AppellateAdvisor Law Library Background

Case: 000320

Error and/or relief

This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.

First Holding:

The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Second Holding:

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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

People v. Jones (2012) 54 Cal.4th 350, 353

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

People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]

Third Holding:

Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand 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. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067

Case: 000319

Error and/or relief

Summary denial of of the defendant’s 1172.6 petition without an evidentiary hearing was error where the jury had been given instructions that permitted it to find defendant guilty of murder under the felony murder rule or under the natural and probable consequences doctrine, and allowed it to find him guilty of attempted murder under the natural and probable consequences doctrine.

First Holding:

In 2018, the Legislature passed SB 1437 that amended sections 188 and 189 to significantly limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder as it applies to aiding and abetting. The bill also added section 1172.6 to provide a procedural mechanism for defendants who could no longer be convicted of murder because of the amendments to petition for retroactive relief. The Legislature later amended section 1172.6 effective January 1, 2022, to provide resentencing relief to defendants convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

SB 1437

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Rodriguez (2024) 103 Cal.App.5th 451, 457

Second Holding:

Section 189 as amended effective January 1, 2019, provides that a participant in the perpetration of a robbery or kidnapping (or attempted perpetration of those crimes) in which a death occurs is liable for first degree murder only if it is proven that the participant was the either (i) the actual killer; (ii) was not the actual killer but with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of the first degree murder; or, (iii) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

Third Holding:

Upon receipt of a petition that sets forth the required allegations, the trial court must conduct a prima facie analysis and hearing to determine the defendant’s eligibility for relief. Although the court should not reject the petition’s factual allegations without first conducting an evidentiary hearing, it may make a credibility determination adverse to the defendant if the court’s own documents refute those allegations.

Authority:

PEN 1172.6(b)(3) and (c)

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lewis (2021) 11 Cal.5th 952, 960

Fourth Holding:

We review de novo the trial court’s denial of a section 1172.6 petition at the prima facie stage.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 545

Fifth Holding:

It appears the trial court found that giving instructions that allowed the jury to find defendant guilty of murder based on theories of liability that had been abrogated by SB 1437 was harmless because the jury also received instructions on the still valid theories of being a major participant who aided and abetted with an intent to kill or acted with reckless indifference to human life. The difficulty here, however, is defendant was convicted in 2012, well before Banks clarified the law concerning major participant findings by identifying a series of considerations to assist in the inquiry whether a defendant is a major participant. Clark reiterated the Banks elements and substantially clarified the considerations relevant to determining whether a defendant acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 798-804

People v. Clark (2016) 63 Cal.4th 522, 611-623

Sixth Holding:

Unless a felony murder defendant was tried after Banks, a major participant finding will not defeat an otherwise valid prima facie case for section 1172.6 resentencing relief and, unless a defendant was tried after Clark, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case for such relief. Because defendant was convicted before Banks and Clark, the special circumstance findings that he was a major participant who acted with reckless indifference to human life do not preclude him from establishing a prima facie case for resentencing relief.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 721

Case: 000318

Error and/or relief

The defendant was sentenced to prison terms of 60-to-life plus 13 years under both the Three Strikes law (section 667) and the Habitual Offender provisions of section 667.7. The sentence included 13 years for enhancements. The judgment is modified to strike the great bodily injury enhancement imposed under section 12022.7(a) and the two prior serious felony enhancements imposed under section 667(a). On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

First Holding:

As relevant here, section 667.7 defines a habitual offender as any person convicted of a felony in which the person inflicted great bodily injury as provided in section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in section 667.5 for the crime of assault with a deadly weapon. A habitual offender with two prior separate prison terms shall be sentenced to life in prison and shall be ineligible for parole for a period of time calculated as the longest of three options: (1) 20 years; (2) the determinate term that would be imposed under section 1170, including any enhancements; or (3) any period prescribed by Section 190 or 3046. In other words, a habitual offender is not eligible for parole for a minimum of 20 years and for at least the duration of the sentence that would otherwise be imposed for the crime, including applicable enhancements.

[Gary note: The minimum term was set at 60 years, which was arrived at by tripling the minimum 20 years to life set by section 667.7 in keeping with section 667(e)(2)(A)(i), which sets the minimum term for Three Strikes sentences at “three times the term otherwise provided as punishment for each current felony conviction” if that produces the greatest Three Strikes sentence. The third option listed above–the reference to section 3046–is what makes that the applicable minimum term under section 667.7.]

Authority:

PEN 667.7

PEN 3046(a)(2) [(a) An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: … (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.]

Second Holding:

Section 667.7 is a self-contained sentencing scheme for habitual violent offenders. Because section 667.7 ensures that a habitual offender’s parole ineligibility lasts at least as long as the corresponding determinate sentence would, including enhancements, a sentencing court may not impose determinate sentence enhancements to further lengthen this period of parole ineligibility.

