Ew, guys, I stepped in something!
Well, a couple of the summaries today are mighty long, but I thought they covered in some depth some important concepts. For example, in case 000095, there is a very nice discussion of what is necessary to aggravate a simple kidnapping into a more aggravated kidnapping (which carries a greater sentence) in the context of movement. Is a few feet enough? Is there a minimum distance? Is there a distance at which simply the distance itself constitutes aggravation?
And in case 000096, we see some examples on the elements the court is required to consider under Penal Code 1385 regarding dismissing aspects of the sentence under various circumstances. I think examples are nice, because they are something we can point to and say “See? THAT court did it!”
On the menu today, we’re offering
Kidnapping vs aggravated kidnapping.
Exercise of discretion to dismiss in the furtherance/interest of justice (in at least two of the cases).
Another instance of a need to update credit for time served.
More errors in failing to follow the procedure required under section 1172.6 (recall of sentence in light of changes in homicide law).
Failure to take a proper waiver of the constitutional right to have a jury determine most factors in aggravation results in a do-over.
Case: 000095
We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace, and remand for a full resentencing. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.
First Holding: Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm. [See] PC 209, subd. (b)(1)–(2); People v. Rayford (1994) 9 Cal.4th 1, 11–12; People v. Waqa (2023) 92 Cal.App.5th 565, 577; People v. Nguyen (2000) 22 Cal.4th 872, 886.
Second Holding: In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will. [See] People v. Williams (2017) 7 Cal.App.5th 644, 671.
Third Holding: Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated. [See] People v. Hin (2025) 17 Cal.5th 401, p. 470.
Fourth Holding: If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances. [See] People v. Daniels (1969) 71 Cal.2d 1119, 1140; People v. Power[(2008)] 159 Cal.App.4th 126, 139; People v. Leavel (2012) 203 Cal.App.4th 823, 834; People v. Dominguez (2006) 39 Cal.4th 1141, 1152; People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery].
Fifth Holding: In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [See] People v. Hartland (2020) 54 Cal.App.5th 71, 77.
Sixth Holding: Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances. [See] PC 1181, subd. 6; PC 1260; People v. Bailey (2012) 54 Cal.4th 740, 748; People v. Ellis (2025) 108 Cal.App.5th 590, 601; People v. Buycks (2018) 5 Cal.5th 857, 893.
Seventh Holding: Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense. [See] People v. Navarro (2007) 40 Cal.4th 668, 671.
Case: 000096
Because the superior court applied an incorrect legal standard in deciding whether to dismiss the five year enhancement, we reverse the judgment and direct the court to exercise its discretion whether to strike that enhancement and to resentence the defendant.
First Holding: By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements. [See] People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223.
Second Holding: We conclude the superior court erred by applying an incorrect legal standard in denying the defendant’s request to dismiss the five-year enhancement for the prior serious felony. Section 1385 provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so. It also provides that, in exercising its discretion, the court must consider and afford great weight to evidence offered by the defendant to prove any of nine listed mitigating factors, unless the court finds that dismissal of the enhancement would endanger public safety. If the court does not find dismissing an enhancement would endanger public safety, the court must consider whether the defendant has presented evidence of one or more of the mitigating factors listed in section 1385. If so, the court must engage in a holistic balancing with special emphasis on the [nine] enumerated mitigating factors and must dismiss the enhancement unless the court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. [See] PC 1385; People v. Walker (2024) 16 Cal.5th 1024, 1033, 1036.
Third Holding: Without the benefit of Walker, decided several months after the resentencing, the superior court did not apply the correct legal standard. It did not find that reducing the sentence by five years would endanger public safety. Nor did it consider dismissing the prior conviction that was more than five years old, instead relying on the fact that the original court found the prior conviction to be true. By deferring to the original trial court on whether to strike the serious felony conviction enhancement, the superior court ignored section 1172.75’s mandate to apply changes in law that reduce sentences or provide for judicial discretion. In 2015 the trial court had to impose the five-year prior serious felony enhancement under section 667, subdivision (a)(1), but effective 2019, Senate Bill No. 1393 gave trial courts discretion to strike that enhancement under section 1385. In addition, section 1172.75 authorized the superior court to consider postconviction factors, such as the defendant’s disciplinary record and rehabilitation while in prison, his age, and his physical condition—factors not available to the trial court in 2015. [See] People v. Carter (2023) 97 Cal.App.5th 960, 968 [simply striking the one-year enhancement imposed under the repealed portion of former section 667.5, subdivision (b), deprived the defendant of his right to full resentencing under the changes in the law]; People v. Coddington (2023) 96 Cal.App.5th 562, 567 [court erred by failing to provide the defendant with a full resentencing hearing, meaning a hearing in which he could have sought further sentencing relief under at least two other statutes that were enacted after his conviction]; People v. Rogers (2025) 108 Cal.App.5th 340, 361 [section 1172.75, subdivision (d)(3), promotes an examination of information and circumstances that did not exist at the time of the original sentencing which, in turn, evinces an intent that the resentencing court must sentence anew under present circumstances].
