Tag Archives: Enhancements

Amelioration, Duty of the court, Jury trial, Retroactivity, Sentencing, Sixth Amendment

Case 001151

Posted on by Gary McCurdy

Error and/or relief

The court made several sentencing errors. The strike based on a violation of section 186.22 requires examination whether the elements found true at the time of conviction meet the heightened requirements of the amendments under AB 333.

The court imposed the upper term on several counts despite there being no jury trial waiver nor stipulation by the defendant to the aggravating factors. Further, the court relied on factors in aggravation that were also the basis of enhancements, violating the prohibition against dual use.

The court erred in imposing two full terms consecutively for two counts, as consecutive determinate (subordinate) terms are limited to one-third the middle term.

The court miscalculated the credit for time served.

First Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of “benefit” to mean “to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a prior serious felony.

We remand to permit the prosecution the opportunity to establish that the prior conviction (from more than 15 years ago) constitutes a strike and a prior serious felony conviction under current law. conviction.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

Second Holding:

Section 1170(b)(1) provides that 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). Under subdivision (b)(2), the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

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. A defendant is entitled to have a jury determine the facts justifying an upper term based on the “increasing seriousness” of a defendant’s prior convictions.

Authority:

PEN 1170(b)

Cal. Rules of Court, rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1085-1086 [increasing seriousness of a crime required a jury determination]

People v. Lynch (2024) 16 Cal.5th 730, 759–760

Third Holding:

The court erred in relying on two factors in aggravation that formed the basis of enhancements for which punishment was imposed. This was error because of the prohibition against the dual use of facts to impose an upper term sentence based on the facts of an enhancement.

Authority:

PEN 1170(b)(5)

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

Fourth Holding:

The court imposed two consecutive 18-year terms for each of the attempted murder counts, which consisted of the upper term of nine years double for the prior strike. This was error. The trial court may the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court may impose only one-third of the middle term’for subordinate terms.

Authority:

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

Fifth Holding:

The court erred in its calculation of credit for time served, and on remand the court shall ensure that the abstract of judgment be amended to reflect the proper credits.

Authority:

PEN 2900.5

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.

Due process, Elements of crime, Pleading, Sentencing

Case 001133

Posted on by Gary McCurdy

Error and/or relief

The gang conspiracy convictions are unsupported by substantial evidence that defendants committed the target offense charged, i.e., a violation of section 26100(c). We therefore modify the verdicts on count 5 to reflect convictions for gang conspiracy based on a lesser included target felony violation of section 26100(d). Resentencing is required on this count and vacate the sentences.

The sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22(b)(4) was neither pled nor proved. Additionally, imposition of both the gang enhancement and firearm enhancement on this count violates the dual use prohibition set forth in section 12022.53(e)(2).

We remand for resentencing.

(Gary note: This was a multiple-defendant case with an extremely long opinion. There were many issues, most of which resulted in a finding of no error, and I have not attempted to list them all.)

First Holding:

The information charged defendants in count 5 with gang conspiracy for promoting, furthering, assisting, or benefitting from felonious criminal conduct, specifically Penal Code section 26100(c). Section 26100(c) is violated by the willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle.

Authority:

PEN 26100(c)

Second Holding:

In this case there was no evidence that a firearm was discharged at anyone other than an occupant of a motor vehicle. Under sections 1181 and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

In a conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime included in the alleged target offense.

Authority:

PEN 1181

PEN 1260

People v. Navarro (2007) 40 Cal.4th 668, 671

People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [the trial court has a sua sponte obligation to instruct on lesser included target offenses if there is evidence from which the jury could find a conspiracy to commit a lesser offense]

Third Holding:

It is well settled that a section 182.5 conspiracy (i.e., conspiracy in connection with participation in a criminal street gang) relates only to the commission of a felony. Thus, a gang conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.

A violation of section 26100(d) [discharging a firearm from a motor vehicle] is a wobbler, meaning it is chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor. An attempted or completed felony violation of section 26100(d) may appropriately serve as the target offense for a gang conspiracy conviction.

In light of the insufficient evidence of a violation under subdivision (c), we will modify the verdicts on count 5 to reflect the gang conspiracy convictions are predicated upon a felonious violation of section 26100(d).

Authority:

PEN 26100(d)

People v. Johnson (2013) 57 Cal.4th 250, 262

People v. Park (2013) 56 Cal.4th 782, 789

Fourth Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. However, a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.

When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

An offense is necessarily included within another if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.

Authority:

People v. Reed (2006) 38 Cal.4th 1224, 1226-1227

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Sanchez (2001) 24 Cal.4th 983, 987 [a defendant cannot be convicted of both a greater offense and a necessarily included offense based on the commission of the same act]

People v. Robinson (2016) 63 Cal.4th 200, 207

Fifth Holding:

The elements of the crimes of active participation in a gang (section 186.22) and gang conspiracy (section 182.5) are nearly identical.

However, whereas active participation may be committed by any of the alternative means of promoting, furthering, or assisting in felonious conduct by gang members, gang conspiracy may be committed by any of the alternative means of promoting, furthering, assisting, or benefitting from the felonious conduct of gang members.

Although all the elements of the active participation offense are also included in the gang conspiracy offense, it is possible to commit gang conspiracy without committing the active participation offense if the defendant merely benefits from the felonious criminal conduct of fellow gang members.

Thus, because gang conspiracy may be committed without necessarily committing the offense of active participation in a criminal street gang, active participation is not a necessarily included lesser offense.