Authority:

People v. Jenkins (1995) 10 Cal.4th 234, 241

People v. Victor (1991) 227 Cal.App.3d 518, 524-526

People v. Tuggle (1991) 232 Cal.App.3d 147, 157-158, disapproved on another ground in Jenkins, at p. 252

Third Holding:

Permitting determinate enhancements to be imposed on top of a habitual offender life sentence would lead to absurd, anomalous, results. Section 667.7 expressly authorizes courts to use applicable enhancements to calculate the offender’s hypothetical determinate sentence. If the total exceeds 20 years, the determinate sentence defines the offender’s minimum parole eligibility. Thus, if the determinate sentence, including enhancements, for habitual offender A equaled 21 years, this would become his minimum term. Since the enhancements were used to calculate this actual minimum term, the court could not recycle the enhancements to add another five or ten years. If the determinate sentence, including enhancements, for habitual offender B, a less serious offender, did not exceed 20 years, then B would be hit twice. First, as the Legislature intended, his minimum term would be the statutory floor, 20 years. Second, the same enhancements, which were not enough to put his determinate term over 20 years, would then be added on top of the statutory floor. This is not what the Legislature intended.

Authority:

People v. Victor (1991) 227 Cal.App.3d 518, 524-525

People v. Jenkins (1995) 10 Cal.4th 234, 253 [noting that engrafting a term of enhancement onto the life term would lead to a result inconsistent with the statute’s methodology for setting the minimum period of required imprisonment, and nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term]

Fourth Holding:

An appellate court may correct a sentence that is not authorized by law. Accordingly, we will strike the unauthorized enhancements from the defendant’s sentence.

Authority:

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re Sandel (1966) 64 Cal.2d 412, 417-419

People v. Skeirik (1991) 229 Cal.App.3d 444, 468-469

Fifth Holding:

On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

[Gary note: The court cited no authority for its directive for the correction of the abstract of judgment. It isn’t entirely clear that the abstract was incorrect, but a fair reading led me to that conclusion. In any event, there is much authority supporting the court’s ability to order correction of abstracts of judgment and minute orders, and I have set out some below.]

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

Gary Musings on Pedro T. and Estrada (no case 000317)

Gary Musings,  on Pedro T., because there is no summary for Case 000317

I (Gary) decided not to include a summary on this what I have coded as Case 000317, because it contained very few new nuggets of legal principles, was very fact specific, and the facts were very convoluted. But of SOME possible interest, you may wish to review In re Pedro T. (1994) 8 Cal.4th 1041, which was mentioned in the case I’m not posting.

In essence, the question in Pedro T. was what happens when a defendant commits a new offense (in Pedro’s case, vehicle theft under section 10851) during a time when the penalty had been temporarily increased by the Legislature, with a sunset provision that would revert the available punishment to its previous status in the event the Legislature chose not to extend or remove the sunset provision.

In Pedro’s case, Vehicle Code section 10851 had been amended (before he committed his crime) to increase the range of punishment from a 16-month, 2-year, 3-year triad to a 2-year, 3-year, 4-year triad. He committed his crime under the new triad. During the course of the juvenile court’s efforts to rehabilitate the minor, he reached the limits of the court’s patience and was committed to the California Youth Authority for a term that was based on the increased tier.

While Pedro was serving his time, the sun set and the penalty range reverted to the former lower triad. Because his judgment was not final (he was still under the jurisdiction of the juvenile court, which could modify his disposition at any time), he sought to have his term lowered in keeping with the newly restored lower range, relying on In re Estrada (1965) 63 Cal.2d 740.

You may recall that Estrada firmly established the presumption that, in the absence of clear indication that the Legislature intended otherwise, ameliorative legislation is retroactive to any person whose judgment was not final when it took effect.

Pedro T. points out a very important aspect of Estrada: “The basis of our decision in Estrada was our quest for legislative intent.”

In other words, Estrada does NOT establish a rule that ameliorative provisions apply retroactively to defendants whose judgments are final. Instead, it holds that the courts will assume that the Legislature meant amelioration to apply to any that it could, UNLESS there is something that indicates that the Legislature did NOT intend it to apply retroactively.

So why didn’t the Supreme Court agree with Pedro that he should get the benefit of the reduced tier? “Ordinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest. In the case of a “sunset” provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.” (Pedro T., at p. 1045.)

The court noted the practical effect of a contrary rule. The purpose of increasing the triad was to make the consequences more severe so the average car thief would be discouraged from stealing cars. (I have thoughts running through my mind trying to pinpoint clients I had who refrained from misconduct because they carefully considered the penalty that potentially could be inflicted were they to be caught. I’m even trying to think whether I ever had a client who thought he (or she) might be caught. Nope, can’t think of any. But surly there must be SOME people who were willing to steal cars when the range was 16-2-3 but decided it wasn’t worth it when the penalty rose to 2-3-4. I suppose I simply never met the ones who didn’t do the crime because they didn’t want to do THAT much more time.)