Fourth Holding: The superior court’s error was prejudicial because the record does not clearly indicate the court would have reached the same conclusion had it applied the correct legal standard. [See] People v. Salazar (2023) 15 Cal.5th 416, 424 [where the trial court fails to exercise informed discretion, 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]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [same]; People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remand was required where the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion].
Fifth Holding: On remand, the superior court should consider whether dismissing the prior serious felony enhancement and reducing the defendant’s sentence from 25 years six months to 20 years six months would endanger public safety. If the court does not make that finding, it should dismiss the enhancement, unless it finds substantial, credible evidence of countervailing factors that neutralize the great weight of any applicable mitigating circumstance enumerated in section 1385, subdivision (c)(2), including that the enhancement was based on a prior conviction that was more than five years old [See] People v. Gonzalez (2024) 103 Cal.App.5th 215, 230-231 [in assessing whether dismissing an enhancement would endanger public safety, the trial court should have considered the date on which the defendant could be released if the enhancement was dismissed, not only whether the defendant currently posed a danger to the public].
Sixth Holding: We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion. [See] People v. Moseley (2024) 105 Cal.App.5th 870, 874; People v. Garcia (2024) 101 Cal.App.5th 848, 855-856.
Seventh Holding: In reviewing matters of statutory interpretation we review the trial court’s decision de novo. [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 323; People v. Braden (2023) 14 Cal.5th 791, 804 [The interpretation of a statute presents a question of law that this court reviews de novo].
Case: 000097
Our review has disclosed the trial court’s failure to award updated custody credits at the resentencing hearing. We will remand the matter solely for this purpose and otherwise affirm.
First Holding: The trial court failed to award updated custody credits at the resentencing hearing. Where there is a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. [See] PC 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 23.
Case: 000098
The defendant claims the trial court erred in sentencing him to five years in prison, and alternatively asserts the court was unaware of its discretion to strike the enhancement in the earlier case. The People concede the trial court did not appreciate its discretion but argue it did not err because the original sentencing court would not have struck the enhancement. We vacate defendant’s sentence and remand for resentencing but otherwise affirm the judgment.
First Holding: As we will explain, the trial court erred because it failed to understand its discretion to correct what we conclude was an unauthorized sentence. We will remand to allow the court to exercise its informed discretion to correct the unauthorized sentence and resentence defendant. A sentence is unauthorized when it could not lawfully be imposed under any circumstances. [See] People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1517.
Second Holding: The original sentencing court was required to either suspend imposition of a sentence or impose and suspend execution of a sentence before placing defendant on probation. Instead, the original sentencing court did not pronounce a sentence for the underlying driving under the influence offense but imposed and suspended execution of the great bodily injury enhancement. As a result, we conclude the original sentencing court’s oral pronouncement of judgment was unauthorized. To determine the sentence imposed by the first sentencing court, we look to the oral pronouncement of the sentence. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. Ordinarily, this principle of law would let us apply the trial court’s oral pronouncement of judgment as the definitive sentence, but here the sentence orally pronounced was unauthorized. The record cannot be harmonized to correct the unauthorized sentence. [See] PC 1203.1; People v. Hill (1986) 185 Cal.App.3d 831, 834 [an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components–the invalidity of one component infects the entire scheme]; People v. Price (2004) 120 Cal.App.4th 224, 243; People v. Zackery (2007) 147 Cal.App.4th 380, 385.
Third Holding: Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such situations, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion had it been aware of the scope of its discretion. [See] People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.
Case: 000099
The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.
First Holding: Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. [See] PC 1172.6.
Second Holding: Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives. [See] PC 1172.6.
Third Holding: We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing. [See] People v. Harden (2022) 81 Cal.App.5th 45, 52.
Fourth Holding: Since the decision to appoint counsel is not discretionary, we review that without deference as well. [See] Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988.
Case: 000100
Based on the discussion below, we find the trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s right to a jury trial on the alleged aggravating factors. We vacate the sentence and remand the matter for litigation of the alleged aggravating circumstances and full resentencing. During the bench trial on the prior convictions, the trial court specifically noted that it was not convinced beyond a reasonable doubt that the prior convictions were true. It was therefore error for the court to rely on them.
Holding: The trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s constitutional right to a jury trial on the alleged aggravating factors. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Lynch (2024) 16 Cal.5th 730, 768; Chapman v. California (1967) 386 U.S. 18.