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Sentencing, Sixth Amendment

Case 000476

Posted on by Gary McCurdy

Error and/or relief

The imposition of the upper term of imprisonment violated the defendant’s Sixth Amendment right to a jury trial and was unauthorized under section 1170, subdivision (b) as he did not expressly waive the right as to the aggravating circumstances relied on by the sentencing court to justify imposing the upper term nor stipulate to their truth.

First Holding:

The court may impose a sentence exceeding the middle term only if there are circumstances in aggravation of the crime that justify the upper term. The facts underlying those aggravating circumstances must have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Second Holding:

The Sixth Amendment entitles a defendant to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 755–767

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.]

Third Holding:

An express waiver of a federally-derived jury trial right is required even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial. That is, the right to a jury trial on aggravating circumstances, which is guaranteed by the federal constitution, may not be forfeited without an express waiver by the defendant.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

Here, appellant did not expressly waive his right to a jury trial on the aggravating circumstances and therefore has not surrendered his claim. No aggravating circumstances were pled in the complaint; as such, appellant’s plea, and his corresponding waiver of his constitutional rights, did not encompass any aggravating circumstances. A defendant does not waive his right to a jury trial on aggravating sentencing factors by pleading no contest to substantive offenses. Even if forfeiture did apply, we would nevertheless exercise our discretion to reach the issue. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right.

Authority:

People v. French (2008) 43 Cal.4th 36, 50

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

Fifth Holding:

We cannot determine from this record beyond a reasonable doubt that a jury would have found every aggravating factor relied on by the trial court properly proven. Several of the factors relied on by the sentencing court were fact-specific, which a reasonable jury could disagree on. Moreover, the sentencing court relied on factual recitations in the police reports, which counsel did not stipulate to admitting into evidence for the purpose of establishing aggravating factors, and which contained hearsay. Additionally, we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775 [To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

Sixth Holding:

One court has held that the rule 4.421(c) residual clause [which was relied on in part by the trial court here, and lists as a potential factor in aggravation “Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed” exceeds the legislative delegation in section 1170.3 and thus violates the separation of powers clause of the California Constitution. It reasoned that because the 4.421(c) residual clause specifies no criteria for its use in jury factfinding, it supplies prosecutors unrestricted authority to make fundamental policy decisions on an ad hoc basis by letting prosecutors draft aggravating factors to submit to the jury not based on any statute or rule in order to expose the defendant to increased penalty. The court held that rule 4.421(c) is no longer appropriate under the current determinate sentencing law.

Authority:

Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081, 1099

Sentencing

Case 000475

Posted on by Gary McCurdy

Error and/or relief

We remand to the trial court with directions to clarify its section 654 findings for count 3 (false imprisonment). If the trial court clarifies on remand that section 654 applies, we direct it to modify the judgment to stay the sentence for count 3 and amend the abstract of judgment accordingly. We also direct the court to correct the determination of credit for time served.

First Holding:

Section 654’s applicability is reviewable on appeal even if, as here, the issue was not raised with the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. In the absence of any reference to PC 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective subject to substantial evidence review.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Tarris (2009) 180 Cal.App.4th 612, 626

Third Holding:

The court made comments suggesting a section 654 stay applied to the false imprisonment term at the original sentencing but was silent on the matter at resentencing. The trial court originally sentenced the defendant to a total prison term of more than 20 years. At the sentencing hearing, the court said it would impose and stay the middle-term sentence for count 3 (false imprisonment) primarily based on the fact that all of these facts are essentially running together, that there was some overlap with the other counts, as it viewed the false imprisonment as being somewhat encapsulated in the rape, witness intimidation, and domestic violence.

A few months later, the court recalled the sentence, believing the defendant had been given too harsh a sentence, and resentenced the defendant to nearly five years less. At that resentencing hearing, there was no mention of the applicability of section 654. In light of the uncertainty regarding what the trial court intended regarding a finding under section 654, it appears appropriate under these circumstances to remand the matter to permit the trial court to clarify.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 839

Fourth Holding:

The defendant is entitled to one day additional credit, because the correct calculation must include the date of arrest. Further, it is the trial court’s responsibility to calculate all credit for time served through the date of the resentencing, and the duty cannot be delegated to the custodial facility personnel.

Authority:

eople v. Kennedy (2012) 209 Cal.App.4th 385, 394

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Immigration, Standard of review

Case: 000474

Posted on by Gary McCurdy

Error and/or relief

We reverse and remand for the trial court to enter an order granting the defendant’s application under section 1473.7 because he did not understand the immigration consequences of his pleas.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences. In making this determination, we consider the totality of the circumstances. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

PEN 1437.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Second Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910 [focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion]

Fourth Holding:

There is a critical difference between (1) being notified the plea may have immigration consequences and (2) being told the plea will make one immediately deportable. When counsel provides only the first advisement in a situation calling for the second, the advisement is insufficient.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient; advisement that plea might have adverse immigration effects insufficient where deportation would be mandatory]

Fifth Holding:

At the time of the plea in 1996, the defendant’s counsel did not have a duty to discuss mandatory immigration consequences as they would now. That duty arose only with the decision in Padilla. When counsel had no professional obligation, we cannot infer that counsel in 1996 told the defendant of the mandatory immigration consequences. The lack of any proper advisement in the record corroborates the defendant’s claim.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905-906 [where immigration consequences clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073-1074 [advisement given in 1997 insufficient to satisfy section 1473.7]

Sixth Holding:

The defendant’s ties to the United States are sufficient evidence that the defendant would have focused on mandatory immigration consequences.

Authority:

People v. Alatorre (2021) 70 Cal.App.5th 747, 771 [deep ties to the United States constitute contemporaneous evidence that avoiding deportation would have been a primary concern]

Seventh Holding:

Where a noncitizen is no longer in custody and triggering events in the statute have not occurred, the motion is timely.

Authority:

People v. Perez (2021) 67 Cal.App.5th 1008, 1016

Abstracts and Minutes

Case: 000473

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it shows an incorrect code section for the defendant’s conviction.

Holding:

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. The appellate court may direct the trial court to correct clerical errors in an abstract of judgment.]

Authority:

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

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a 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 applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Lynch (2024) 16 Cal.5th 730, 776

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Walker (2024) 16 Cal.5th 1024, 1029

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

People v. Carmony (2004) 33 Cal.4th 367, 378

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]