Category Archives: Sentencing

Amelioration, Probation Parole PRCS, Sentencing

Case 000562

Posted on by Gary McCurdy

Error and/or relief

The trial court denied a petition by defendant for resentencing under what is now Penal Code section 1172.75 because, by the time the trial court conducted a resentencing hearing, the defendant had been released on parole. This was error, and the matter is remanded for resentencing.

First Holding:

Under section 1172.75, unless imposed for certain specified sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is invalid. Section 1172.75 also provides for resentencing of individuals upon whom now-invalid prison prior enhancements under section 667.5 were imposed. This resentencing proceeds in three stages.

The first stage, which involves correctional officials, is identification: Section 1172.75 requires state and county correctional officials to identify those persons in their custody currently serving a term for a judgment that includes [a now-invalid prison prior] enhancement and inform the sentencing court.

The second stage, which is conducted by the courts, is verification: The sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement that is now invalid.

The third stage, which is also conducted by the courts, is actual resentencing: If a defendant has been identified as eligible, and a court has verified eligibility, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 does not require a defendant who is incarcerated and eligible at the beginning of the resentencing process under the statute to remain incarcerated until actual resentencing.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057

Third Holding:

Because section 1172.75 requires correctional officials to identify persons in custody serving a term, and a term is ordinarily understood to be time served in prison, only defendants who are incarcerated at the time of identification are eligible for resentencing under section 1172.75.

However, at the verification stage section 1172.75 requires courts to determine not that the identified persons are in custody serving a term, but rather that the current judgment includes a sentencing enhancement described in section 1172.75(a).

Moreover, because section 1172.75 expressly recognizes that there may be a substantial time lag between the identification and resentencing stages, it can be concluded that the Legislature intended the court-related criterion for resentencing eligibility to operate independently from earlier conditions applicable at the correctional official identification stage and did not include continued incarceration as a requirement at the verification stage.

Resentencing an individual who is on parole at the time of resentencing is not an idle act, because resentencing may reduce or terminate the period of parole.

Authority:

People v. Jefferson (1999) 21 Cal.4th 86, 95

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1067

Fourth Holding:

We also do not reach, and express no view on, whether a parolee serving an indeterminate sentence is entitled to termination, or reduction in the period, of parole if upon resentencing the sentence is reduced.

Authority:

In re Lira (2014) 58 Cal.4th 573, 578-582

In re Bush (2008) 161 Ca1.App.4th 133, 140-143

Appellate Principles, Jurisdiction, Sentencing

Case 000560

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This appeal was dismissed as from a nonappealable order, but it is summarized for providing numerous principles regarding appealability. It purported to be an appeal from a postconviction motion to strike restitution fines that were imposed more than 10 years earlier. The authority relied on by the appellant was section 1465.9, which states, “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.”

(The complication in this case is that the fines were imposed in 1989 under Government Code section 13967. The trial court pointed out that the section was repealed in 2003, and concluded that the change reflected in Penal Code section 1465.9 did not apply because no restitution fines were imposed under section 1202.04.)

First Holding:

Before we may consider the merits of the defendant’s appeal, we must first determine whether the trial court’s order denying his postjudgment motion to vacate his restitution fines is appealable. 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. An order made after judgment is appealable if it affects a defendant’s substantial rights.

A trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b). Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.

In this case, the defendant was sentenced in 1989 and began serving his sentence that same year. This court affirmed the judgment on appeal, and the remittitur issued by April 1991. Thus, absent an exception to the general common law rule, the trial court lacked jurisdiction in 2025 to grant the defendant’s petition and resentence him by vacating his restitution fines. 

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 254 [Because an appealable judgment or order is essential to appellate jurisdiction, the appellate court must consider the question of appealability sua sponte, and dismiss the appeal if the judgment or order is found to be nonappealable]

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

People v. E.M. (2022) 85 Cal.App.5th 1075, 1085

People v. Roy (2025) 110 Cal.App.5th 991, 997

Second Holding:

Where a defendant whose conviction is final files a statutorily unauthorized freestanding petition, both the court below and this court lack jurisdiction to consider the arguments raised therein. In that circumstance, the appeal must be dismissed.
.

Authority:

People v. Garcia (2025) 114 Cal.App.5th 139, 144

Amelioration, Sentencing

Case 000559

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage, because the record did not conclusively demonstrate ineligibility as a matter of law, even though he admitted the personal use of firearm enhancements as part of his plea bargain. Specifically, in his plea colloquy, the defendant did not admit facts or a specific theory of attempted murder liability that would make him ineligible for relief.

