Tag Archives: Discretion

Discretion, Duty of the court, Sentencing

Case 000446

Posted on by Gary McCurdy

Error and/or relief

Though affirming the lower court’s decision to not exercise its discretion to dismiss the prior serious felony enhancement, there was an error in the calculation of credit for time served.

First Holding:

A trial court’s refusal to dismiss a prior serious felony enhancement is reviewed on appeal under the deferential abuse of discretion standard.

Authority:

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

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Hodge (2024) 107 Cal.App.5th 985

Second Holding:

When a trial court declines to strike a five-year sentencing enhancement for a serious prior felony conviction, no error occurs if the trial court evaluates all relevant circumstances to ensure that punishment fits the offense and the offender.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 587

Third Holding:

A trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss or where the court considered impermissible factors in declining to dismiss,’ or where the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case.

But it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. A merely debatable ruling cannot be deemed an abuse of discretion. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 637

People v. Johnson (2022) 12 Cal.5th 544, 605

People v. Myers (1999) 69 Cal.App.4th 305, 310

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1029

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [Section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety]

Fifth Holding:

The trial court awarded the defendant the number of days of actual custody credit that reflected his credits from the date of his incarceration to the date of his original sentencing hearing, and ordered the California Department of Corrections and Rehabilitation (CDCR) to calculate credits for the time he has been incarcerated at CDCR. On resentencing, a trial court must calculate a defendant’s custody credits through the date of the resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Discretion, Sentencing

Case 000445

Posted on by Gary McCurdy

Error and/or relief

Convicted of both murder and conspiracy to commit that murder, the court should have stayed the sentence for the conspiracy under section 654.

First Holding:

Section 654(a) provides in pertinent part that 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. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 295

Second Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. The purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Deloza (1998) 18 Cal.4th 585, 591–592

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Third Holding:

To determine the applicability of section 654, we first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Fourth Holding:

If the convictions involve more than one act, the court reaches step two of the section 654 analysis: whether the course of conduct involved multiple intents and objectives. At step two, whether crimes arise from an indivisible course of conduct turns on the perpetrator’s intent and objective. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

Fifth Holding:

Because the conspiracy count in this case did not include a broader objective than the commission of the first degree murder, section 654 applied.

Authority:

People v. Dalton (2019) 7 Cal.5th 166, 247

People v. Lewis (2008) 43 Cal.4th 415, 439 [overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919]

People v. Briones (2008) 167 Cal.App.4th 524, 529

People v. Hernandez (2003) 30 Cal.4th 835, 866 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616

Sixth Holding:

We acknowledge the trial court’s discretion under section 654 to choose which punishment to stay. Nevertheless, we conclude that a remand is unnecessary because the trial court’s decision on which punishment to stay would make no difference to the total sentence for the defendant. In this case, the sentence for the first degree murder count and the conspiracy to commit murder count are the same, 25 years to life. Under these circumstances, we will correct the trial court’s error by modifying the defendant’s sentence to stay the punishment on count 2, the conspiracy to commit murder conviction and the attached enhancements, to comply with section 654.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

People v. Cortez (1998) 18 Cal.4th 1223, 1237
People v. Hernandez (2003) 30 Cal.4th 835, 870 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Calles (2012) 209 Cal.App.4th 1200, 1221

People v. Bey (2025) 108 Cal.App.5th 144, 167

Discretion, Sentencing, Standard of review

Case: 000443

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering restitution in the amount of the full retail price of sunglasses that were returned to the victim, a retail store, by the police soon after the theft.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Restitution shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. A victim may also seek lost profits.

Authority:

PEN 1202.4(f)

Second Holding:

A prima facie case for restitution can be made based on a victim’s testimony or other claim or statement of the amount of economic loss. Once a prima facie showing of loss has been made, the burden shifts to defendant to demonstrate that the amount of the loss is other than that claimed by the victim.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

Third Holding:

We review restitution orders for abuse of discretion. Where the specific issue is whether the court’s factual findings support restitution, we review those findings for substantial evidence.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

People v. Hume (2011) 196 Cal.App.4th 990, 995

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 373

Fourth Holding:

Ordering a defendant to pay retail value is justified when a retailer shows it lost the opportunity to sell the stolen goods to customers at that price — in other words, that it lost profits because of the thefts.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1178 [retail value of recovered stolen property was not an appropriate measure of restitution when the prosecutor presented no evidence that the victim retailer lost any profits as a result of the theft]

Fifth Holding:

Had the victim been a person who purchased the sunglasses at a store for the retail price, the retail price may have been the accurate measure of damages.

But the victim retailer did not seek lost profits on its restitution request form or introduce evidence at the hearing supporting such a claim. The trial court, in fact, ordered defense counsel to refrain from examining the store manager about the store’s sales volume after the prosecutor objected on relevancy grounds. The restitution award was therefore limited to the replacement cost of like property.

Using retail value as the sole basis to calculate restitution, based on this record, resulted in a windfall to the victim retailer.

Authority:

PEN 1202.4(f)(3)(A)

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall]

People v. Valle (2023) 93 Cal.App.5th 1329, 1333 [awarding purchase price of stolen cell phone that was returned to victim was error when defendant elicited testimony the victim hoped to use or sell the phone]

Discretion, Sentencing

Case: 000441

Posted on by Gary McCurdy

Error and/or relief

The gang conviction in count 6 is based on the same felonious conduct that comprises the murder conviction in count 1. Accordingly, the trial court was required to stay execution of one of these sentences. We vacate the defendant’s sentence and remand for resentencing. The trial court shall exercise its discretion under section 654 to determine which of the sentences for counts 1 and 6 must be stayed.

First Holding:

Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed.

Authority:

PEN 654(a)

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

Second Holding:

Under amended section 654 (AB 518 (2021–2022 Reg. Sess.)) (Stats. 2021, ch. 441), the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer one. Here, although the lower court’s decision to run the sentence in count 6 concurrently strongly suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine which sentence must be stayed.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Discretion, Sentencing, Standard of review

Case: 000434

Posted on by Gary McCurdy

Error and/or relief

At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.

Section 1172.75(d)(3) provides that 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. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.

We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]

Third Holding:

Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.

Authority:

PEN 1050