But I digressed. Sorry ’bout that. The practical effect stated by Pedro T. is that a three-year legislative experiment in enhanced penalties might be seriously undermined if those penalties, instead of applying to all offenders during the three years, could be imposed only on those whose convictions became final before the sunset date. A rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term.

All in all, then, the Pedro T. majority (four of the seven justices; there was a dissenting opinion by Justice Arabian, in which Justices Kennard and Mosk concurred) concluded that it was the intent of the Legislature that all persons convicted of committing the crime during the three years of the increased triad were to be punished with that triad in mind, and the reversion to the lower triad was not to be considered retroactive to those whose judgments were not final when the sun set and the penalty lowered to its former self.

Many years ago (2013 and 2014), I wrote a few articles in the Forum (the publication produced by the California Attorneys For Criminal Justice) tracing the development of Estrada. Four cases were decided at that time, with variations on whether the factual scenario supported retroactivity.

In re Daup (1965) 63 Cal.2d 754 had the same result as Estrada. Daup escaped from prison at a time when the penalty for escape without force or violence was a term in prison of not less than one year (meaning the maximum was life). Prior to his trial, the statute was amended and the penalty for that crime was six months to five years in prison. Mr. Daup got the benefit of the reduction.

In re Griffin (1965) 63 Cal.2d 757, reiterated the holding in Estrada, but found that the statute in question was not ameliorative as to the defendant. The defendant had been sentenced to prison for 10 years to life on the current drug offense (Health & Saf. Code, sec. 11351) because he had a prior conviction of a type that triggered that sentence. Before judgment was final, however, the Legislature lowered the term to five years to life, but increased the minimum time that must be served before the inmate could be paroled. Thus, it ameliorated the punishment in some respects, and increased it in others. Since he had already been paroled, application of retroactivity would actually have sent him back to prison because he had been paroled earlier than under the new law. The Court concluded that the overall effect of the change in the law was harsher, and declined to apply it to the defendant. I’d like to say I’ve often wondered whether the result would have been different had he not yet been paroled. But I can’t honestly say I’ve often wondered about it. Maybe just once or twice?

In re Kirk (1965) 63 Cal.2d 761 again upheld the presumption in Estrada, and reached the same result as Estrada. He committed his theft when the felony trigger was $50 (less than would be petty theft, a misdemeanor), and he’d stolen $75. Before his judgment became final, though, the threshold rose to $100. The Supreme Court deemed the change applicable to him, reducing his offense from felony to misdemeanor status.

Note that all four cases arose by way of habeas corpus petitions. Back in the day, the judges did not set felony sentences when probation was not granted. If not granted probation, the person was sentence to imprisonment in the state prison for the term prescribed by law. Assault with a deadly weapon carried a penalty of six months to life. Assault with intent to kill (under section 217, which was repealed decades ago) carried 1 year to 14 years. In Daup’s case, the penalty changed from “a term in prison of not less than one year,” which meant potentially a life term. Then it was changed to six months to five years.

The Adult Authority was the body that decided when a prisoner could be released on parole. When the Determinate Sentence Law (DSL) was enacted in 1976-1977, the terms specified as the tiers were based on the terms that normally had been fixed by the Adult Authority for release on parole. Or at least, the practices were examined and were influential in decisions on the triads.

Did you know that for a short time, until around 1978, second degree murder was assigned a range of 5-6-7 years under the Determinate Sentence Law? If you have a cold case pop up, it’s very important to look at the exact statutes in effect at the time of the offense. Until the early 1980s, life terms could not be ordered to be served consecutively. Who knew, eh? For a few years back in the day, if a defendant on a wobbler was committed to the California Youth Authority, it immediately rendered the offense a misdemeanor. There was no requirement of successful completion. Also, there were limitations on the combined length of determinate terms where consecutive sentences were imposed. Every hear of “double the base term”? Or five-year limitations on prior prison term enhancements?

I have no official source for the following claim, and I have no idea whether it is even remotely true, but I heard that prosecutors and judges approached the Legislature in at least the 1980s and 1990s to do away with as many of the limitations as possible because the DSL was too complicated. Seriously? Anyone read the tax codes and successfully get them simplified? Again, I do NOT know whether that claim has any truth. It may be simply a result of myths and legends generated by and kept alive by defense attorneys lamenting the loss.

And in my admittedly biased opinion, the DSL was nowhere nearly as complex as some of the “hard on crime and criminals” statutes that were enacted in the decades since.

It has been refreshing (again, I’m biased) to see the reasonable move by the Legislature in recent years to restore justice over vengeance (yes, “meow”) to the extent it (and the initiative process as well, I guess) has.

Case: 000316

Error and/or relief

We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591