Tag Archives: Discretion

Amelioration, Gary Musings, Sentencing, Standard of review

Case 000723

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court was required to revisit whether the gang enhancement attached to the felony assault charge was still valid in light of changes to the gang criminal activity statutes under AB 333. When asked to strike the enhancement, the trial court stated that it did not have discretion to relitigate the facts underlying the gang enhancement. This was error.

First Holding:

Section 1172.75 rendered legally invalid any prior prison term enhancement imposed before January 1, 2020 (unless the enhancement was imposed for a prior sexually violent conviction), and it created a resentencing procedure for defendants who are currently serving sentences that include such an enhancement. Section 1172.75(c) requires a court to strike any now-invalid prior prison term enhancement and recall the defendant’s sentence.

Section 1172.75(d) provides instructions for resentencing. Among other things, the provision requires the court to resentence the defendant under current law, including any changes in law that reduce sentences.

Authority:

PEN 1172.75

Second Holding:

We review a trial court’s sentencing decisions for abuse of discretion. A court abuses its discretion when it acts arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its discretion such that it does not exercise its discretion at all. We independently review questions of statutory interpretation implicated by the trial court’s decisions.

Authority:

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Mathis (2025) 111 Cal.App.5th 359, 366

Third Holding:

Effective January 1, 2022, AB 333 made several changes to the law governing the gang enhancement.

First, AB 333 narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, it changed the requirement that a gang’s members individually or collectively engage in a pattern of criminal activity to now require that any such pattern be collectively engaged in by members of the gang.

Third, it narrowed the definition of a pattern of criminal gang activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date of the currently charged offense; (2) the pattern offenses were committed by two or more gang members, as opposed to just persons; (3) the pattern offenses commonly benefitted a criminal street gang; and (4) none of the pattern offenses is the same as the currently charged offense.

Finally, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Examples of a common benefit that are more than reputational, under the amended provision, include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

PEN 186.22

Fourth Holding:

AB 333’s amendments to section 186.22 apply retroactively to the defendant’s case because they are ameliorative changes and the defendant’s case became nonfinal when the court vacated and recalled his sentence under section 1172.75.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Padilla (2022) 13 Cal.5th 152, 163

People v. Lopez (2025) 17 Cal.5th 388, 396–400

Fifth Holding:

In Stamps, the Supreme Court held that a trial court may not modify a plea agreement because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. But, as the Supreme Court explained in Doe v. Harris, the terms of the plea agreement can be affected by changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Thus, under Doe, the defendant’s 2016 plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333. Consequently, requiring the parties compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. We therefore conclude that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 701

Doe v. Harris (2013) 57 Cal.4th 64, 73-74

People v. Harrell (2023) 95 Cal.App.5th 161, 168

People v. Lopez (2021) 73 Cal.App.5th 327, 346

Extensive Gary Note, NOT In The Opinion:

Gary note: I think I first noted this in my summary for Case 000532. But effective 1/1/2025, section 1171 provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a case that originally issued a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?”

On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.”

The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.  As I stated, the “published” opinion also was wiped off the books when the Supreme Court ordered it depublished.

In the recent decision People v. Mitchell (2026) 19 Cal.5th 729, the Supreme Court indicated its awareness of section 1171–as it obviously did when it transferred the Montgomery case–but declined to apply it where the case was a direct appeal from the judgment itself, in which the appellant challenged the stipulated sentence–in which he agreed to and received an upper term before section 1170 was amended to require jury findings for upper terms.

See Mitchell’s footnote 9. Keep in mind that section 1171 was created to guide courts in the handling of newly enacted ameliorative legislation. The Supreme Court in Mitchell seems to have left open the question where the appeal is from the original judgment itself, rather than an appeal from an attempt at securing relief from ameliorative statutes. Its footnote 9 ends, “We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

And for the rest of the story, the Court of Appeal has since, in an unpublished sentence, remanded the matter to the trial court to permit the defendant to seek relief under the ameliorative provisions.  At that time, the defendant may present the argument that section 1171 bars the prosecution or the court from seeking that the plea agreement be set aside if either the prosecutor or the court is not satisfied with any resulting modification of the sentence.

Authority:

Gary has no authority, just musings.

Discretion, Sentencing

Case 000722

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of selling cocaine base and possessing cocaine base for sale. Under section 654, it was error to sentence the defendant on each, to run concurrently. The sentence on one of the counts must be stayed.

