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Duty of the court, Sentencing

Case: 000431

Posted on by Gary McCurdy

Error and/or relief

The superior court abused its sentencing discretion by imposing a midterm sentence in the absence of any indication that the superior court was aware of the requirements of section 1170(b)(6) regarding a lower-term presumption where the defendant makes a showing of childhood trauma sufficient to trigger the presumption. We reverse the judgment and remand the matter for a new sentencing hearing

First Holding:

In relevant part, section 1170(b)(6), provides that, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if the following was a contributing factor in the commission of the offense: (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. Here, as the Attorney General concedes, the defendant made a sufficient showing in this respect, thus triggering the lower term presumption. The contested issue, then, is whether the superior court actually found that the aggravating circumstances outweighed the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170(b)(6)

Second Holding:

On the present record, we cannot conclude the court made that finding. First, the court did not expressly conduct the inquiry that would allow such a finding to be made: The court neither referred to section 1170(b)(6), nor invoked its language. Second, the record does not affirmatively show compliance with the statutory sentencing mandate, as is required when the court has not expressly complied. The court’s averment that “looking at the mitigating factors is where you start nowadays” is too vague to be an affirmative indication that the court was aware that the lower term was presumptive.

Similarly, the court’s decision to select the midterm after referring to aggravating factors is different from a finding that the aggravating factors outweighed the mitigating factors, as is required to defeat the presumption in favor the lower-term sentence. Indeed, on the sentencing form signed by the sentencing judge, no marking has been made on the field that reads, “[25] Aggravation factors outweigh those in mitigation,” even though several other fields on the form are marked. In short, this record gives us no reason to believe the court complied with section 1170(b)(6).

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991 [the record must affirmatively show compliance with a statutory sentencing mandate whenever the mandate has been triggered by an initial showing of the applicability of the statute]

AppellateAdvisor Updates

Case: 000430

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the full term for an enhancement attached to the offense that was designated as a subordinate term.

First Holding:

A sentencing court has a duty to impose the punishment prescribed by law, and has no discretion to deviate from the statutorily specified penalty. When the trial court has imposed a sentence that could not lawfully be imposed under any circumstance in the particular case, it has imposed an unauthorized sentence that must be corrected even if raised for the first time on appeal.

Authority:

PEN 12

People v. Martinez (2015) 240 Cal.App.4th 1006, 1012

People v. Anderson (2020) 9 Cal.5th 946, 962

Second Holding:

Defendant was convicted of two or more felonies. Section 1170.1(a) required the trial court to select a principal term and designate the terms for his other convictions as subordinate terms. The conviction carrying the greatest term of imprisonment is designated the principal term. For the conviction designated as the principal term, the court must impose the full term. Subordinate terms and their applicable enhancements receive one-third of the middle term. The count to which the enhancement was designated as a subordinate term, so the court should have imposed only one-third of its middle term rather than its full term.

Authority:

PEN 1170.1(a)

People v. Nguyen (1999) 21 Cal.4th 197, 202

Third Holding:

Counts that are subject to full-term sentencing under PC 667.6 are not to be including in any determination under section 1170.1. Thus, it was not error for the court to designate count 7 (which was not subject to section 667.6) as the principal term (to be served as a full term) under section 1170.1 even though the court had imposed sentence on two other counts as full term under section 667.6.

Authority:

People v. Pelayo (1999) 69 Cal.App.4th 115

[GARY NOTE: though the purpose for which Pelayo was cited continues to be true, Pelayo’s recitation of section 1170.1’s treatment of enhancements on subordinate terms is outdated, as section 1170.1 has since been amended to include enhancements on subordinate terms whether or not the subordinate term was for a violent felony.]
Discretion, Sentencing

Case: 000429

Posted on by Gary McCurdy

Error and/or relief

An insurer is not a “direct victim” eligible for restitution under section 1202.4

First Holding:

We review a restitution order for abuse of discretion.

Authority:

People v. Percelle (2005) 126 Cal.App.4th 164, 179

Second Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. Victim includes a corporation or any other legal or commercial entity when that entity is a direct victim of a crime. Thus, only the direct victim of a crime is entitled to restitution from the perpetrator of the offense.

Authority:

PEN 1202.4(f)

People v. Duong (2010) 180 Cal.App.4th 1533, 1537

Third Holding:

Direct victims include only the real and immediate objects of the defendant’s offenses Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders do not reasonably fit within this definition. As a result, restitution may not be awarded to insurers that partially reimbursed the direct victims for their losses, and trial courts may not divide the full amount of restitution between the victims and their insurers.

