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Sentencing

Case 000787

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by sentencing the defendant on a count on which the jury acquitted him.

Holding:

The defendant contends, and the People concede, that the 180-day sentence imposed for count 11 must be vacated because the jury acquitted him of that offense. We agree. The sentence imposed on count 11 is therefore unauthorized as it could not lawfully be imposed under any circumstance in the particular case. We accordingly vacate the sentence on count 11.

Authority:

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

Discretion, Duty of the court, Standard of review

Case 000786

Posted on by Gary McCurdy

Error and/or relief

By shifting the burden of proof from the People to appellant, the trial court erred in denying the defendant’s petition to terminate his duty to register as a sex offender.

First Holding:

Before 2021, if an offender was required to register as a sex offender, they were required to register for life. Beginning on January 1, 2021, SB 384 (2017–2018 Reg. Sess.) restructured the sex offender registration requirement into three tiers: tier one, registrants must register for at least 10 years; tier two, for at least 20 years; and tier three, for their lifetimes.

Authority:

PEN 290(d)

People v. Franco (2024) 99 Cal.App.5th 184, 190

People v. Thai (2023) 90 Cal.App.5th 427, 432

Second Holding:

Appellant is a tier two registrant who is required to register for at least 20 years. Provided the registrant meets certain criteria, including registering for the required minimum period, a registrant can petition the superior court to terminate the registration requirement.

Authority:

PEN 290.5(a)-(c)

Third Holding:

Upon receiving notice of a petition to terminate registration, the district attorney may object and present evidence demonstrating that community safety would be significantly enhanced by continued registration.

The prosecutor has the burden of producing evidence to establish terminating the registration requirement would considerably raise the threat to society because the defendant is currently likely to reoffend. The trial court’s task is to assess whether the People have carried their burden of producing evidence establishing that requiring continued registration appreciably increases society’s safety.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fourth Holding:

In making this determination, the trial court may consider the following seven factors: [(1)] the nature and facts of the registerable offense; (2) the age and number of victims; (3) whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); (4) criminal and relevant noncriminal behavior before and after conviction for the registerable offense; (5) the time period during which the person has not reoffended; (6) successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and (7) the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.

The trial court may base its determination upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.

Authority:

PEN 290.5(a)(3)

Fifth Holding:

The standard of review applied by an appellate court reviewing a trial court’s order on a petition for termination is abuse of discretion. The showing required to establish an abuse of discretion is as follows: To establish an abuse of discretion, the defendant must demonstrate the trial court’s decision fell outside the bounds of reason, i.e., was arbitrary, capricious, or patently absurd.

The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Section 290.5 required the prosecutor to prove that appellant was currently likely to reoffend and that community safety would be significantly enhanced by continued registration. Here, the trial court denied the petition, at least in part, due to the absence of evidence that appellant no longer posed the threat he did when he committed the registrable offenses. Doing so placed the burden on appellant, rather than on the prosecutor, to produce evidence of the current threat, if any, posed by appellant. This was error. We remand for a new hearing.

Authority:

PEN 290.5(a)(2)-(3)

People v. Thai (2023) 90 Cal.App.5th 427, 432-433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Seventh Holding:

(Gary Note: The court proceeded to explain why the error was prejudicial, applying the Watson standard, based on facts specific to this defendant, and the details need not be recited in this summary.)

Authority:

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

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial. The court may, however, consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

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

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Amelioration, Elements of crime, Sentencing

Case 000784

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to recall his sentence under section 1172.6. The evidence was insufficient to prove he is guilty of murder and attempted murder beyond a reasonable doubt.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her criminal culpability. Specifically, it amended section 188 by adding a requirement that, except as stated in section 189(e), all principals to murder must act with express or implied malice to be convicted of that crime. SB 775 (2021-2022 Reg. Sess.) extended relief to defendants convicted of attempted murder, but only if their convictions were based on the natural and probable consequences doctrine.

Authority:

PEN 188(a)(3)

People v. Gentile (2020) 10 Cal.5th 830, 842-843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

SB 1437 also created a procedural mechanism for defendants with eligible murder convictions to seek retroactive relief under the amended law. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing.

At that hearing, the court sits as an independent fact finder and the prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under the amended law. The parties may offer new or additional evidence at the hearing.

Authority:

PEN 1172.6

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

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

People v. Garrison (2021) 73 Cal.App.5th 735, 743

Third Holding:

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends. The defendant must not only know the direct perpetrator’s intent to commit murder, but he or she must share that intent. And, aiding and abetting the commission of a crime requires some affirmative action. The word aids refers only to overt or affirmative forms of assistance.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 463

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Partee (2020) 8 Cal.5th 860, 868

Fourth Holding:

We review a trial court’s denial of a section 1172.6 petition for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a direct aider and abettor in the murder and attempted murders.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. Malice may be express or implied. The difference between express malice and implied malice is the former requires an intent to kill but the latter does not.

Authority:

PEN 187(a)

PEN 188(a)

People v. Soto (2018) 4 Cal.5th 968, 976

Sixth Holding:

Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 453

Seventh Holding:

We cannot presume that because members of the defendant’s group belonged to the same gang, they must have known each other’s intent. Indeed, the law does not recognize a rule of guilt by association. We insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends. Without knowledge of his cohort’s intent to kill, any of the defendant’s subsequent acts cannot constitute the actions necessary to establish aider and abettor liability.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165

Sentencing, Sixth Amendment, Standard of review

Case 000783

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred by sentencing defendant to the upper term on his robbery conviction.

First Holding:

On January 1, 2022, SB 567 (2021-2022 Reg. Sess.) went into effect, amending section 1170. Section 1170 authorizes a trial court to impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances 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.

However, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Second Holding:

In Erlinger, the United States Supreme Court held that, under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). An exception to this allows a trial court to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

In Wiley, the California Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, we interpret section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, the Wiley court held a defendant is entitled 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. Wiley (2025) 17 Cal.5th 1069, 1086

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Each of the four aggravating factors found true by the trial court required finding true more than the bare fact of a prior conviction and its elements. Accordingly, the court’s reliance on each of the other four aggravating factors (rule 4.421(b)(2)–(5)) was erroneous. Moreover, we cannot conclude that all of these errors were harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 743 [a sentence imposed under former section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified]

Fifth Holding:

Whether a defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)) is a comparative and qualitative determination which makes it 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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]