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Case Summaries

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Amelioration, Jurisdiction, Sentencing

Case: 000270

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for resentencing under section 1172.75. While review was still pending in the Supreme Court following the defendant’s appeal of his conviction, the trial court assumed jurisdiction and struck the prior prison term enhancement as directed by the Court of Appeal’s opiniion. More than a year later, the Calfiornia Department of Corrections and Rehabiltation advised that the defendant was on its list of inmates entitled to have their now-invalid prior prison term enhancements stricken. The court recalled the sentence under section 1172.75, but ultimately after the trial court discovered that it had already dismissed the now-invalid enhancement for a prior prison term, it concluded that the defendant was not eligible for resentencing. However, the trial court had no jurisdiction to strike the enhancement while the appeal was pending review in the Supreme Court.

First Holding:

Subject to limited exceptions, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Scarbrough (2015) 240 Cal.App.4th 916, 923

Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10

People v. Cunningham (2001) 25 Cal.4th 926, 1044

In re Lukasik (1951) 108 Cal.App.2d 438, 443

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

Because the trial court was without subject matter jurisdiction to strike the sentencing enhancements when it did [while the matter was still on appeal], the court’s order is void and vulnerable to direct or collateral attack at any time. Because the order striking the prior conviction enhancement is void, the only judgment that applied to defendant’s case was the original judgment that included the section 667.5 enhancement. The court therefore erred when it declined to resentence defendant by striking the section 667.5 enhancement during a new resentencing hearing.

Authority:

PEN 1172.75(c), (d)(1), (d)(2)

People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660

People v. Vasilyan (2009) 174 Cal.App.4th 443, 450

People v. Green (2024) 104 Cal.App.5th 365, 373

Discretion, Juveniles, Probation Parole PRCS

Case: 000269

Posted on by Gary McCurdy

Error and/or relief

We conclude the electronics search condition as currently framed is invalid under Lent and In re Ricardo P. We therefore strike the condition and remand the matter to the juvenile court to consider the imposition of a modified electronics search condition in conformance with Ricardo P. and this opinion.

First Holding:

A juvenile court is authorized to impose any reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. Notably, the permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults, given that juveniles are deemed to be more in need of guidance and supervision than adults and that the state stands in the shoes of the parents in caring for the minor’s well being when it asserts jurisdiction over the minor.

Authority:

WIC 730(b)

In re Victor L. (2010) 182 Cal.App.4th 902, 909–910

Second Holding:

This broad discretion, however, is not unlimited. A probation condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. As the Supreme Court has explained, a condition of probation that requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.

Authority:

In re J.B. (2015) 242 Cal.App.4th 749, 754

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

The first question is whether the minor’s use of an electronic device bore a relationship to his assault of the victim with force likely to produce great bodily injury. In the context of electronics search probation conditions, some Courts of Appeal have found that use of an electronic device is related to an offense when the device was used to commit, plan, or facilitate that offense. In this case there was no indication that the minor used an electronic device to commit, plan, or facilitate his assault of the victim.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 719–720, 724 [electronic device was involved in the offense where defendant met his victim through social media]

People v. Castellanos (2020) 51 Cal.App.5th 267, 270, 271, 275–276 [electronic devices involved in transportation of controlled substances where defendant had three cell phones in his car at the time of arrest and cell phones are frequently used in drug sales]

Fourth Holding:

Other Courts of Appeal have found that electronic devices were not related to an offense when the connection between electronic device usage and an offense was more tangential. For example, in Alonzo M., the mere fact that electronic devices were stolen during the minor’s commission of automobile burglaries and purse snatch robberies did not compel the conclusion that electronic devices related to these offenses. Similarly, in Amber K., the minor’s use of social media before and after a school fight was found to be insufficient to satisfy the first prong of Lent.

Authority:

In re Alonzo M. (2019) 40 Cal.App.5th 156, 158-164 [observing the condition could not be upheld under either of first two Lent prongs]

In re Amber K. (2020) 45 Cal.App.5th 559, 564–566

Fifth Holding:

As indicated, there appears no dispute the second prong of the Lent test has been met. And for good reason: it is well-established that there is nothing inherently illegal about using electronic devices.

Authority:

In re Amber K. (2020) 45 Cal.App.5th 559, 566

Sixth Holding:

The third prong of Lent requires that we assess whether the electronics search condition requires or forbids conduct that is not reasonably related to future criminality. The third prong of Lent contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. An abstract or hypothetical relationship between the probation condition and preventing future criminality is insufficient. A condition can survive only when there is information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history and when the burden imposed by the condition is proportionate to the legitimate interests served by that condition.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1121-1122

In re Alonzo M. (2019) 40 Cal.App.5th 156, 166

Seventh Holding:

Following Ricardo P. and Alonzo M., we conclude the broad-ranging electronics search condition burdens the minor’s privacy in a manner substantially disproportionate to the probation department’s legitimate interest in monitoring” his compliance with his probation terms, including the order to stay away from the victim.

Authority:

In re Alonzo M. (2019) 40 Cal.App.5th 156, 168

Abstracts and Minutes, Fines and fees

Case: 000268

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not accurately state the sentence imposed. It reflects the imposition of a variety of fines and fees. The trial court struck all fines and fees pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157 [regarding inability to pay] and ordered that anything that could not be stricken be stayed. Although we will affirm the trial court’s orders, we will remand with directions to correct the abstract of judgment.

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

Gary Note:

[Gary note: Duenas was disapproved by the California Supreme Court to the extent it was inconsistent with the Supreme Court’s decision in Kopp. Kopp is a must-read on the issue of the obligation of trial courts AND of the defendant (or defense counsel) regarding whether to impose certain fines and fees and the nature of the challenges available to the defendant. I have included the citation to Kopp below for your convenience, but it was not mentioned in this decision. Because of the nature of the issues raised in the brief, it was not necessary for the Court of Appeal to revisit the action of the trial court regarding imposition and staying or striking of fines and fees. The only issue was the inaccuracy of the abstract of judgment.]

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Duty of the court, Sentencing

Case: 000267

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court failed to calculate her presentence custody credits correctly. We agree the defendant is entitled to three additional days of presentence custody credit. We direct the trial court to prepare an amended abstract of judgment to reflect the correct amount of credit and transmit it to the California Department of Corrections and Rehabilitation.

Holding:

[GARY NOTE: There was no authority indicated in the opinion for the correction of the credit for time served, likely because the error is so obvious. For sake of completeness, the following authorities would support the court’s ruling.]

Authority:

PEN 2900.5(d) [It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.]

People v. Smith (1989) 211 Cal.App.3d 523 [A sentencing court must award credits for all days in custody up to and including the day of sentencing.]

People v. Duff (2010) 50 Cal.4th 787, 793 [At the time of sentencing, credit for time served, including conduct credit, is calculated by the court. The total number of days to be credited is memorialized in the abstract of judgment and shall be credited upon the defendant’s term of imprisonment. The credit in effect, becomes part of the sentence.]

Amelioration, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the court shall 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

Second Holding:

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

People v. Dean (2024) 99 Cal.App.5th 391, 397