Authority:

People v. Birkett (1999) 21 Cal.4th 226, 233

Fourth Holding:

Accordingly, the trial court abused its discretion when it awarded restitution to the insurer. Instead, the court should have awarded the full restitution amount, including any amount awarded to the insurer, to the water district, which was the direct victim of the defendant’s crime, notwithstanding any reimbursement it already received from the insurer.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1537[a restitution order resting upon a demonstrable error of law constitutes an abuse of the court’s discretion]

People v. Hove (1999) 76 Cal.App.4th 1266, 1272 [insurance payments to the victim do not allow the defendant to escape responsibility for the losses he caused]

Fifth Holding:

Because the defendant does not contest the amount of restitution or the water district’s entitlement to that amount on appeal, we vacate the insurer restitution order and remand the matter so the court can order full restitution to the correct victim under section 1202.4.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1540 [remanding so the trial court can order restitution to the victim for the amount that the hospital will accept as full payment for the medical services the victim received at the hospital]

Juveniles, Sentencing

Case: 000428

Posted on by Gary McCurdy

Error and/or relief

The juvenile court’s review of the probation report and relation motions before determining jurisdiction was prejudicial error and merits reversal.

First Holding:

The history of section 701 indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. The primary purpose of the jurisdictional hearing “is to determine whether sufficient evidence exists to declare the minor a ward of the juvenile court. If the court finds that the minor is a person described in section 602, the court must determine whether the minor’s offense would be a misdemeanor or a felony if committed by an adult. The court then proceeds to hold a disposition hearing.

Authority:

WIC 701

In re Gladys R. (1970) 1 Cal.3d 855, 859

In re P.A. (2012) 211 Cal.App.4th 23, 31–32

Second Holding:

At the jurisdictional hearing, the admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision. Proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by [Welfare & Institutions Code] [s]ection 602. Rule 5.780(c) further provides that the juvenile court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing.

Authority:

WIC 701

Rules of Court, rule 5.780(c)

Third Holding:

The juvenile court’s erroneous consideration of a probation report before determining jurisdiction is reviewed for harmless error under Watson. Under that standard, we determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Fourth Holding:

An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. In any event, to the extent the court did not understand the issue based on its colloquy with counsel, we exercise our discretion to reach the merits.

Authority:

People v. Scott (1978) 21 Cal.3d 284, 290

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]

Fifth Holding:

Invited error bars a claim on appeal when a defendant, for tactical reasons, makes a request acceded to by the trial court and claims on appeal that the court erred in granting the request.

Authority:

People v. Russell (2010) 50 Cal.4th 1228, 1250

Sixth Holding:

If the jurisdictional facts presented at the hearing are far from conclusive, the juvenile court’s review of the probation report prior to determining jurisdiction constitutes prejudicial error. Thus, if the determination of jurisdiction is made by closely balanced evidence, reversal is proper.

Authority:

In re Gladys R. (1970) 1 Cal.3d 855, 862

In re James B. (2003) 109 Cal.App.4th 862, 875

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case: 000427

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for limited resentencing proceedings concerning the imposition of mandatory ancillary costs under Penal Code section 1465.8 and Government Code section 70373, both of which were omitted from the trial court’s original oral sentencing pronouncements.

First Holding:

The sentencing hearing transcript shows the trial court only imposed restitution and parole revocation fines, both in the amount of $500. The court purported to waive all fees and other fines without providing an explanation. Yet, the minute order and the indeterminate abstract of judgment indicate an imposed $200 court security fee pursuant to Penal Code section 1465.8, as well as a $150 criminal conviction assessment pursuant to Government Code section 70373.

The court security fee and the criminal conviction assessment are properly characterized as ancillary costs. That is, they are funding mechanisms created by the Legislature to raise funds for court operations and facilities; they are not punitive in nature. Imposition of these ancillary costs is mandatory for every criminal conviction except parking offenses. However, due to a robust fee waiver system in civil cases for the same types of ancillary costs, the unavailability of a fee waiver in criminal cases violates equal protection guarantees. Upon request by a criminal defendant, a trial court must consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). This includes allowing the parties to present and contest any relevant evidence or argument on the question.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 14-15, 26-27, 30

Second Holding:

[Gary Note: The court sidestepped the issue because it remanded for a Kopp hearing, but oral pronouncements prevail over written orders. The court has the authority to order corrections where the abstract of judgment or minute order does not reflect exactly what the court ordered. Had the court decided to order the correction, there are many cases it could have chosen from as authority. I have set forth a few below. Again, the discrepancy was moot in this case.]

Authority:

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