Category Archives: Sentencing

Sentencing

Case 000054

Posted on by Gary McCurdy

Error and/or relief

We find there was insufficient evidence to prove beyond reasonable doubt that the defendant’s prior strikes were based on separate criminal acts, and we remand for resentencing on that basis. There was insufficient evidence to impose his federal conviction for bank robbery as a prior strike because it could not be shown that the conviction was based on a different criminal act than either of his two state robbery convictions.

First Holding:

If two strike offenses are based on a single act, the court must dismiss one of the strikes.

Authority:

People v. Vargas (2014) 59 Cal.4th 635, 638

Second Holding:

Prior convictions for multiple criminal acts committed in a single course of conduct may be treated as separate strikes, so long as the convictions are not so closely connected that treating them as separate strikes would be contrary to the spirit of the Three Strikes law.

Authority:

People v. Benson (1998) 18 Cal.4th 24, 35

People v. Vargas (2014) 59 Cal.4th 635, 648

[GARY NOTE: The California Supreme Court issued its opinion–published, of course, but hey!–in People v. Shaw (2025) 18 Cal.5th 1089 on December 15, 2025. It concluded that only one strike can be based on the single act of vehicular manslaughter that resulted in the death of two occupants of the car his vehicle struck. One justice wrote a concurring opinion in which he questioned the continuing validity of People v. Benson (1998) 18 Cal.4th 24 (holding that two prior offenses committed seconds apart against a single victim may be treated as separate strikes) and People v. Fuhrman (1997) 16 Cal.4th 930 (holding that two offenses committed in quick succession against two separate victims qualify as separate strikes). Two other justices agreed with the concurring opinion. It may be that the majority believed that Shaw did not present the precise question raised in Benson and Furhman and therefore decided not to venture beyond the facts before it at this time. That’s pure speculation by me, of course. But there may be an audience in our high court willing to closely examine exactly what can constitute separate strikes where the crimes are closely related in time and nature.]

Third Holding:

Penal Code section 654 does not apply to successive federal and state prosecutions.

Authority:

People v. Belcher (1974) 11 Cal.3d 91, 98

People v. Fielder (2004) 114 Cal.App.4th 1221, 1234 [Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence]

Amelioration, Sentencing

Case 000052

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 (see former sec. 667.5(b)) 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 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

Fines and fees, Retroactivity, Sentencing

Case 000051

Posted on by Gary McCurdy

Error and/or relief

The restitution fine must be vacated because more than 10 years have elapsed since the court imposed the fine.

First Holding:

Restitution fines are no longer collectible 10 years after their imposition and the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 is retroactive to those whose judgments are not final.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Amelioration, Sentencing

Cases 000046, 000047, 000048, and there is no 000049

Posted on by Gary McCurdy

Error and/or relief

[GARY’S NOTE: Three cases held exactly the same and are lumped together here, and there is no case 000049 (as a result of blogger error).]  Under the authority of Rhodius, we reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing. Under section 1172.75, a person is eligible for resentencing consideration even if the prior prison term enhancement had been stayed or stricken.

First Holding:

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) 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.

Authority:

PEN 1172.75

PEN 667.5(b)

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

Appellate Principles, Jurisdiction, Sentencing

Case 000041

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing conducted after the remittitur issued, the trial court declined to strike or reduce the Penal Code section 12022.53(d) firearm enhancement and reimposed the sentence of 50 years to life. The parties agree that the trial court lacked jurisdiction to conduct the earlier hearing (while the appeal was up in higher court, the trial court permitted the prosecution to file new circumstance in aggravation) and the matter must be remanded for a new resentencing hearing. Accordingly, we reverse and remand for a new sentencing hearing conducted in accordance with Senate Bill 567.

First Holding:

It is well established that the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

This jurisdictional rule serves to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided, and prevents the trial court from rendering an appeal futile by altering the appealed judgment by conducting other proceedings that may affect it.

Authority:

People v. Awad (2015) 238 Cal.App.4th 215, 224

Third Holding:

During the premature hearing, the trial court permitted the prosecution to amend the information to add a factor in aggravation pursuant to California Rules of Court, rule 4.421(b)(1), and accepted defendant’s waiver of his right to trial and admission to the new allegation. Because the trial court lacked jurisdiction to conduct this hearing, all proceedings conducted during that hearing—including the amendment of the information and defendant’s subsequent admission—are null and void.

Authority:

People v. Williams (1999) 77 Cal.App.4th 436, 446-447

Amelioration, Appellate Principles, Elements of crime, Sentencing

Case 000038

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction does not conclusively establish the defendant is ineligible for resentencing under Penal Code section 1172.6 on his manslaughter conviction as a matter of law, the court reversed and remanded the matter for the court to issue an order to show cause and conduct an evidentiary hearing on that count.

