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Amelioration, Appellate Principles, Duty of the court, Sentencing

Case 000942

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in failing to follow this court’s instructions in the defendant’s prior appeal to dismiss the enhancement imposed under section 12022.53(e) unless the prosecution successfully retries under the gang allegations–necessary for that enhancement–under the provisions as amended by AB 333. The prosecution chose not to retry the allegations, so the enhancement must be vacated.

Holding:

(Gary note: this did not actually affect the sentence because punishment for the affected enhancement had previously been imposed but stayed by the trial court. Vacating the enhancement merely vacated a sentence for it that was already stayed.

(Also, the nature of the order did not require citation to case authority, as it was simply an observation that a previous order of the appellate court had not been carried out, so it ordered the court to carry out the appellate court’s previous order. But the court did cite cases relevant to its reason for the initial order that the gang-reliant enhancements must be retried if punishment for them is to be imposed.)

Authority:

People v. Lopez (2021) 73 Cal.App.5th 327, 347–348, disapproved of on other grounds in People v. Clark (2024) 15 Cal.5th 743, 764, fn. 8 [Because the sec. 12022.53(e) firearm enhancement depended on the jury finding a violation of sec. 186.22(b), vacating that finding in light of AB 333 required vacating sec. 12022.53(e) enhancement]

Appellate Principles, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000941

Posted on by Gary McCurdy

Error and/or relief

The minor challenges several conditions of probation. We modify two of them.

First Holding:

The juvenile court has wide discretion to select appropriate probation conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. The juvenile court’s discretion, while broad, 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.

In order to invalidate a condition of probation under this Lent test, all three factors must be found to be present. A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

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

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

Second Holding:

We review a juvenile court’s imposition of a probation condition for an abuse of discretion.

Authority:

In re Daniel R. (2006) 144 Cal.App.4th 1, 6

Third Holding:

Hearsay can at least sometimes be considered at dispositional hearings, and courts may base probation conditions upon information in probation reports.

Authority:

In re Vincent G. (2008) 162 Cal.App.4th 238, 243–244

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

Fourth Holding:

Probation conditions are to be given the meaning that would appear to a reasonable reader. We modify the probation condition that the minor not be around anyone known to him to be in possession of any dangerous or deadly weapons by inserting “known to him to be unlawfully in possession of the same.”

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 382

(Gary note: Olguin supports the first sentence of that summary of the holding. The court did not cite any specific authority in the paragraphs in which it modified the language of that condition itself. However, In re Sheena K. (2007) 40 Cal.4th 875, 889, authorizes an appellate court to modify conditions of probation to render them constitutional.)

Fifth Holding:

A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights.

People have a constitutional right to self-defense. The condition that “The minor shall not commit any act of violence against anyone” must be tailored to, “The minor shall not commit any act of violence against anyone, except for acts of lawful self-defense.”

Authority:

Cal. Const., art. I, sec. 1

In re Carlos C. (2018) 19 Cal.App.5th 997, 1002, 1004

People v. McDonnell (1917) 32 Cal.App. 694, 704

Amelioration, Appellate Principles, Sentencing

Case 000940

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for recall under section 1172.6, challenging his convictions for murder. The petition was denied, and the denial was affirmed on appeal. The opinion noted that the defendant had not challenged his convictions for attempted murder. The defendant then filed a section petition to challenge his convictions of attempted murder in light of legislation enacted to encompass attempted murder under section 1172.6. The trial court summarily denied that petition on the grounds that he had already filed a petition that had been denied.

That was error.

First Holding:

On January 1, 2019, SB. 1437 eliminated the natural and probable consequences doctrine as a basis for murder and limited the scope of the felony murder rule. SB 1437 also created the resentencing procedure at issue here. The defendant filed his first section 1172.6 petition seeking resentencing of his conviction for second degree murder pursuant to the changes to the law effectuated by SB 1437.

On January 1, 2022, while the defendant’s first petition was pending, SB 775 further amended the Penal Code to eliminate the natural and probable consequences doctrine as a theory of liability for attempted murder.

Authority:

SB 1437

SB 775

PEN 1172.6

Second Holding:

The defendant’s first petition sought resentencing of the murder conviction only. This court expressly did not consider the attempted murder convictions as they had not been presented for resentencing in the trial court.

The denial of the first petition did not prevent the defendant from subsequently seeking resentencing of the attempted murder convictions once that relief became available due to changes in the law. The second petition was not the same as the first.

We therefore reverse the trial court order denying the defendant’s second petition for resentencing. On remand, the trial court must appoint counsel for the defendant and conduct further proceedings under section 1172.6 as to his attempted murder convictions.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 949–951

Duty of the court, Fines and fees

Case 000939

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing for the trial court to state the statutory basis for the imposed fines and fees.

First Holding:

The matter must be remanded for the trial court to orally pronounce the applicable statutory citations for each imposed fine and fee in the case and for the corresponding probation minute order to be amended accordingly. The absence of statutory citations for the $165 “restitution fine” and the $40 “[c]ourt [s]ecurity [f]ee” and the absence of a statutory citation for the $35 “infraction fee” in the minute order must be corrected.

Authority:

People v. High (2004) 119 Cal.App.4th 1192

Second Holding:

Although a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed. A trial court’s failure to specify the amount and statutory basis for each fine, fee, and penalty assessment imposed is legal error. Such error may be reviewed on appeal even in the absence of an objection.

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

People v. Eddards (2008) 162 Cal.App.4th 712, 715

People v. Hartley (2016) 248 Cal.App.4th 620, 637

Third Holding:

A court may adequately pronounce judgment by imposing a specific fine and generally referring to the applicable penalty assessments. However, the responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment or the probation minute order. This includes providing a statutory basis of each fine or fee imposed.

Authority:

People v. Voit (2011) 200 Cal.App.4th 1353, 1373

People v. Sharret (2011) 191 Cal.App.4th 859, 864

People v. Eddards (2008) 162 Cal.App.4th 712, 715, 718

Fourth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fines and fees, Sentencing

Case 000938

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the booking fee imposed pursuant to former Government Code section 29550.2.

Holding:

The main jail booking fee (former Gov. Code, sec. 29550.2), imposed by the trial court at the early 2021 sentencing hearing and reimposed at the 2025 hearing, was repealed by the passage of AB 1869, effective July 1, 2021 AB 1869 enacted Government Code section 6111, which provides that on and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to section 29550.2 is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, the main jail booking fee reimposed at the 2025 sentencing hearing must be vacated.

Authority:

GOV 6111(a)

Former GOV 29550.2