Category Archives: Sentencing

Abstracts and Minutes, Duty of the court, Sentencing

Case 000569

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing on a prior strike where the defendant did not waive a trial and did not admit the prior. Errors in the minute order must be corrected to reflect that a sentence on one count was 364 days in the county jail, not 365 days.

First Holding:

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The prosecution bears the burden of proving a strike prior allegation beyond a reasonable doubt.

Authority:

PEN 1158

People v. Frierson (2017) 4 Cal.5th 225, 233

Second Holding:

This procedure was not followed here. While the defendant expressed his intention to admit the strike prior, the record shows he never actually did so. Nor did a jury or the trial court find beyond a reasonable doubt that the defendant suffered the alleged strike prior. Accordingly, we must reverse the true finding as to the strike prior allegation and remand for the trial court to hold a hearing on whether the defendant elects to admit the strike prior allegation or proceed to trial on it and hold further proceedings accordingly.

Authority:

People v. Strike (2020) 45 Cal.App.5th 143, 154 [when true finding on strike prior allegation is reversed, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation]

Third Holding:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. Count 2 is subject to this 364-day limit on imprisonment. Yet here, the Felony Minutes—Pronouncement of Judgment dated specify the defendant’s term of imprisonment for count 2 to be 365 days. Under section 18.5, this length of imprisonment is improper. Accordingly, on remand we direct the trial court to amend the Felony Minutes—Pronouncement of Judgment to reflect a term of imprisonment of 364 days on count 2.

[GARY Note: the court listed no authority for directing the correction of the minute order, so I have listed some cases that it could have relied on.]

Authority:

PEN 18.5

People v. Zackery (2007) 147 Cal.App.4th 380, 387-38

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes, Duty of the court, Juveniles, Sentencing

Case 000568

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in not declaring whether it found the minor’s wobbler offense (section 29610) to be a misdemeanor or a felony.

First Holding:

An offense under Penal Code section 29610 is a wobbler punishable by imprisonment or jail.

Authority:

In re D.D. (2015) 234 Cal.App.4th 824, 829

Second Holding:

Welf. and Inst. Code section 702 requires the juvenile court to declare on the record at a hearing before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration. The juvenile court’s failure to make this declaration as to each wobbler offense is error. A juvenile court’s failure to comply with section 702’s express declaration requirement must be corrected on remand unless the record as a whole establishes that the juvenile court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Third Holding:

The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment. Although the minute order reflects that the court declared the offense in count 1 a felony, the reporter’s transcript of the oral pronouncement reflects no such declaration. The latter controls.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340

Sentencing

Case 000566

Posted on by Gary McCurdy

Error and/or relief

It was error to rely on the same facts to impose an enhancement and the upper term.

First Holding:

Generally, error occurs when the same facts are considered both to aggravate the base term and to impose an enhancement.

Authority:

1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

People v. Scott (1994) 9 Cal.4th 331, 350

Second Holding:

Where there is an improper dual or overlapping use of facts, remand is required if it is reasonably probable the defendant would obtain a more favorable result absent the error.

Authority:

People v. Barker (1986) 182 Cal.App.3d 921, 941

Third Holding:

A trial court may impose an upper term sentence based on a single, properly proven aggravating circumstance only, if, in the court’s discretion, that circumstance alone justifies a sentence exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 764

Appellate Principles, Sentencing

Case 000564

Posted on by Gary McCurdy

Error and/or relief

This is another case where no relief was granted, but it contains important information on how an otherwise nonappealable order might become appealable.

The defendant filed a motion for resentencing under section 1172.1. While a defendant may invite the court under that section to resentence him, he has no right to make a motion under that section. (It can be triggered by the custodial officials or the prosecutors or on the court’s own motion, however.)

Had the court simply declined to respond to the defendant’s “motion,” or simply denied it outright, the defendant would have no right to appeal. The court, however, considered the motion and denied it on its merits. This created a substantial right for the defendant and permitted appellate review. We conclude the trial court evaluated and denied defendant’s petition on the merits, thus affecting defendant’s substantial rights, and thus the denial is an appealable order.

First Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Second Holding:

Section 1172.1(a)(1), effective January 1, 2024, provides that the trial court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Section 1172.1(c) expressly states, however, that a defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond. Thus, a defendant who chooses to file an unauthorized request for resentencing has no right to a ruling.

Authority:

PEN 1172.1

People v. Roy (2025) 110 Cal.App.5th 991, 998,

Third Holding:

The second sentence in section 1172.1(c) means that a defendant does not have a substantial right at stake when they request recall and resentencing.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1045

People v. Roy (2025) 110 Cal.App.5th 991, 998-999

People v. Faustinos (2025) 109 Cal.App.5th 687, 696

Fourth Holding:

Where the trial court undertakes to make a resentencing decision on the merits after a defendant has filed a petition pursuant to section 1172.1, the defendant is entitled to an appeal. Here, the trial court effectively evaluated and denied defendant’s petition on the merits. After defendant filed his petition, the trial court set a status conference and a briefing schedule.

When the People asked the trial court whether it would consider recalling defendant’s sentence, the trial court directed the People to address the merits. Additionally, the trial court invited the victims to be heard at a hearing, it considered the parties’ arguments, and it considered whether resentencing defendant would be in the interest of justice. In short, the trial court evaluated and denied defendant’s petition on the merits, thus affecting his substantial rights.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1172-1173

People v. Olea (2025) 115 Cal.App.5th 889, 902

Fifth Holding:

Defendant claims the enactment of Evidence Code section 352.2 constitutes such a change in sentencing laws. However, he offers no authority or reasoned argument to support his claim. As a result, we may deem the claim forfeited.

Authority:

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

People v. Stanley (1995) 10 Cal.4th 764, 793

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless 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

Authority:

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

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]