Category Archives: Sentencing

Sentencing, Statutory interpretation

Case 000741

Posted on by Gary McCurdy

Error and/or relief

The court erred in not conducting a full resentencing on the defendant’s petition for recall under section 1172.75. Remanded for full resentencing.

First Holding:

When a defendant raises both statutory and constitutional bases for their appeal, we do not reach the constitutional grounds if the case can be resolved on statutory grounds. When a defendant appeals the denial of a Marsden motion, the core inquiry is whether the trial court’s ruling violated the defendant’s constitutional right to the effective assistance of counsel.

Authority:

Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497, 513 [a reviewing court should consider a constitutional question only where essential to the disposition of a case]

People v. Marsden (1970) 2 Cal.3d 118, 123

People v. Smith (1993) 6 Cal.4th 684, 696

Second Holding:

On the other hand, the scope of a trial court’s application of section 1172.75 is a question of statutory interpretation, which is subject to our de novo review. If that review resolves the appeal, it is dispositive.

Authority:

People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–1282

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231 [finding that where statutory and constitutional claims are at issue and resolution of the statutory ground is adequate to resolve the matter, doing so is dispositive]

Third Holding:

The parties disagree about whether defendant forfeited his argument that the trial court erred by failing to conduct a full resentencing under section 1172.75. In the interests of judicial economy, to forestall an ineffective assistance of counsel habeas petition, and to avoid the constitutional issues raised by defendant regarding the performance of his trial counsel, we decline to enforce any forfeiture under the circumstances of this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

Fourth Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

Where an issue on appeal requires that we determine the meaning of a statute, we review the trial court’s decision de novo. In any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. When the language of a statute is clear, we need go no further.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Scott (2014) 58 Cal.4th 1415, 1421

People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls]

Seventh Holding:

Section 1172.75 makes any sentence enhancement imposed prior to January 1, 2020, pursuant to 667.5(b) legally invalid unless it was imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code. If the court determines (through the process set forth in the statute) that the defendant’s sentence includes an invalid enhancement, it is required to recall the sentence and resentence the defendant. An eligible defendant under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [Where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Fines and fees, Sentencing

Case 000737

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the $200 restitution fine imposed by the trial court on resentencing must be vacated, as section 1465.9(d) requires such a fine that is more than 10 years old to be vacated.

First Holding:

Section 1202.4 states a court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Authority:

PEN 1202.4

Second Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. This section not only authorizes, but mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626

Elements of crime, Sentencing, Standard of review

Case 000735

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient as a matter of law to support the jury’s true findings on gang enhancements attached to counts 1 and 2, and a gang-murder special circumstance attached to count 1.

First Holding:

When considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Such evidence must be reasonable, credible and of solid value.

Authority:

People v. Renteria (2022) 13 Cal.5th 951, 970

Second Holding:

To establish a gang enhancement, the prosecution was required to prove the defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang and did so with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute requires proof of a common benefit to members of a gang where the common benefit is more than reputational. Examples of qualifying nonreputational benefits include financial gain or motivation, retaliation, targeting rivals, or witness intimidation.

Authority:

PEN 186.22

Third Holding:

The gang-murder special circumstance required the prosecution to prove that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. Thus, the special-circumstance allegation depended upon the same gang-related findings underlying the section 186.22 enhancements, including the “more than reputational” requirement in section 186.22(g).

Authority:

PEN 190.2

PEN 186.22

People v. Campbell (2023) 98 Cal.App.5th 350, 378

Fourth Holding:

Substantial evidence does not support the jury’s true findings on the gang enhancements attached to counts 1 and 2 or the gang-murder special circumstance attached to count 1. In short, the requirements of section 186.22(g) were not met. Consequently, these findings must be stricken. Based on the principle of double jeopardy, retrial is barred.

Authority:

PEN 186.22(g)

Lockhart v. Nelson (1988) 488 U.S. 33, 39

People v. Garcia (2014) 224 Cal.App.4th 519, 526 [a gang enhancement reversed for insufficient evidence may not be retried]

Fifth Holding:

Because these findings formed part of the overall sentencing package, remand for full resentencing is required.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken, a full resentencing is appropriate so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Juveniles, Probation Parole PRCS, Sentencing

Case 000734

Posted on by Gary McCurdy

Error and/or relief

The court imposed as a condition of probation: “Do not associate or communicate with your co-participant and anyone you know who is on probation, parole, or a gang member” The defendant objects to the inclusion of the phrase “or a gang member.” The condition must be modified.

First Holding:

The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. Although courts have broad discretion to set conditions of probation, the trial court’s discretion in setting the conditions of probation is not unbounded.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Lopez (1998) 66 Cal.App.4th 615, 624

Second Holding:

A term of probation is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality Conversely, a condition of probation that requires or forbids conduct that is not itself criminal is valid if that conduct is reasonably related to the crime of which the minor was convicted or to future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 48

Third Holding:

When a gang condition imposed by the juvenile court involves non-criminal conduct and prohibits a minor from engaging in otherwise legal conduct, we can uphold it only if there is a reasonable connection between the condition and the offense or between the condition and future criminality. Gang-related probation conditions are reasonably related to preventing future criminality when there is evidence of the minor’s affiliation with criminal street gangs.

In the absence of evidence of gang affiliation or association with gang members or risk of gang involvement on the minor’s part, the gang condition is not tailored to his future criminality. In this case, any connection between the minor’s offense and gang activity is speculative.

Accordingly, the condition is modified to “Do not associate or communicate with your co-participant and anyone you know who is on probation or parole.”

Authority:

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236

People v. Brandão (2012) 210 Cal.App.4th 568, 574

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000733

Posted on by Gary McCurdy

Error and/or relief

We strike the protective order, because none of the offenses involved domestic violence. We also remand to give the defendant the opportunity to present evidence on his ability to pay the restitution fine and assessments.

First Holding:

Although initially charged with crimes involving domestic violence, his guilty plea was to a crime that did not involved domestic violence as defined in section 13700 or in Family Code section 6211. His crime is not specifically listed in section 136.2(i)(1), and it does not require registration as a sex offender. Hence, the trial court was without authority at sentencing to issue the criminal protective order for the victim’s benefit under section 136.2(i)(1). As the court did not have statutory authority to issue the criminal protective order, it must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

The court imposed a $2,400 restitution fine, as well as a $2,400 parole revocation fine pursuant to section 1202.45. The court also imposed a $40 court operations assessment (sec. 1465.8(a)(1)) and a $30 court facilities assessment (Gov. Code, sec. 70373(a)(1)).

After sentencing, while this matter was still on appeal, the Supreme Court issued its opinion in Kopp. As to punitive fines, including restitution fines, the court found that due process does not require a trial court to hold an ability to pay hearing before imposing every punitive fine.

However, the court also noted that both the federal and state Constitutions prohibit excessive fines, and held that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

As to court operations assessments and court facilities assessments, which are ancillary costs, the court held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment.

Because neither defendant nor the trial court had the benefit of Kopp’s reasoning and holding at the time of the sentencing hearing, we will direct the court to give defendant an opportunity to challenge the restitution fine and the assessments under Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13, 23, 30