Authority:

PEN 186.22

PEN 182.5

People v. Robinson (2016) 63 Cal.4th 200, 207

People v. Hinojos (2025) 111 Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that section 654 did not bar imposition of the gang enhancement on the defendant’s gang conspiracy convictions]

Sixth Holding:

The court erred in sentencing defendants pursuant to section 186.22(b)(4) because this alternate penalty provision was not alleged in the information. Section 186.22(b)(4) is an alternate penalty provision prescribing indeterminate terms of life imprisonment for those who committed certain enumerated felonies under the same gang-related circumstances described elsewhere in section 186.22. If the elements are present, the sentence will be an indeterminate term of life, with a specified minimum term.

A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. As a matter of due process, an alternative punishment provision must be pleaded and proved.

The failure to plead an alternate penalty provision deprives the defendant of fair notice of his or her sentencing exposure by failing to inform him or her that an alternate sentence carrying a higher term will be pursued.

Additionally, a defendant is deprived of adequate notice if punishment is imposed under one provision, and an enhancement was alleged under a different, mutually exclusive provision, even if facts supporting the alternate allegation are contained in the information.

Even if the statute alleged in the information cross-references the statute under which an alternate penalty is pursued, the information fails to inform the defendant that the prosecution will seek to impose the more stringent sentence; therefore, imposition of the higher alternate sentence would violate due process.

Authority:

People v. Lopez (2022) 12 Cal.5th 957, 970

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899–900, and fn. 6

In re Vaquera (2024) 15 Cal.5th 706, 717, 723, 724 [information alleging One Strike allegation pursuant to sec. 667.61(b)/(e)(4) for an offense against more than one victim was inadequate to provide the defendant notice the prosecution might seek a One Strike sentence pursuant to sec. 667.61(j)(2) for an offense against a child under 14 years of age, even though the facts supporting the allegation were contained in the information].

People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under sec. 186.22(b) did not give the defendant adequate notice that an alternate sentence under subd. (d) might apply]

Seventh Holding:

The matter must be remanded for full resentencing.

Authority:

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

People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing hearing as to all counts in light of an unauthorized enhancement]

People v. Delgado (2010) 181 Cal.App.4th 839, 855 [It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence]

People v. Lopez (2022) 12 Cal.5th 957, 975–976 [remanding for resentencing after finding the alternate penalty provision set forth in sec. 186.22(b)(4) to be inapplicable]

Eighth Holding:

In a case in which it is proper to invoke section 186.22(b)(4), the court cannot both invoke that alternative sentencing scheme and impose the firearm enhancement under section 12022.53(e) on a principal who did not personally use the firearm. Only one of these enhancements may be imposed.

Section 186.22(b)(4) permits an indeterminate life sentence for criminal gang activity if certain conditions are present. Section 12022.53(e)(1) extends liability for the firearm use of another to a principal who did not personally use or discharge the weapon, but who violated subdivision (b) of section 186.22.

Section 12022.53(e)(1) creates an exception to the personal use requirement of section 12022.53(b) through (d) in a prosecution where findings have been made pursuant to section 186.22. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances.

However, as a consequence of this expanded liability under section 12022.53(e), the Legislature has expressly determined in section 12022.53(e)(2) to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.

Authority:

PEN 186.22(d)

PEN 12022.53(e)(2)

People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282

People v. Brookfield (2009) 47 Cal.4th 583, 593, 595-596 [In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53(j), choose the provision that will result in a greater sentence.]

Ninth Holding:

The availability of increased punishment is a matter of pleading and proof. The information alleged only that a principal personally discharged and used a firearm. Moreover, the prosecution did not request that the jury be instructed regarding personal firearm use or discharge or the firearm enhancement, and the verdict did not call for a jury finding on this point. There was therefore no finding that the defendant personally used or discharged a firearm in the commission of the crime. As a matter of law, the special circumstance finding in a different count applies only to that count and does not provide a finding sufficient to overcome the bar against dual use of the gang finding set forth in section 12022.53(e)(2).

Authority:

PEN 12022.53(j) [For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ….]

People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [Whether a defendant used a firearm in the commission of an enumerated sex offense is for the trier of fact to decide.]

Amelioration, Elements of crime, Sentencing

Case 001117

Posted on by Gary McCurdy

Error and/or relief

Following the second of defendant’s two previous appeals, the matter was remanded to give the prosecution the opportunity to retry the gang enhancements. The prosecution declined to retry the gang enhancements. At sentencing, the court imposed previously stayed firearms enhancements that were tethered to the gang enhancements.

This was error. Once the prosecution declined to retry the gang enhancements, the firearm enhancements could no longer be imposed.

First Holding:

We observe that on remand the court resentenced the defendant to a higher aggregate term than both the original and second sentences. We note that although in some cases imposing a greater sentence to correct an unauthorized sentence is permissible, imposing a greater sentence after a successful appeal may be an excess of jurisdiction. Here, the issue is likely moot based on the disposition herein.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1

People v. Trammel (2023) 97 Cal.App.5th 415

Second Holding:

The trial court’s sentence on the most recent remand, imposing the previously-stayed gang-related firearms enhancements, was unauthorized. The firearms enhancements were contingent on the vacated gang enhancements. Once the prosecution declined to retry the gang enhancements, the allegations found true by the jury under section 12022.53(d) and (e)(1), having been reversed, could not be imposed.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746

Amelioration, Duty of the court, Retroactivity, Sentencing, Standard of review

Case 001116

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.

First, it 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, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, 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.

Authority:

People v. E.H. (2022) 75 Cal.App.5th 467, 477

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

Second Holding:

Under Estrada, in the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date. When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.

Authority:

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

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

Third Holding:

When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162

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

People v. Salgado (2022) 82 Cal.App.5th 376, 380-381 [the defendant was entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under section 1170(d)]

Fourth Holding:

The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.

Authority:

People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]

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

Fifth Holding:

The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 668-669

Sixth Holding:

Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]