Category Archives: Sentencing

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

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

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878

Third 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

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant 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. The changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

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

People v. Arellano (2024) 16 Cal.5th 457, 468

People v. Mares (2024) 99 Cal.App.5th 1158, 1166

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.

Authority:

PEN 1172.6(c)

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

People v. Patton (2025) 17 Cal.5th 549, 558–559

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

Authority:

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

Fourth Holding:

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

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

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]

Elements of crime, Sentencing, Standard of review

Case 000461

Posted on by Gary McCurdy

Error and/or relief

We direct the trial court to modify the judgment to correct a sentencing error on the defendant’s sentence for attempted kidnapping.

First Holding:

We review unauthorized sentences de novo. A computational error that leads to an unauthorized sentence can be corrected at any time.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1140

People v. Turrin (2009) 176 Cal.App.4th 1200, 1205

Second Holding:

Kidnapping is punishable by three, five, or eight years in state prison. The sentence for an attempted offense is one-half of the sentence for the completed offense. Thus, attempted kidnapping would be punishable by 18 months, 30 months, or four years. However, any subordinate counts to be served consecutively are only given one-third of the middle term. Here, the trial court used count 2 (assault with a deadly weapon) as the principal count for the determinate term.

This made count 3, the attempted kidnapping, a subordinate term. Since the court imposed a consecutive sentence for this count, the court was only authorized to impose one-third of the middle term, which is 10 months. However, the court stated one-third the middle term was two years and six months. The court clearly intended to pronounce the correct sentence but miscalculated or misspoke as to the actual length of the term. The abstract of judgment reflects the incorrect calculation and should be amended to reflect 10 months for count 3.

Authority:

PEN 208

PEN 664

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

People v. Wilson (2013) 219 Cal.App.4th 500, 518 [reviewing court has authority to correct unauthorized sentence]

Third Holding:

As to his convictions and punishment for murder and robbery, section 654 prohibits punishment for both murder and the target offense when the prosecution relies only on a theory of first degree felony murder. However, if the prosecution offers an alternate theory such as premeditation, and there is evidence to support the alternate theory, then the court may properly impose separate sentences for the murder and the underlying felony.

Authority:

People v. Carter (2019) 34 Cal.App.5th 831, 841

Fourth Holding:

We use the substantial-evidence standard to assess the trial court’s factual findings, implicit or explicit, of whether there was a course of conduct with a single criminal objective. We review the trial court’s legal conclusions de novo. We look at the entire record in the light most favorable to the verdict.

Authority:

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Perry (2007) 154 Cal.App.4th 1521, 1524

Fifth Holding:

Section 654(a) prohibits multiple punishments for actions that fall within the same course of conduct in which the perpetrator had a single intent and objective. A defendant may be punished only once if all the crimes were merely incidental to or were the means of accomplishing a single objective. If a defendant had multiple, independent criminal objectives, he or she may be punished for each crime, even if the crimes had common acts or were parts of an otherwise indivisible course of conduct. The applicability of section 654 turns on whether the defendant had multiple criminal objectives, not whether an act occurred during the commission of a crime.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007

Sixth Holding:

We review instructional error de novo. We view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction impermissibly. We assume jurors are intelligent and capable of understanding and correlating instructions.

Authority:

People v. Ocegueda (2023) 92 Cal.App.5th 548, 557