Category Archives: Statutory interpretation

Amelioration, Sentencing, Standard of review, Statutory interpretation

Case 000903

Posted on by Gary McCurdy

Error and/or relief

A defendant sentenced to LWOP is not rendered ineligible for relief under section 1172.75 unless the person has been convicted of a sexually violent offense.

First Holding:

In 2021, the Legislature declared legally invalid all prior-prison-term sentencing enhancements imposed pursuant to Penal Code section 667.5(b) before January 1, 2020, except in cases involving terms for sexually violent offenses. Section 1172.75 established a procedure for resentencing individuals serving a term for a judgment that includes such enhancements.

Three years later, the Legislature amended the statute to preclude resentencing for an individual who has been convicted of a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole (LWOP).

Authority:

PEN 1172.75(f)

Second Holding:

The defendant was sentenced to LWOP, but has not been convicted of any sexually violent offense. Having examined the text and the legislative history of section 1172.75(f), we conclude the Legislature intended to exclude from resentencing only those individuals who were convicted of a sexually violent offense and sentenced to death or LWOP.

We review questions of statutory interpretation de novo. When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation.

We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided.

The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

People v. Cornett (2012) 53 Cal.4th 1261, 1265

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

People v. Robinson (2026) 120 Cal.App.5th 516, 522, review granted July 15, 2026, S297048

Third Holding:

Our colleagues in the Fifth District Court of Appeal in Robinson,recently considered how to interpret section 1172.75(f). The court first observed that the ordinary and usual usage of ‘and’ is as a conjunctive, meaning an additional thing, also, or plus.

Further, the Legislature had used the term “and” and “or” in different parts of subdivision (f), which suggested that the Legislature understood the difference between the typically conjunctive “and” and the typically disjunctive “or.” It therefore appeared the challenged portion of subdivision (f) was intended to be construed conjunctively to exclude an individual who has been convicted of a sexually violent offense and sentenced to death or a life term without the possibility of parole.

The Robinson court further noted that even if it were to assume the plain language of section 1172,75(f) was ambiguous as to whether it should be read conjunctively or disjunctively, the legislative history supported a conjunctive interpretation.

As the plain meaning of the text and the legislative history both support a narrow reading of section 1172.75(f), we agree with the court’s holding in Robinson and find that section 1172.75(f) applies only to individuals serving a sentence of death or LWOP who are also convicted of a sexually violent offense as defined by Welfare and Institutions Code section 6600(b). Because petitioner was not convicted of a sexually violent offense, he is eligible for recall and resentencing under section 1172.75.

Authority:

People v. Robinson (2026) 120 Cal.App.5th 516, 524-526, review granted July 15, 2026, S297048

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case 000886

Posted on by Gary McCurdy

Error and/or relief

1n 1991, for a crime committed in 1989, the defendant was sentenced to life without the possibility of parole (LWOP). When his case came up for resentencing under section 1172.75 in 2025, the court believed its only discretion was to impose less than the upper term on the determinate portion of his sentence. Defense counsel agreed. This was error. The court also erred in its calculation of credit for time served. And the restitution fine must be struck.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a sentence enhancement of one additional year for each of a defendant’s prior prison or jail terms. Section 1172.75(a) now provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b) is legally invalid.

Section 1172.75(b) and (c) mandate that the Department of Corrections and Rehabilitation identify eligible individuals whose sentences include now-invalidated section 667.5 enhancements, and that the trial court shall recall the sentence and resentence the defendant.

While conducting the resentencing, section 1172.75(d)(2), provides the express instruction that the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

Section 190.2(a) provides that where there has been a finding of certain enumerated special circumstances in connection with a defendant who has been found guilty of first degree murder, the penalty is death or LWOP. Section 1385 previously provided the trial court with the discretion to strike or dismiss the special circumstances.

Although the statute only authorizes such relief upon motion of the court or application of the prosecution, the defendant nevertheless has the right to invite the court to exercise its power by an application to strike a count.

Failure by a defendant to make such a request under section 1385 results in forfeiture of the issue. In the interests of justice, and in consideration of defendant’s alternative argument of ineffective assistance of counsel, we exercise our discretion to reach a question that has not been preserved for review by a party.

Authority:

PEN 190.2(a)

PEN 1385

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141, 1144

People v. Coleman (2024) 98 Cal.App.5th 709, 724

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

Third Holding:

Contrary to Section 1385, however, section 1385.1 provides that a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. The section was enacted as of June 6, 1990, via voter initiative Proposition 115. The dispute here centers around whether section 1385.1 serves as a bar to the trial court’s discretion to strike section 190.2 special circumstances when the court is resentencing a defendant pursuant to section 1172.75 for a pre-June 6, 1990, crime.

Authority:

PEN 1385.1

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Fourth Holding:

Ordinarily, we review the trial court’s sentencing decisions for abuse of discretion. However, defendant argues pursuant to McDavid that the trial court necessarily abused its discretion when it failed to strike his special circumstances because it was unaware that it had any discretion to do so.

We therefore examine whether the trial court had any discretion in this regard, which is a question of statutory interpretation to be reviewed de novo.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730, 757

People v. McDavid (2024) 15 Cal.5th 1015, 1023

Fifth Holding:

The Nguyen court noted that section 1385.1 operates only prospectively, therefore, a trial court may dismiss a special circumstance allegation attached to any murders committed before June 6, 1990, the date that section 1385.1 became effective. Nguyen specifically relied upon Tapia.