First Holding:

Effective 2019, SB 1437 amended sections 188 and 189 to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. Under the amended law, malice cannot be imputed to a person based solely on his or her participation in a crime.

In addition to amending sections 188 and 189, SB 1437 created a procedural mechanism, now codified in section 1172.6 for individuals convicted of murder under the former versions of sections 188 and 189 to petition the trial court for resentencing. Two years later, SB 775 expanded section 1172.6 relief to individuals convicted of attempted murder under the natural and probable consequences doctrine and manslaughter. Section 1172.6 applies to individuals who pleaded guilty to attempted murder and would have been subject to prosecution for attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Rivera (2021) 62 Cal.App.5th 217, 227

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

People v. Estrada (2024) 101 Cal.App.5th 328, 335, 336

Second Holding:

To be eligible for relief under section 1172.6, a defendant must make a prima facie showing that (1) the complaint or information allowed the People to prosecute the defendant for attempted murder under the natural and probable consequences doctrine; (2) the defendant was convicted of attempted murder or entered a plea to attempted murder, and (3) the defendant could not presently be convicted of attempted murder under the current versions of sections 188 or 189.

Authority:

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

Third Holding:

The trial court’s prima facie inquiry is limited. The court must accept the defendant’s allegations as true and assess whether the defendant would be entitled to relief if the allegations were true. If the defendant makes a prima facie showing, the court must issue an order to show cause and hold an evidentiary hearing where the People must prove beyond a reasonable doubt that the defendant could be convicted of attempted murder under the current versions of section 188 or 189.

Authority:

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

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

Fourth Holding:

A trial court may deny a resentencing petition at the prima facie stage only if the petitioner is ineligible for relief as a matter of law. In making its determination, the court may examine the record of conviction. At this stage, the court should not reject the factual allegations in the defendant’s petition on credibility grounds or engage in factfinding by weighing the evidence or exercising its discretion.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Strong (2022) 13 Cal.5th 698, 708

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

Discretion, Effective assistance of counsel, Elements of crime, Sentencing

Case 000558

Posted on by Gary McCurdy

Error and/or relief

The restitution amount is wrong, and the protective order is unauthorized.

First Holding:

Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.

Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 631-632

People v. Doron (2023) 95 Cal.App.5th 1, 6

People v. Trujillo (2015) 60 Cal.4th 850, 856

People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]

Second Holding:

In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.

It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.

Authority:

People v. Mickel (2016) 2 Cal.5th 181, 198

Strickland v. Washington (1984) 466 U.S. 668, 687-692

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

People v. Wilson (1992) 3 Cal.4th 926, 936

Third Holding:

We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 663

People v. Jessee (2013) 222 Cal.App.4th 501, 507

People v. Hove (1999) 76 Cal.App.4th 1266, 1275

People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899

Fourth Holding:

The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 854

Fifth Holding:

Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.

Authority:

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

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000557

Posted on by Gary McCurdy

Error and/or relief

The court erred in placing the defendant on probation for a period of five years, because the maximum allowed in this case is three years. The matter is remanded for resentencing. There are also errors in the abstract of judgment that should be corrected in keeping with the resentencing.

First Holding:

Under the Penal Code, in granting probation, a trial court generally may suspend imposition or execution of sentence “for a period of time not exceeding two years. However, this two-year limit does not apply where an offense includes specific probation lengths within its provisions. Nevertheless, for such offenses, probation may continue for a period of time not exceeding the maximum possible term of the sentence.

Under Vehicle Code section 23600, under which violations of section 23152 are punishable, a period of probation not less than three nor more than five years may be imposed. But the defendant faced a maximum possible term of imprisonment of only three years. Accordingly, under section 1203.1(l)(1), the maximum authorized term of probation was three years, as the People concede.

Authority:

PEN 1203.1(a)

Second Holding:

An unauthorized sentence is subject to correction at any time without objection.

Authority:

People v. Landry (2016) 2 Cal.5th 52, 127, fn. 22

Third Holding:

The minute order contains errors, including a lab fee that was not ordered and transposing the fines to $2905 rather than the $2095 that was actually ordered by the court. Though because we are remanding for resentencing and thus the issue is moot, we point out that the minute order should accurately reflect fines, fees, and assessments pronounced by the trial court.. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order. In addition, the trial court retains the authority to correct clerical errors.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

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