplice.

Authority:

People v. Price (1991) 1 Cal.4th 324, 444, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161

Fourth Holding:

In a “Perkins operation,” a suspect is placed in a cell with an undercover law enforcement agent, and their conversation is audio recorded.

Authority:

Illinois v. Perkins (1990) 496 U.S. 292

Sentencing

Case 000060

Posted on by Gary McCurdy

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

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

People v. Singleton (2025) 113 Cal.App.5th 783

People v. Boyd (2024) 103 Cal.App. 56

People v. Codinha (2023) 92 Cal.App.5th 976

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

Sentencing

Case 000058

Posted on by Gary McCurdy

Error and/or relief

The fines and fees not mentioned in the trial court’s oral imposition of sentence are improper and must be stricken.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

[Cf.] People v. Cleveland (2004) 32 Cal.4th 704, 768

Second Holding:

When a trial court does not orally impose discretionary restitution and parole revocation fines under sections 1202.4 and 1202.45 and the prosecution does not object, as here, the prosecution forfeits any objection on appeal and the fines or fees must be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

Third Holding:

When a defendant has been convicted of certain listed offenses, including any crime that requires sex offender registration pursuant to section 290(c) at the time of sentencing the trial court shall consider issuing an order restraining the defendant from any contact with a victim of the crime. It was error to include Jane Doe in the protective order because she was not a victim of the crime, and even as a witness there was no indication that the defendant had made threats toward her within the meaning of section 136.2(i)(2).

Authority:

PEN 136.2(i)(1)

PEN 136.2(i)(2)

People v. Walts (2025) 112 Cal.App.5th 127, 143 [The amendment to section 136.2(i)(1) reflects that the Legislature intended that protective orders should only be available for any person who is a victim of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted]

Fourth Holding:

The defendant should have objected to the protective order in trial court, thus forfeiting the issue, but we will nonetheless consider his argument to the extent that it raises a question of law.

Authority:

People v. Walts (2025) 112 Cal.App.5th 127, 140

Fifth Holding:

We review the trial court’s result, not its rationale.

Authority:

People v. Zapien (1993) 4 Cal.4th 929, 976

Amelioration, Sentencing

Case 000057

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the trial court to hold that hearing.

Holding:

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

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

 

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000056

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying his request for resentencing pursuant to Penal Code section 1172.75. We reverse the order because the defendant was entitled to have the court consider his eligibility for relief under Assembly Bill No. 333.

First Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements for prior prison terms.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

People v. Lopez (2025) 17 Cal.5th 388

Second Holding:

Assembly Bill 333 (revising the elements that must be proven to support gang crimes and enhancement allegations) applies to cases where a defendant is resentenced pursuant to section 1172.75, even where there was a negotiated plea agreement.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 400

Third Holding:

Assembly Bill 333 took effect on January 1, 2022 and is considered ameliorative legislation.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

People v. E.H. (2022) 75 Cal.App.5th 467, 477

Fourth Holding:

The trial court should have considered the applicability of Assembly Bill 333 in the context of the defendant’s resentencing under section 1172.75, whether or not his counsel brought the issue to the attention of the court. By its express language, section 1172.75 itself puts the onus on the trial court to apply any other changes in law that reduce sentences. Assembly Bill 333 is such a law and should have been addressed by the trial court.

Authority:

PEN 1172.75(d)(2

Fifth Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all non-final cases.

Authority:

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

Sixth Holding:

For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 679 [The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability]

Fines and fees, Sentencing

Case 000055

Posted on by Gary McCurdy

Error and/or relief

There can be no parole restitution fine on sentences of life without the possibility of parole. We will strike the fine and direct the trial court to issue a new abstract of judgment.

Holding:

Because defendant was sentenced to prison for life without the possibility of parole, her parole revocation fine should be stricken.

Authority:

PEN 1202.45(a)

People v. Coleman (2024) 98 Cal.App.5th 709, 725