First Holding:

Section 654 prohibits multiple punishment for the same act or indivisible course of conduct. Before 2022, when a single act or omission was punishable under multiple provisions, the court was required to impose sentence under the provision carrying the longest potential term. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to afford trial courts discretion to impose punishment under either applicable provision.

Authority:

PEN 654(a)

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

Second Holding:

Multiple punishments violate section 654 because the defendant’s possession of cocaine base for sale and the sale of cocaine base arose from an indivisible course of conduct with a single objective. Under the amended statute, the trial court has discretion to impose the sentence on either count 1 or count 2, including the option of selecting the shorter term.

Authority:

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

Appellate Principles, Discretion, Racial Justice Act, Standard of review

Case 000720

Posted on by Gary McCurdy

Error and/or relief

The defendant’s petition for writ of mandate is granted. Filed as a habeas corpus petition, the People aver that the instant petition should be treated as a petition for writ of mandate from the trial court’s denial of the defendant’s discovery motion and concede that the defendant established a plausible factual foundation for discovery.

The People assert, and the defendant agrees, the matter should be remanded for development of the record on the relevant factors governing Racial Justice Act [RJA] discovery and for the trial court to consider those factors in the first instance.

We conclude the trial court misapplied the applicable legal standards and erred by denying the defendant’s motion. We therefore grant the petition, direct the trial court to vacate its denial of the defendant’s discovery motion, and remand for further proceedings consistent with this opinion.

First Holding:

We have the discretion to treat a petition for writ of habeas corpus as a petition for writ of mandate. Writ review is appropriate where a petition raises novel legal issues of widespread interest. The RJA remains fairly new legislation and has been amended several times since its inception. Though laudable in its purposes, the Act has proven challenging to the courts in its implementation. Given there are few appellate decisions interpreting the Act thus far, several appellate courts have found writ review appropriate in addressing issues raised under the RJA.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 340

Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 509

Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612

Brandt v. Superior Court (1985) 37 Cal.3d 813, 816

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147, 156 [the RJA’s command is simple, but the implementation is somewhat complex; writ review appropriate to address questions of first impression including how to interpret the RJA’s discovery provision]]

Jackson v. Superior Court (2025) 109 Cal.App.5th 372, 382

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46 [writ of mandate issued and matter remanded for the trial court to determine if the defendant was entitled to the appointment of counsel]

Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 133 [writ of mandate issued, and the trial court’s order denying the petitioner a hearing vacated after the appellate court determined the petitioner met his burden and could proceed to an evidentiary hearing]

Second Holding:

Here, the parties agree without objection that the defendant’s petition for writ of habeas corpus should be treated as a petition for writ of mandate. We therefore exercise our discretion to construe the petition as a petition for writ of mandate of the trial court’s denial of the defendant’s RJA discovery motion and address the court’s order on the merits.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Payne (1988) 202 Cal.App.3d 933, 937 [appeal from nonappealable order treated as application for writ of mandate and addressed on the merits]

Third Holding:

Two courts of appeal have concluded, albeit with different reasoning, that a trial court’s order denying a request for discovery under the RJA is not appealable. Both courts recognized, however, that such an order may be challenged by a petition for writ of mandate.

Authority:

In re Montgomery (2024) 104 Cal.App.5th 1062, 1071–1072, 1076 review dism. Dec. 30, 2025, S287339

People v. Serrano (2024) 106 Cal.App.5th 276, 292, 293, review dism. Dec. 30, 2025, S288202

In re Steele (2004) 32 Cal.4th 682, 692 [denial of a sec. 1054.9 discovery motion may be challenged by a petition for writ of mandate]

Fourth Holding:

A discovery order is generally reviewed for abuse of discretion because management of discovery lies within the sound discretion of the trial court. We review the factual underpinnings of a discretionary determination for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

The scope of discretion always resides in the particular law being applied. If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 55

Sargon Enterprises Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773

Fifth Holding:

Effective January 1, 2021, the Legislature enacted the RJA (Assembly Bill No. 2542 (2019–2020 Reg. Sess.) to eliminate racial bias from California’s criminal justice system; to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing; and to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences. To achieve these objectives, the RJA added section 745 to the Penal Code and amended sections 1473 and 1473.7.

