Category Archives: Sentencing

Sentencing, Sixth Amendment

Case 000782

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing the upper term based on circumstances in aggravation that were not stipulated to nor proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2), prohibits imposition of an upper-term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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(b)(2)

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

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

Second Holding:

Where the trial court relies on unproven aggravating factors, we assess prejudice under Chapman, which requires us to find prejudice unless we can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence. The Chapman standard applies whenever the court has relied on unproven factors, even if some other aggravating facts relied on have been properly established.

Authority:

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

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

Third Holding:

The trial court erred by imposing the upper-term sentence based on five aggravating factors that were not found true by a jury or stipulated to by the defendant. The jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated. We do not know what facts the jury relied on in finding a lack of premeditation and whether those facts would have caused a jury to find not true the allegation that the crime involved planning and professionalism.

The remaining aggravating factors relied on by the court, other than the prior prison term, likewise require factual determinations. As stated in Wiley, even the determination that crimes are of increasing seriousness is comparative and qualitative and must be left to the decision of the jury.

Authority:

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

Amelioration, Duty of the court, Sentencing, Standard of review

Case 000779

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or violent felony for purposes of the strike prior and prior serious felony enhancements and remand the matter to the trial court for any retrial of this finding.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: If a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7(c) defines “serious felony” to include, among other things, “any felony offense, which would also constitute a felony violation of section 186.22.”

Authority:

PEN 1192.7(c)(28)

Second Holding:

Assembly Bill 333 amended section 186.22. Effective January 1, 2022, this legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

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

Third Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1065, 1067

Fourth Holding:

In Fletcher, our Supreme Court held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies 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.

Accordingly, 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. The matter must be remanded to the trial court for any retrial of these allegations, and if required, any resentencing.

Authority:

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

Amelioration, Fines and fees, Sentencing

Case 000778

Posted on by Gary McCurdy

Error and/or relief

The defendant was originally sentenced in 2011. On resentencing the defendant under section 1172.75, the trial court should not have reimposed the restitution fine, jail classification fee, and booking fee because they are unenforceable and uncollectible.

First Holding:

The trial court originally imposed the restitution fine in July 2011. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated.

Because the restitution fine was originally imposed more than 10 years before the trial court resentenced defendant, under section 1465.9(d), the trial court should not have reimposed the restitution fine when it resentenced defendant in 2025.

Authority:

PEN 1465.9(d)

Second Holding:

The trial court also should not have reimposed the booking fee and jail classification fee under Government Code section 29550.2, because the Legislature repealed that section effective July 1, 2021. After July 1, 2021, the unpaid balance of court-imposed costs under several statutes, including Government Code section 29550.2, are unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

GOV 6111

Duty of the court, Sentencing

Case 000777

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have recalculated his credit for time served.

Holding:

Upon resentencing that results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment.

Authority:

PEN 2900.1

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Amelioration, Duty of the court, Sentencing

Case 000776

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court failed to pronounce sentence on two of the counts. This was error. Also, the court must recalculate the defendant’s credit for time served.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Once the Department of Corrections and Rehabilitation identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant.

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A recall effectively vacates the defendant’s original sentence and commitment.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 399, 402

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

People v. Rogers (2025) 108 Cal.App.5th 340, 360

Second Holding:

The resentencing under section 1172.75 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In resentencing, the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing

Authority:

PEN 1172.75(d)(1)

Third Holding:

In a criminal case, judgment is rendered when the trial court orally pronounces sentence. If a sentence of imprisonment is to be imposed the sentencing judge must pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

At a sentencing hearing, the court must orally pronounce the sentence on the record. Since the court recalled defendant’s sentence under section 1172.75, it effectively vacated his original sentence and thus should have orally pronounced all components of the sentence on the record at the resentencing hearing.

Authority:

Rules of Court, rule 4.433(c)(5)

People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9

People v. Mesa (1975) 14 Cal.3d 466, 471 [Rendition of judgment is an oral pronouncement]

Fourth Holding:

There was also an error in the sentencing, in that the sentence on one count was a life term, but the count was not a serious felony and should have been sentenced as a determinate term.

It is well established that when the trial court pronounces a sentence that is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Benton (1979) 100 Cal.App.3d 92, 102

Fifth Holding:

The trial court should recalculate defendant’s custody credits on remand.

Authority:

PEN 2900.5(d)

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.]