In Tapia, Proposition 115 took effect while the defendant was in the process of being prosecuted for first degree murder. The defendant challenged the trial court’s decision to conduct voir dire pursuant to the new Proposition 115 procedures.

In examining whether Proposition 115’s provisions could be applied to crimes committed prior to its effective date after consideration of ex post facto concerns, the Supreme Court separated the provisions into four separate categories depending on their impact upon defendants.

Relevant to this inquiry, the high court expressly categorized section 1385.1 as falling within the category of provisions that change the legal consequences of criminal behavior to the detriment of defendants and therefore cannot be applied to crimes committed before the measure’s effective date.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-287, 297

Sixth Holding:

The mandate in section 1172.75(d)(2), that the trial court apply any other changes in law that reduce sentences or provide for judicial discretion” evidences a legislative intent that defendants are to be treated with more leniency, not less, when being resentenced pursuant to this statute. Because the trial court clearly expressed more than once its belief that it did not have any discretion with respect to the LWOP sentence on Count 1, we deem the court to have abused its discretion and reverse.

Authority:

PEN 1172.75(d)(2)

People v. McDavid (2024) 15 Cal.5th 1015, 1023 [A court acting while unaware of the full scope of its discretion is deemed to have abused it.]

Seventh Holding:

The court court failed to award the defendant 2 days of credit for time served, and we modify the judgment accordingly.

(Gary note: The court did not cite any authority, but it seems obvious that the court has the power to modify the credit for time served to the correct number. I have cited authority the court could have relied on. The issue does not seem so much a matter of the trial court refusing to award credit; rather, it was a mathematical error. I speculate that perhaps the court did not award credit for the first day in custody. Counting days is different than determining the number of days between dates. From January 1 through January 31 is 31 days, counting. But if you subtract January 1 from January 31, you will realize only 30 days.  For credit for time served, the correct number is the counting number–31 in my example.)

Authority:

PEN 2900.5

Eighth Holding:

As part of defendant’s original 1991 sentencing, the court ordered him to pay $10,000 to the state Restitution Fund pursuant to Penal Code section 1202.4 (formerly Govt. Code sec. 13967(a).) In light of section 1465.9, which compels that restitution fines older than 10 years be vacated, we vacate that fine. In Salstrom, the court determined that the reference to 10 years is from the date the restitution fine was originally ordered.

Resentencing does not reset the 10-year limitation. Applying section 1465.9 to reduce defendant’s sentence as part of a section 1172.75 resentencing hearing gives effect to both statutes.

Authority:

PEN 1465.9

People v. Giordano (2007) 42 Cal.4th 644, 652-653 [detailing the history of the restitution statutes]

People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601, review granted on unrelated issues, March 11, 2026, S295038

Mejia v. Reed (2000) 31 Cal.4th 657, 663 [when two codes are to be construed, they must be read together and so construed as to give effect, when possible, to all the provisions thereof]

Juveniles, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000862

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect maximum term for the juvenile, and one of the probation conditions was overbroad.

First Holding:

The court declared that the maximum confinement time for the minor was 16 years, when it fact the maximum was 10 years.

Welfare and Institutions Code section 726(d)(1) provides that if the minor is removed from the physical custody of the minor’s parent or guardian as the result of an order of wardship made pursuant to section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the middle term of imprisonment that could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

Authority:

WIC 726(d)(1)

Second Holding:

Section 726 defines the maximum term of imprisonment as the middle of the three time periods set forth in section 1170(a)(3) of the Penal Code, plus enhancements.

To the extent section 726 is ambiguous, we think it logical that the method for selecting the term for the underlying offense should apply in selecting the term for an enhancement.

Here, the middle term for the underlying offense is six years, and the middle term for the enhancement is four years, for a total of ten years.

Authority:

WIC 726(d)(2)

In re George M. (1993) 14 Cal.App.4th 376, 381 [interpreting prior version of section 726]

Third Holding:

The juvenile court ordered a total commitment of in terms of a number of days that exceed even the 16-year maximum confinement time in the court’s minute order. Rather than expressing the commitment in days, we will modify the disposition order such that appellant’s total commitment is for the maximum confinement period of 10 years.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 [remand unnecessary where maximum sentence had been imposed]

Fourth Holding:

Appellant’s probation conditions included the following: (1) “You shall not possess, nor shall you knowingly associate with anyone who possesses, any weapon, including, but not limited to firearms, pellet or BB guns, chemical weapons, a replica of any weapon, ammunition, or C02 canisters. You shall not remain in any vehicle where you know anyone has such a weapon or ammunition”; and (2) “You shall not associate with any person who is using or trafficking in any controlled substance, including marijuana.”

The juvenile court has wide discretion to select appropriate conditions, but a probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. While we generally review the imposition of probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo.

The two conditions at issue are overbroad because they encompass people who legally possess weapons and use controlled substances. We will modify these conditions to specify that they apply only to illegal possession or use. While the word “trafficking” seems to imply illegal conduct, to remove any doubt, we will also specify that the trafficking must be illegal. The condition prohibiting association with those using or trafficking in controlled substances lacks a knowledge requirement. Modification to impose an explicit knowledge requirement is necessary to render the condition constitutional.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Appleton (2016) 245 Cal.App.4th 717, 723

In re Sheena K. (2007) 40 Cal.4th 875, 892

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)