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Case Summaries

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Juveniles, Probation Parole PRCS

Case 000717

Posted on by Gary McCurdy

Error and/or relief

The court imposed a condition requiring the minor to participate in counseling and/or an education program as directed by his probation officer. This condition is too indefinite and we reverse and remand for the court to modify or strike it.

First Holding:

Although the minor did not object to this condition, we may still consider his challenge because it presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 887

Second Holding:

A juvenile court has broad discretion to fashion conditions of probation. And the court may empower the probation department with authority to supervise probation conditions. But, while a court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation, the court’s order cannot be entirely open-ended.

By leaving key determinations to be decided ad hoc, a vague probation condition may also result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re P.O. (2016) 246 Cal.App.4th 288, 293

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Third Holding:

The court did not specify any particular kind of counseling or education program. Indeed, by putting “and/or” between education and counseling, the court did not make clear whether the minor must participate in education, counseling, or both. Because the condition in this case contains no standard by which the probation department is to be guided, the condition is too broad and must either be stricken or rewritten to provide the necessary specificity.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359

Fourth Holding:

We acknowledge the line between an appropriate delegation of details and an improper delegation of judicial authority may not always be clear. But the trial court must at least select a specific category of educational or therapeutic programming.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902–903 [striking condition requiring defendant to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer because the court must choose between residential and outpatient programming]

Cf. People v. Penoli (1996) 46 Cal.App.4th 298, 301, 302, 308 [approving condition requiring defendant to enter a residential drug treatment program as approved by the Probation Officer because any attempt to specify a particular program at or prior to sentencing would pose serious practical difficulties]

Fines and fees, Sentencing

Case 000716

Posted on by Gary McCurdy

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply.

Authority:

PEN 1202.45

People v. Alvarez (2025) 18 Cal.5th 387, 484–486 [striking parole revocation fine where defendant was sentenced to death and indeterminate term]

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [parole revocation fine unwarranted where defendant was sentenced to LWOP and indeterminate term]

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that 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. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

AppellateAdvisor Updates

Case 000714

Posted on by Gary McCurdy

Error and/or relief

At a Penal Code section 1172.75 resentencing hearing, the appellant moved to dismiss one of his two prior strike convictions under Romero. In denying his Romero motion, the trial court erroneously found that the defendant was a “fourth striker.” We hold that it is reasonably probable that the trial court would have granted the defendant’s Romero motion had it not made this error. We therefore reverse the judgment and remand the matter to the trial court to reconsider the defendant’s Romero motion.

First Holding:

The Three Strikes law consists of two, nearly identical statutory schemes designed to increase the prison terms of repeat felons. In Romero, the Supreme Court held that the trial court may, in furtherance of justice, strike prior felony allegations in cases arising under the Three Strikes law pursuant to section 1385(a). At the section 1172.75 resentencing hearing in this case, the trial court was required to apply Romero and subsequent revisions to the Three Strikes law regarding enhancements.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 503, 504

Second Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, SB 136 amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.

Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB 136 retroactive by adding what is now section 1172.75 to the Penal Code.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

People v. Burgess (2022) 86 Cal.App.5th 375, 380

Third Holding:

Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 345

Fourth Holding:

A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strike law’s sentencing scheme. The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike convictions; and (3) the defendant’s background, character, and prospects. If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant as though he had not previously been convicted of one or more serious and/or violent felonies.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161

Fifth Holding:

We review a trial court’s denial of a Romero motion for abuse of discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373

Sixth Holding:

The trial court denied the defendant’s Romero motion in part based on an erroneous belief that he was a fourth striker when he was actually a third striker. The trial court’s characterization of the defendant’s prior criminal record in denying Romero relief was erroneous and, accordingly, we conclude the trial court abused its discretion in denying the defendant Romero relief.

Regarding forfeiture, it is true that the defendant’s trial counsel did not object to the trial court’s mischaracterization of the defendant’s prior criminal record. We have discretion, however, to reach the merits of an argument that has not been preserved for review.

We exercise that discretion here because it is in the interests of justice to address the defendant’s meritorious contention. Had the court granted his Romero motion, this would have changed his sentence from an indeterminate term to a determinate one. By reaching the merits, we obviate the need to address the parties’ contentions regarding whether trial counsel was prejudicially ineffective by not objecting.

Authority:

People v. Williams (1998) 17 Cal.4th 148,v 161, fn. 6

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [To forestall defendant’s ineffective assistance of counsel claim, we decline to find forfeiture under the circumstances of this case]

Seventh Holding:

Turning to whether the error was prejudicial, we conclude it was. When a trial court has given both proper and improper reasons for a sentencing choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

A reasonable judge could have concluded the defendant’s purported fourth strike weighed strongly against granting Romero relief. Given comments by the judge in the record that favored the defendant, we conclude it is reasonably probable the court would have granted the motion had it known the defendant was a third striker and not a fourth striker. We remand for resentence.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

Abstracts and Minutes

Case 000713

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains an error that must be corrected.

Holding:

The abstract of judgment contains a clerical error. In section 2 concerning enhancements, the abstract of judgment shows a sentence of 10 years for the firearm enhancement on the robbery count. That portion of the sentence should be in parentheses—the designation commonly used for concurrent terms—because the trial court imposed the sentence on count 2 to be served concurrently to the sentence on count 1. Accordingly, we direct the trial court to correct the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct clerical errors in an abstract of judgment]