Tag Archives: Enhancements

Sentencing, Sixth Amendment, Standard of review

Case 000491

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.

First Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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.

Authority:

PEN 1170

Second Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. 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. In other words, Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

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

Third Holding:

We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.

Authority:

PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]

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

People v. Castorena (1996) 51 Cal.App.4th 558, 562

Fourth Holding:

The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, the court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 776, 778

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Fourth Holding:

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). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205

Sentencing

Case: 000403

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.

First 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. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]

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]

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431

People v. Henderson (1963) 60 Cal.2d 482, 495-497

Second Holding:

When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, 764

People v. Price (1986) 184 Cal.App.3d 1405, 1413

People v. Karaman (1992) 4 Cal.4th 335, 348–350

Third Holding:

Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.

We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Trammel (2023) 97 Cal.App.5th 415, 435

Elements of crime, Sentencing

Case: 000390

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of five counts of first degree murder and found true five multiple-murder special circumstances (Pen. Code, § 190.2, subd. (a)(3)). The trial court sentenced him to five consecutive state prison terms of life without parole for the murder counts. It was error to submit to the jury more than one multiple-murder special circumstance allegation of multiple murder, and four must be stricken. However, this does not affect the sentence because the trial court properly applied the special circumstance to impose life without parole for all five murder counts.

First Holding:

The jury should have found only one multiple-murder special circumstance rather than five.

Authority:

PEN 190.2(a)(3)

People v. Mickey (1991) 54 Cal.3d 612, 678

People v. Garnica (1994) 29 Cal.App.4th 1558, 1563–1564

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 353

In re K.F. (2009) 173 Cal.App.4th 655, 660

People v. McCullough (2013) 56 Cal.4th 589, 596

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

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

People v. Flores (2020) 9 Cal.5th 371, 432