Authority:

AB 2542

PEN 745

PEN 1473

PEN 1473.7

Sixth Holding:

Section 745(a) proclaims that the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. It specifies four categories which, if proven by a preponderance of the evidence, constitute a violation of the RJA.

As relevant here, a violation occurs under section 745 (a)(3) where the defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.

Also relevant here, a violation occurs under section 745(a)(4)(A) where a longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.

Authority:

PEN 745

Seventh Holding:

A defendant in custody may file a petition for writ of habeas corpus alleging a violation of the RJA. Specifically, section 745(b) provides that a defendant may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of subdivision (a). The RJA also amended section 1473, which identifies bases for prosecuting a petition for writ of habeas corpus, to add a subdivision governing the litigation of RJA claims.

Authority:

People v. Wilson (2024) 16 Cal.5th 874, 945

Eighth Holding:

If a habeas petition makes a prima facie showing of entitlement to relief under the RJA, the trial court must issue an order to show cause and hold an evidentiary hearing. If, after a hearing, the court finds a violation of section 745(a) by a preponderance of the evidence, the court shall impose a remedy specific to the violation pursuant to section 745(e).

Authority:

PEN 1473(e)

Ninth Holding:

If a court finds after judgment has been entered that a conviction was sought or obtained in violation of section 745(a), the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with section 745(a). If the court finds that the only violation of section 745(a) that occurred is based on paragraph (3) of section 745(a), the court may modify the judgment to a lesser included or lesser related offense.

If a court finds after judgment has been entered that only the sentence was sought, obtained, or imposed in violation of section 745(a), the court shall vacate the sentence, find that it is legally invalid, and impose a new sentence. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

Authority:

PEN 745(e)

Tenth Holding:

The RJA contains a discovery provision in section 745(d). If a defendant believes a violation of the RJA has occurred, he or she may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. Upon a showing of good cause, the court shall order the records to be released.

Authority:

PEN 745(d)

Eleventh Holding:

In Young, the Court of Appeal addressed what constitutes good cause for purposes of discovery under section 745(d). The court conducted a comprehensive analysis of the RJA’s enactment, as well as general provisions governing discovery in criminal cases.

Drawing on the Pitchess standard for discovery of law enforcement personnel records, the Young court held that in order to establish good cause for discovery under the RJA, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case.

This standard for discovery under section 745(d) is even more relaxed than the Pitchess standard in two respects. First, while a Pitchess motion must be accompanied by an affidavit setting forth a reasonable belief that the requested discovery is material to the subject matter of the case, there is no comparable affidavit requirement for discovery under the RJA. Second, unlike in a Pitchess motion, an RJA discovery motion has no materiality requirement, at least not in the sense that the defendant must show a logical link between some defense and a pending charge.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 149-160

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Twelfth Holding:

The RJA’s counterpart to Pitchess materiality is relevance to a potential violation of section 745(a). Since a section 745(a) violation may be proved up in several different ways based on a variety of direct or circumstantial evidence of discrimination under subdivision (a)(1)–(4), the threshold showing for good cause must be commensurately broad and flexible.

The limiting factor is relevance in the discovery sense—that is, each request for disclosure must be reasonably calculated to lead to discovery of admissible evidence probative of a section 745(a) violation. This subject matter limitation on the scope of discoverable material creates an outer boundary that, if crossed, may justify an order narrowing or otherwise limiting the obligation to respond. And as always in the context of discovery, the trial court has ample discretion to manage where the discovery-relevance boundary lies.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 160

Thirteenth Holding:

The Young court found support for its articulated good cause standard for discovery in the escalating burdens of proof within section 745. The burden at the discovery stage is a good cause showing, the burden at the prima facie stage is higher, and the burden at the evidentiary hearing is higher still—proof of an RJA violation by a preponderance of the evidence.

As the least onerous of the statute’s burdens of proof, the plausible justification standard should not be difficult to meet. Accordingly, where the defendant makes a showing of plausible justification that there was or could have been a violation of the RJA, thus triggering access to all relevant evidence concerning a potential violation of section 745(a), it will likely be an abuse of discretion to totally foreclose discovery.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 160-161, 168-169

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 61

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the 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 by the jury or by the judge in a court trial.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Discretion, Standard of review

Case 000672

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying his motion for mental health diversion because substantial evidence does not support the trial court’s finding that he posed an unreasonable risk of danger to public safety, as defined under section 1001.36.

