Category Archives: Sentencing

Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment

Case 000702

Posted on by Gary McCurdy

Error and/or relief

Defendant’s sentence is vacated, and the matter is remanded for resentencing with directions that the trial court exercise its sentencing discretion without considering aggravating factors that were not found true by the jury.

First Holding:

The court relied on circumstances in aggravation that were not submitted to the jury. The trial court’s authority to impose an upper term sentence is addressed in section 1170(b), which authorizes an upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury or by the judge in a court trial.

There was no objection, and the upper term sentence could have been imposed based on only the aggravating factors of victim vulnerability and taking advantage of a position of trust, which were found true by the jury. Therefore, the upper term is not a sentence that could not lawfully be imposed under any circumstance in the particular case.

Thus, the unauthorized sentence exception to the forfeiture rule may not apply under the facts in this case. However, to forestall a future claim of ineffective assistance of counsel, we exercise our discretion to excuse any possible forfeiture and address defendant’s claim on the merits.

Authority:

PEN 1170

People v. Scott (1994) 9 Cal.4th 331, 354, 355–356 [holding defendant waived claim that trial court abused its discretion in aggravating his sentence based on factors that were inapplicable, duplicative, and improperly weighed]

People v. Achane (2023) 92 Cal.App.5th 1037, 1043

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6

Second Holding:

Section 1170(b) triggers the Sixth Amendment jury trial right with respect to every aggravating factor (other than a prior conviction) the trial court uses to justify an upper term sentence, and under the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Third Holding:

Such a violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmn standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Fourth Holding:

Applying these principles, we find the trial court erred in relying on the defendant’s continuing failure to take accountability for his actions. This additional aggravating factor was not decided by the jury but, rather, was a conclusion made by the trial court based on both defendant’s trial testimony and his continuing claim of innocence at sentencing.

Although the jury did not believe defendant’s testimony as to six of the nine counts charged, it was never asked to decide the issue of his lack of accountability, and since the jury was excused before sentencing, it obviously could not have made a finding that defendant continued to fail to take accountability. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Fifth Holding:

The People did not prove, and could not have proved, a lack of remorse or lack of accountability without burdening defendant’s constitutional right to testify at trial and maintain his innocence.

Authority:

People v. Key (1984) 153 Cal.App.3d 888, 900 [lack of remorse may not be used as aggravating factor when defendant denies guilt and evidence is conflicting]

People v. Bonilla (2007) 41 Cal.4th 313, 356 [at penalty phase of capital crime prosecutor may properly comment on a defendant’s lack of remorse as relevant to whether remorse is present as a mitigating circumstance but may not suggest that lack of remorse is an aggravating factor]

Abstracts and Minutes, Appellate Principles, Gary Musings, Jurisdiction, Sentencing

Case 000701 and Gary Musings

Posted on by Gary McCurdy

Error and/or relief

The court erred when it failed to order joint and several liability for the victim’s restitution. The co-defendant was tried separately and sentenced by a different judge in an earlier proceeding.

First Holding:

In the co-defendant’s proceedings, the court ordered joint and several liability for the victim’s restitution, but in sentencing the defendant in this proceeding, the court (a different judge) made no mention of joint and several liability. A joint and several direct victim restitution order under section 1202.4(f) is not expressly permitted by statute, but is also not prohibited. The trial court therefore has discretion to make the obligation of multiple codefendants joint and several.

Authority:

People v. Arnold (1994) 27 Cal.App.4th 1096, 1099

People v. Neely (2009) 176 Cal.App.4th 787, 800

People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052

Second Holding:

A restitution order is intended to compensate the victim for the actual loss he or she incurred; however, it is not intended to provide the victim with recovery greater than that amount. When multiple defendants are culpable, the issue of double recovery is avoided when the trial court holds codefendants jointly and severally liable for the full amount of a crime victim’s economic loss.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172

People v. Fortune (2005) 129 Cal.App.4th 790, 794–795

People v. Leon (2004) 124 Cal.App.4th 620, 622 [a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Third Holding:

An abstract of judgment may be modified to reflect that the victim restitution order is a joint and several obligation.

Authority:

People v. Cornejo (2016) 3 Cal.App.5th 36, 43

People v. Neely (2009) 176 Cal.App.4th 787, 800–801 [ordering modification of the judgment to expressly state that the restitution order is joint and several as to the defendant and the codefendant]

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [to avoid double recovery, appellate court modified judgment to provide expressly that the direct victim restitution ordered is joint and several]

Fourth Holding:

As a matter of equity, and because there is no double recovery, the matter should be remanded so that the court can modify the restitution order to make liability joint and several. Section 1202.46 confers continuing jurisdiction to modify an order for victim restitution.

Authority:

PEN 1202.46

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

Gary Musings, Triggered By Third Holding:

Gary Musings note: I think the “Third Holding” and the authorities cited by the court demonstrate a prime example of the importance of reading the cases cited, and do not simply rely on what I have written in these summaries. A critical component of this decision that causes me pause is that the trial court did NOT make an order for joint and several liability; it apparently made no comment on it at all. This is not a case where the record shows that the court did so order but the order didn’t get reported properly in the abstract of judgment or minute order. It is not a case where the judge made comments indicating an intent to order joint and several liability, but the order was not expressed by the court. This is a case where the judge simply gave no indication at all regarding joint and several liability with the co-defendant who had been sentenced in a different proceeding.

