Category Archives: Sentencing

Discretion, Sentencing

Case 000636

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded to the lower court following the defendant’s first appeal in this case so that it could exercise its discretion to strike the vicarious gun use enhancements. On resentencing following the defendant’s first appeal in this case, the trial court imposed enhancements for the personal use of a firearm (sec. 12022.53(b), in lieu of the vicarious liability enhancements found true by the jury under subdivisions (d) and (e)(1) of section 12022.53.

The personal use of a firearm enhancements must be vacated because there was no jury finding that the defendant had personally used a firearm during the offense. The vicarious enhancement must be reimposed, and the matter should be remanded back to the trial court so that it may exercise its discretion to strike those enhancements.

First Holding:

A trial court has discretion to strike a section 12022.53(d) firearm enhancement and impose a lesser uncharged enhancement under subdivisions (b) or (c). A trial court is not categorically prohibited from imposing an uncharged, lesser-included enhancement when the prosecution has alleged the greater enhancement and the facts supporting the lesser enhancement have been alleged and found true.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

Second Holding:

In Arellano, our Supreme Court held that a trial court resentencing a petitioner under section 1172.6 lacked authority to impose a firearm enhancement that had never been admitted or found true by a trier of fact. The enhancement had been dismissed as part of a negotiated disposition, and the trial court relied on police reports and other hearsay summaries to conclude that the defendant was armed.

The court rejected this approach and explained that resentencing under section 1172.6 is limited to the target offense or underlying felony. A similar defect occurred here. The jury never found that the defendant personally used a firearm. Instead, the jury returned true findings only under section 12022.53, subdivisions (d) and (e)(1), which required proof that a principal discharged a firearm during a gang-related offense, causing great bodily injury or death.

As in Arellano, the trial court later relied on its own factual findings from a collateral proceeding (a separate hearing on the defendant’s petition for resentencing under section 1172.6) to conclude that the defendant personally used a firearm during the offense. The trial court’s finding in a collateral proceeding was not sufficient to support imposition of the enhancement.

The matter is remanded for resentencing, during which the court shall exercise its discretion under section 1385 and Tirado to determine whether to strike or dismiss the lawfully adjudicated enhancements.

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 464-465

Amelioration, Appellate Principles, Fines and fees, Sentencing

Case 000635

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider the recent decision in Kopp on the imposition of fines and fees, and also to conduct a full resentencing in light of this remand for resentencing.

First Holding:

Kopp clarified the standards applied when a defendant challenges the imposition of certain fines and fees on the grounds that they are unlawful because he cannot afford to pay them. We remand the matter to the trial court to apply those standards regarding its imposition of various fines and fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Second Holding:

Because his conviction is not final on direct review, the defendant may be entitled to the benefit of various intervening changes in the law, including AB 333 (gang allegations) and the Racial Justice Act. AB 333, for example, limits what predicate offenses the People can now use to prove a group is a criminal street gang under Penal Code section 186.22.

On remand, the defendant can ask the trial court to provide relief under relevant intervening ameliorative sentencing laws, including but not limited to SB 81, 483, 567, and 1393; AB 333 and 518, as well as any appropriate challenges under the Racial Justice Act. But this court need not decide which intervening laws apply retroactively and whether their application requires any retrial or change in sentence.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 448

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

People v. Buza (2018) 4 Cal.5th 658, 693 [courts abide by a cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more]

Amelioration, Sentencing

Case 000634

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied Penal Code section 1172.6 resentencing relief at the prima facie stage. We reverse the trial court’s order denying resentencing relief and direct the trial court to issue an order to show cause.

First Holding:

SB 1437, effective as of January 1, 2019, made ameliorative changes to our state’s homicide law. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. This means, for instance, that a defendant is no longer guilty of murder as an aider and abettor solely because the natural and probable consequences of that other crime included a confederate’s commission of murder.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

These ameliorative changes apply retroactively through the resentencing process set forth in section 1172.6. Those convicted of murder or attempted murder under certain imputed malice theories may seek resentencing. So may a person convicted of manslaughter who was charged with murder when three conditions apply. First, the charging document allowed the prosecution to proceed under a theory of murder in which malice is imputed to a person based solely on that person’s participation in a crime. Second, the petitioner accepted a manslaughter plea offer in lieu of a trial on such a murder charge. And third, the petitioner could not presently be convicted of murder because of the changes to homicide law that took effect in 2019.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

Upon receipt of a facially sufficient petition — along with briefing in opposition or support — the trial court holds a hearing to determine whether a petitioner has made a prima facie case for relief. If so, the court issues an order to show cause and then holds an evidentiary hearing to determine entitlement to relief. If not, the court denies the petition.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 559, 562

Fourth Holding:

We independently review a trial court’s conclusion that a petitioner failed to make a prima facie case for relief. The record of conviction informs the prima facie determination. And that record includes a preliminary hearing transcript preceding a guilty plea. A court, however, may not engage in factfinding, weigh the evidence, or make credibility determinations at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

People v. Lewis (2021) 11 Cal.5th 952, 971, 972

People v. Patton (2025) 17 Cal.5th 549, 559, 568

Fifth Holding:

A review of the preliminary hearing transcript in this case reveals that it possible the defendant could have been convicted at trial under a now-invalid theory. There was witness testimony that two unidentified men initiated the attack, which raises at least a triable issue as to whether the defendant was the actual killer, and if he was not, whether he knew of and intended to aid in the criminal purpose of the actual killer as required for direct aiding and abetting. Given this state of the record of conviction, the defendant’s guilty plea to voluntary manslaughter does not prove that he could still be convicted of murder under current law.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213

People v. Patton (2025) 17 Cal.5th 549, 567 [A dispute regarding the basis of a conviction might arise if, for instance, a petitioner points to specific facts that identify someone else as the direct perpetrator.]

Appellate Principles, Duty of the court, Sentencing, Standard of review

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Amelioration, Juveniles, Retroactivity, Sentencing

Case 000632

Posted on by Gary McCurdy

Error and/or relief

The trial court did not determine whether the defendant’s prior juvenile adjudication in 2013 qualifies as a strike under the current version of section 186.22(b). Further, the prior juvenile adjudication cannot serve as the basis for a prior serious felony enhancement. We remand the matter to permit retrial of the gang enhancement under the current section 186.22 and for a full resentencing following retrial or the People’s election not to pursue retrial.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed 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. Tran (2022) 13 Cal.5th 1169, 1206,

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

Second Holding:

Even if a defendant has suffered a conviction under the prior version of section 186.22, courts must look to current law, as amended in AB 333, to determine 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. The defendant’s prior conviction in this case could qualify as a strike offense only with the gang enhancement found true prior to AB 333. We must vacate the true finding on the strike prior and remand to permit the People to retry the gang enhancement under current law to determine whether the defendant’s prior conviction qualifies as a strike prior.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 587, 603-604, 607

Third Holding:

The defendant’s juvenile adjudications cannot be considered a prior serious felony conviction for purposes of the mandatory five-year enhancement in section 667(a).

Authority:

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

People v. West (1984) 154 Cal.App.3d 100, 110

Fourth Holding:

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.

Authority:

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