First Holding:

In 2018, the Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

As presently enacted, section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

If a defendant meets these eligibility requirements, the court also must find that the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial. The defendant agrees to comply with treatment as a condition of diversion. And (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(b)

People v. Graham (2024) 102 Cal.App.5th 787, 795

Fourth Holding:

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). That provision of section 667 sets forth eight categories of offenses that are commonly referred to as “super strikes,” including any homicide offense, and including any attempted homicide offense, defined in sections 187 to 191.5, inclusive.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [noting that the “super strikes” include murder and attempted murder]

Fifth Holding:

Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the statutory requirements are met.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

In addition, we review a trial court’s factual findings in support of its ruling for substantial evidence.

On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Seventh Holding:

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals. Further, in the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893

Abstracts and Minutes, Appellate Principles, Discretion, Sentencing

Case 000668

Posted on by Gary McCurdy

Error and/or relief

It is unclear whether the court intended to impose as the base term the low term of 16 months or the middle term of two years, we remand for the court to clarify its intended sentence, as well as to correct a clerical error in the abstract of judgment.

First Holding:

At the sentencing hearing, the court stated it was imposing the low term, two years in prison. It doubled that term as it was a two-strikes sentence, and added three years for an injury enhancement, and stated the total sentence was seven years. The low term for the crime, however, carries a triad of 16 months, 2 years, or 3 years. Thus, the low term is 16 months, and two years is the middle term.

The matter must be remanded for the court to clarify whether it intended to impose the low term (in which case the sentence must be recalculated) or the middle term (in which case the sentence will remain the same as orally pronounced as two years doubled plus three years for the enhancement for a total of seven years).

We stress that, if the court indeed intended to impose the seven-year total sentence based on the middle term of two years, doing so was not an abuse of the court’s discretion considering the relevant sentencing factors considered by the court on the record. A sentence based on the low term of 16 months would also not be an abuse of the court’s sentencing discretion.

Authority:

People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1226 [trial court does not abuse its discretion by imposing the presumptive middle term rather than the low term where the court sets forth on the record the facts and reasons for choosing the sentence imposed at time of sentencing, and that decision does not fall outside the bounds of reason under applicable law and relevant facts]

Second Holding:

Though the conviction was by plea, no certificate of cause is required for the defendant to raise his challenges to the sentence in this case. Section 1237.5 provides a defendant may not appeal from a guilty or no contest plea without a certificate of probable cause for an appeal based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. Even without a certificate of probable cause, a defendant may nonetheless appeal issues related to post-plea matters, such as the sentence, that do not challenge the plea’s validity.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 694

Third Holding:

However, even when a defendant purports to challenge only the sentence imposed, a certificate is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement, as such a claim is, in substance, a challenge to the validity of the plea. Thus, where a defendant enters a negotiated plea in which the parties agree the court will impose a specific, agreed-upon sentence, any challenge to that sentence is a challenge to the validity of the plea and requires a certificate of probable cause.

(Gary note: This is a direct appeal from the original sentencing. It should not be confused with an appeal from a resentencing under one of the recent ameliorative provisions, such as 1172.75. Where it is an appeal from such a resentencing, it is important to review section 1171, effective 1/1/2025, which states in subdivision (c)(3) that “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” I have not seen any instances in which there was discussion of the need for a certificate of probable cause in appeals from decisions in the ameliorative provisions context, but section 1171(c)(3) seems to me to specifically address (and countermand) those aspects of the Stamps decision regarding setting aside the plea.

(I would argue that Stamps also would not be authority to require a certificate of probable cause to appeal a ruling on the application of ameliorative provisions where there was a stipulated sentence, given the legislation that, in essence, not only doesn’t challenge the plea agreement, it specifically states that application of the ameliorative provisions will not result in the setting aside of the plea itself. As I said, I have not noticed the question of certificates of probable cause in appeals from hearings involving ameliorative sections such as–but not limited to–1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. See my comment in case 000532 for a more extensive discussion on section 1171, including the observation that the Supreme Court transferred a case with a Stamps issue back to the Court of Appeal with instructions to consider the impact of the then-recently added section 1171.)