First, I do not doubt that the Court of Appeal has the authority to modify the judgment OR the abstract of judgment. Section 1260 states, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

But if I had submitted a brief that relied on the Cornejo, Neely, and Blackburn cases as authority for the court to actually change a judgment by ordering modification of the abstract of judgment, I think I could legitimately expect the opposition to point out the following rebuttals.

(A.) One cannot tell from the Cornejo decision whether the trial court had ordered joint and several liability but it wasn’t reflected in the abstract, or whether the trial court was silent and the appellate court simply modified the judgment by modifying the abstract (which is what happened in this Case 000701). Thus, we cannot determine whether the modification simply recorded the actual order in the abstract of judgment or the appellate modified the judgment. We don’t know.

(B.) In Neely, the trial court DID order joint and several liability, and the abstract simply did not reflect that, so the appellate court ordered the abstract amended to reflect what the trial court ordered. (That is NOT what happened in this Case 000701.)

(C.) In Blackburn–a case somewhat similar to this Case 000701 in that both defendants were sentenced at different times–the appellate court concluded that the trial court DID intend joint and several liability. Blackburn said, “The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. It seems glaringly obvious that is what it did here. In this light, there is no double recovery; nor is Jackson entitled to have Blackburn’s restitution obligation credited against his. Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.”

In other words, Blackburn approached it by clarifying what was “glaringly obvious”–that the trial court actually did order joint and several liability.

I think this points out the importance of actually reading the cases that you, as the defense attorney, intend to rely on, AND of actually reading the cases that your opposition cites.

And don’t stop there. Suppose Case 000701 was actually a published opinion, and you wanted to rely on it to get the appellate court in your client’s case to modify the abstract of judgment. If all you cited was the published decision in People v. Case 000701, you MIGHT prevail. But if your opposing party delved deeper, it could respond with an argument discounting the authority of People v. Case 000701, because Case 000701 (arguably) relied on cases that were not authority because they really did not have the same situation as People v. Case 000701. Remember the appellate principle: A case is not authority for propositions not considered. (People v. Chavez (2020) 54 Cal.App.5th 477, 480).

 

Sentencing

Case 000700

Posted on by Gary McCurdy

Error and/or relief

It appears that the trial court miscalculated the defendant’s credit for time served. The matter is remanded for it to recalculate the credit. The People do not dispute that the custody credits may have been incorrectly calculated, but that the record is not clear as to the date of defendant’s release on bond. The People recommend a return to the trial court for it to recalculate the custody and conduct credits. Based on the People’s concession, we will order limited remand to the trial court to calculate presentence custody credits.

Holding:

Prisoners confined to jail prior to sentencing for a felony conviction are among those entitled to Penal Code section 4019 credits.

Authority:

People v. Duesler (1988) 203 Cal.App.3d 273, 275

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and 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. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether 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 the Three Strikes law.

The Supreme Court concluded 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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

Amelioration, Appellate Principles, Sentencing

Case 000698

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall under section 1172.6 on the grounds that he had previously filed a petition that was denied. Because the record demonstrates that the defendant is prima facie eligible for relief under case law that has emerged since his original petition was denied in 2020, we remand the matter to the trial court with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6(d).

First Holding:

Although the elements of collateral estoppel are satisfied, an equitable exception to that doctrine arises when there has been a significant change in the law since the initial ruling that warrants reexamination of the issue.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454

Second Holding:

In 2018, the Legislature, through SB 1437, amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. In 2021, through SB 775 the Legislature clarified that the amendments made by SB 1437 were also intended to eliminate any other theory of imputed-malice murder liability.

A defendant seeking relief under section 1172.6 must attest to the following: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder under which malice is imputed to a person based solely on that person’s participation in a crime. (2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder. (3) The petitioner could not presently be convicted of murder under current law.

Upon receipt of a facially sufficient petition, the trial court shall appoint counsel for petitioner if requested. The trial court then assesses whether the petitioner is prima facie eligible for relief. If the court determines that the petitioner has made a prima facie showing of eligibility for relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Third Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. The doctrine is intended to protect litigants from the burden of relitigating an identical issue with the same party or his privy while promoting judicial economy by preventing needless litigation.

Collateral estoppel has five elements.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. While satisfaction of these elements is necessary to invoke the equitable doctrine of collateral estoppel, it is not always sufficient. Even if the elements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 451-452, 454

Fourth Holding:

In denying the defendant’s earlier petition, the court stated that at no time did the defense or prosecution argue the theory of natural and probable consequences at trial. The only homicide theory the parties argued to the jury] was that the defendant was an aider and abettor of a planned assassination. Three years after that denial of the petition, Lee held that, despite the prosecution (in Lee) arguing a single theory to the jury, the instructions were not so limited and permitted the jury to find the defendant guilty on a theory not argued by the prosecution.

The Lee court did not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because it did not have the full record before it. The Lee court was therefore unwilling to conclude, based solely on the prosecution’s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice. The same reasoning applies in the instant case.

Authority:

People v. Lee (2023) 95 Cal.App.5th 1164, 1188

Fifth Holding:

Lee constitutes a significant development or clarification of the law. Because the trial court did not have the benefit of Lee when it issued its order, foreclosing a re-examination of the defendant’s arguments would be unfair.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454 [an exception to collateral estoppel is when there is a significant change in the law]