First Holding:

A defendant who pleaded no contest to manslaughter is eligible for resentencing if the charging document permitted the prosecution to pursue a conviction under the felony-murder rule, the natural and probable consequences doctrine, or any other imputed malice theory.

Authority:

PEN 1172.6

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

Second Holding:

Absent exceptional circumstances, appellate courts generally do not take judicial notice of evidence not presented to the trial court.

Authority:

Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 417, fn. 7

Sentencing

Case 000036

Posted on by Gary McCurdy

Error and/or relief

We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct.

Authority:

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

When a defendant is imprisoned and later resentenced, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000035

Posted on by Gary McCurdy

Error and/or relief

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding:

The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]

Second Holding:

Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.

Authority:

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

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

People v. Burgos (2024) 16 Cal.5th 1, 28

Third Holding:

If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.

Authority:

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

People v. Sek (2022) 74 Cal.App.5th 657, 669

United States v. Tateo (1964) 377 U.S. 463, 465

Fourth Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41

Probation Parole PRCS, Sentencing, Standard of review

Case 000034

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them

First Holding:

Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.

Authority:

PEN 1203.1

Second Holding:

A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 498

People v. Lent (1975) 15 Cal.3d 481, 486

Third Holding:

The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition.

Authority:

People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3

Fourth Holding:

A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 233-234

Fifth Holding:

Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights.

Authority:

People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127

In re I.V. (2017) 11 Cal.App.5th 249, 260

In re Sheena K. (2007) 40 Cal.4th 875, 890

Sixth Holding:

A probation condition must be sufficiently definite for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 500

Seventh Holding:

A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be narrowly drawn]

Eighth Holding:

We review de novo constitutional challenges to probation conditions.

Authority:

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Abstracts and Minutes, Appellate Principles, Jury trial, Juveniles, Sentencing, Sixth Amendment

Case 000033

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining defendant’s personal waiver of the defendant’s right to a jury trial on allegations of aggravating circumstances and prior convictions under the Three Strikes law. As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial.

Authority:

Section 16 of Article I of the California Constitution

People v. Wiley (2025) 17 Cal.5th 1069, 1078

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

People v. French (2008) 43 Cal.4th 36, 46-47

Second Holding:

A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

Third Holding:

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. Under that standard, reversal and remand are required 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

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

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

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

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal

Authority:

Cal. Rules of Court rule 8.204(a)(1)(B)

People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5

Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947

People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5

Fifth Holding:

With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone.

Authority:

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2

People v. Hardy (1992) 2 Cal.4th 86, 150

Sixth Holding:

Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case.

Authority:

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Smith (1983) 33 Cal.3d 596, 599

Seventh Holding:

There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited.

Authority:

PEN 1025(b) and (c)

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

People v. Gallardo (2017) 4 Cal.5th 120, 125

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

People v. Grimes (2016) 1 Cal.5th 698, 737–738

People v. Saunders (1993) 5 Cal.4th 580, 589

Eighth Holding:

As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 855

Monge v. California (1998) 524 U.S. 721, 728–729

Ninth Holding:

Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667(a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony).

Authority:

People v. West (1984) 154 Cal.App.3d 100, 107–108

People v. Park (2013) 56 Cal.4th 782, 798

People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10

People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068

Sentencing

Case 000031

Posted on by Gary McCurdy

Error and/or relief

The trial court miscalculated the credit for time served. We will therefore modify his presentence credit award.. The defendant was granted one additional day of actual custody credit.

Holding:

[NOTE BY GARY–THE COURT DID NOT ACTUALLY CITE AUTHORITY, MOST LIKELY BECAUSE IT WAS AN ERROR IN CALCULATION AND NOT AN ERROR ON THE LAW. I HAVE PROVIDED THE AUTHORITIES HERE THAT SUPPORT THE COURT’S RULING, THOUGH NOT MENTIONED IN THE OPINION.] In determining the credit for time served, the court must count all actual days in custody (attributable to proceedings related to the same conduct for which the defendant has been convicted), including the day of arrest and the day of sentencing.

Authority:

PEN 2900.5

People v. Rajanayagam (2012) 211 Cal.App.3d 42, 48

People v. Bravo (1990) 219 Cal.App.3d 729, 735

 

Sentencing

Case 000030

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.

First Holding:

Assault by means likely to produce great bodily injury is not a serious or violent felony.

Authority:

People v. Leng (1999) 71 Cal.App.4th 1, 9 [A violation of former section 245(a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant personally inflicted great bodily injury on any person, other than an accomplice, or personally used a firearm or a dangerous or deadly weapon]

Second Holding:

When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense.

Authority:

People v. Johnson (2015) 61 Cal.4th 674

People v. Lynn (2015) 242 Cal.App.4th 594

Third Holding:

Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing.

Authority:

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