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 694

People v. Hurlic (2018) 25 Cal.App.5th 50, 55

People v. Panizzon (1996) 13 Cal.4th 68, 79

Fourth Holding:

By contrast, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence, absent contrary provisions in the plea agreement, as long as the defendant is not challenging the trial court’s authority to impose a sentence within a negotiated lid or maximum.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 790

People v. Shelton (2006) 37 Cal.4th 759, 763

Fifth Holding:

No certificate of probable cause is needed to challenge a court’s failure to strike a prior strike where striking a strike would still result in a sentence that falls within the range contemplated by the plea.

Authority:

People v. Cole (2001) 88 Cal.App.4th 850, 872

People v. Buttram (2003) 30 Cal.4th 773, 790-791, 777, 786-787

Sixth Holding:

The abstract must also be corrected to remove the notation “YTL” (for “years to life”), as no indeterminate life term was imposed in this case.

(Gary note: The court listed no authority for that correction, but there is plenty it could have relied on, some of which I list below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000665

Posted on by Gary McCurdy

Error and/or relief

On remand for resentencing in the earlier appeal, the court erred in refusing to conduct a full resentencing. It was also error for the court to impose the upper term on the gun use enhancement where the aggravating circumstances were not stipulated to or found true by a jury beyond a reasonable doubt. And the abstract of judgment must be amended to show that he was convicted of false imprisonment, not of kidnapping.

First Holding:

We consider a trial court’s sentencing decisions under an abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings not supported by substantial evidence.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

Second Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. That the appellate court gave specific directions on remand does not preclude a full resentencing hearing as required by Buycks. Because the judgment is no longer final, new statutes imposing new lighter penalties are deemed to be sufficient to apply upon resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Walker (2021) 67 Cal.App.5th 198, 204

People v. Padilla (2022) 13 Cal.5th 152, 160, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence whereupon the trial court may impose any appropriate sentence]

Third Holding:

Where, as here, a statute specifies three possible terms, the presumptive sentence is the middle term unless there are aggravating circumstances justifying imposition of the high term. The aggravating circumstance must be stipulated to by the defendant or found true beyond a reasonable doubt by a jury or, if jury is waived, by the court in a court trial.

The trial court acknowledged that a bifurcated trial would be necessary to find the aggravating circumstances true. Nevertheless it relied on our “very specific instructions” in declining to hold such a trial.

Where, as here, the record reflects no jury finding, no waiver thereof, and no admission by the defendant of the aggravating circumstances, the trial court’s reliance on unproven aggravating factors to impose an upper term sentence violates the Sixth Amendment.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 767–769

Fourth Holding:

The error is harmless only if a reviewing court can conclude beyond a reasonable doubt that a jury would have found true all the aggravating facts relied upon by the sentencing court to justify the upper term. On this record we agree with the parties that we cannot draw such a conclusion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761, 775

Fifth Holding:

We direct the trial court to issue a corrected abstract of judgment. The defendant was convicted of the offense of false imprisonment, a violation of Penal Code section 237, not kidnapping, a violation of Penal Code section 207.

(GARY Note: The court listed no authority for correction of erroneous abstracts, likely because the error and remedy are so obvious. But I have listed several cases that the court could have relied on.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Discretion, Standard of review

Case 000661

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an improper legal standard when determining whether the defendant was eligible for mental health diversion, made findings regarding his eligibility that were not supported by the evidence, and failed to provide a basis for the exercise of its residual discretion to deny his motion. We accordingly conditionally reverse the judgment and remand for further proceedings on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 states that a trial court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

Authority:

PEN 1001.36(a)

Second Holding:

The statute identifies two eligibility requirements: (1) in the last five years the defendant has been diagnosed with or treated for “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia” (§ 1001.36, subd. (b)(1)); and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)(2)

Third Holding:

The statute identifies four suitability criteria: (1) a qualified mental health expert has opined that the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) the defendant (if mentally competent) consents to diversion and waives the right to a speedy trial; (3) the defendant (if mentally competent) agrees to comply with treatment as a condition of diversion; and (4) the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c

Fourth Holding:

If the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Fifth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Sixth Holding:

We review a trial court’s ruling on mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Seventh Holding:

If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. The issue before us is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 402

Eighth Holding:

Reviewing courts have consistently made clear that the legislation’s aim is for diversion to apply as broadly as possible so as to increase the provision of mental health treatment for the betterment of individuals and society as a whole. “A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved.”

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 58

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

Discretion, Sentencing, Sufficiency of and substantial evidence

Case 000657

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the medically eligible defendant’s petition for compassionate release under section 1172.2, because there was insufficient evidence to support the court’s finding that there was an unreasonable risk that the defendant would commit a super strike.

First Holding:

The Penal Code imposes a presumption favoring compassionate release for medically-eligible individuals and, as to the risk of re-offense, requires an assessment not of whether a new crime would be theoretically possible, but whether there would be an unreasonable risk of a super strike as defined by the law. On this record, we conclude there is insufficient evidence of an unreasonable risk that defendant would commit a super strike if granted compassionate release. Accordingly, we will reverse the trial court’s order denying the petition for compassionate release and direct the trial court to recall defendant’s sentence in accordance with section 1172.2.

Authority:

PEN 1172.2

Second Holding:

A superior court abuses its discretion when the factual findings essential to its decision lack evidentiary support. The superior court’s factual findings are reviewed for substantial evidence.

Authority:

People v. Cluff (2001) 87 Cal.App.4th 991, 998

In re White (2020) 9 Cal.5th 455, 470

Third Holding:

Section 1172.2 authorizes a trial court to recall the sentence of an incarcerated person who is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living. If the trial court finds that an incarcerated person satisfies this criterion, the statute establishes a presumption favoring recall and resentencing that may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision section 1170.18(c), based on the incarcerated person’s current physical and mental condition.

Authority:

PEN 1172.2(b)(2)

Fourth Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony offense punishable by life imprisonment or death, and certain sexually violent offenses.

Authority:

PEN 1170.18(c)

Fifth Holding:

After reviewing the evidence of the physical and mental condition of the defendant, the court concluded that there was insufficient evidence to support the finding that he was capable of committing a super strike. The appellate court relied on Lewis, a case in which it was held to be an abuse of discretion to deny compassionate release on evidence that showed that the defendant perhaps had the capacity to commit a super strike, but that did not necessarily establish an unreasonable risk that he would commit such an offense.

Authority:

People v. Lewis (2024) 101 Cal.App.5th 401, 407-409

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821, 837, 838

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. A jury–not the judge, absent a jury waiver or stipulation–must determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

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, 1078, 1083–1084, 1086

Fourth Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Discretion, Sentencing

Case 000636

Posted on by Gary McCurdy

Error and/or relief

The matter was remanded to the lower court following the defendant’s first appeal in this case so that it could exercise its discretion to strike the vicarious gun use enhancements. On resentencing following the defendant’s first appeal in this case, the trial court imposed enhancements for the personal use of a firearm (sec. 12022.53(b), in lieu of the vicarious liability enhancements found true by the jury under subdivisions (d) and (e)(1) of section 12022.53.

The personal use of a firearm enhancements must be vacated because there was no jury finding that the defendant had personally used a firearm during the offense. The vicarious enhancement must be reimposed, and the matter should be remanded back to the trial court so that it may exercise its discretion to strike those enhancements.

First Holding:

A trial court has discretion to strike a section 12022.53(d) firearm enhancement and impose a lesser uncharged enhancement under subdivisions (b) or (c). A trial court is not categorically prohibited from imposing an uncharged, lesser-included enhancement when the prosecution has alleged the greater enhancement and the facts supporting the lesser enhancement have been alleged and found true.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

Second Holding:

In Arellano, our Supreme Court held that a trial court resentencing a petitioner under section 1172.6 lacked authority to impose a firearm enhancement that had never been admitted or found true by a trier of fact. The enhancement had been dismissed as part of a negotiated disposition, and the trial court relied on police reports and other hearsay summaries to conclude that the defendant was armed.

The court rejected this approach and explained that resentencing under section 1172.6 is limited to the target offense or underlying felony. A similar defect occurred here. The jury never found that the defendant personally used a firearm. Instead, the jury returned true findings only under section 12022.53, subdivisions (d) and (e)(1), which required proof that a principal discharged a firearm during a gang-related offense, causing great bodily injury or death.

As in Arellano, the trial court later relied on its own factual findings from a collateral proceeding (a separate hearing on the defendant’s petition for resentencing under section 1172.6) to conclude that the defendant personally used a firearm during the offense. The trial court’s finding in a collateral proceeding was not sufficient to support imposition of the enhancement.

The matter is remanded for resentencing, during which the court shall exercise its discretion under section 1385 and Tirado to determine whether to strike or dismiss the lawfully adjudicated enhancements.

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 464-465