Tag Archives: Enhancements

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

Case 001115

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:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

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. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

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

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

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740, 744–745

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

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.

In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 856

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Jurisdiction, Sentencing, Standard of review, Statutory interpretation

Case 001105

Posted on by Gary McCurdy

Error and/or relief

The court erred in staying the greater firearm enhancement under section 654 in order to impose a lesser firearm enhancement, rather than striking it under section 1385.

First Holding:

After considering the defendant’s youth as a mitigating factor, the court chose to sentence the defendant on the firearm enhancement under section 12022.5(a) (for 10 years) instead of under section 12022.53(c) (punishable by 20 years). The court purported to stay the 12022.53(c) enhancement under section 654.

Authority:

PEN 12022.5(a)

PEN 12022.53(c)

Second Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

Authority:

PEN 654

Third Holding:

In general, we review for abuse of discretion the trial court’s decision not to strike a sentence enhancement under section 1385(a). However, the trial court purported to stay the 20-year enhancement pursuant to section 654. Under Corpening, at step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo.

In Gonzales, the Supreme Court found that section 654 did not apply to whether the trial court properly stayed the punishment for the firearm enhancement at issue in that case. Although the trial court correctly stayed all of the prohibited firearm enhancements, it incorrectly issued those stays under section 654, which applies only to offenses punishable in different ways, not to prohibited enhancements committed in the commission of an unstayed offense.

Thus, the issue we resolve is one of statutory interpretation regarding the trial court’s interpretation of its authority to impose, stay, or strike firearm enhancements under sections 12022.53(c), 12022.5(a), and 1385.

Authority:

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

People v. Corpening (2016) 2 Cal.5th 307, 312

People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, fn. 5

Fourth Holding:

The court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. Under the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. King (2022) 77 Cal.App.5th 629, 635

Fifth Holding:

The court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by section 12022.53.

(Gary note: The appellate court cited several passages from section 12022.53 that reflect that a LESSER enhancement may be stayed (rather than stricken) when both the lesser and the greater are found true, as only one can be imposed. It reviewed the language the trial court used in sentencing the defendant to the lesser firearm enhancement, and concluded that the intention of the trial court could only be carried out by striking the greater enhancement under section 1385, which is permitted by section 12022.53(h).)

Authority:

PEN 12022.53(h)

PEN 1385

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Abstracts and Minutes, Fines and fees, Sentencing

Case 001090

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose an enhancement for great bodily injury under section 12022.7 in addition to the enhancement for use of firearm under section 12022.53(d). Further, the abstract of judgment reflects a $10,000 restitution fine that was not included in the oral pronouncement, and it must be corrected.

First Holding:

On count 1, the trial court imposed both a 3-year determinate term for great bodily injury under section 12022.7(a) and a 25-years-to-life indeterminate term for personally and intentionally discharging a firearm and proximately causing great bodily injury under section 12022.53(d). Because section 12022.53(d) requires a finding of great bodily injury, we see this as analogous to Gonzales, and order the enhancement under section 12022.7 stayed.

In Gonzales, the Supreme Court held that section 12022.53 requires that, 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.

Authority:

PEN 12022.7

PEN 12022.53(d)

People v. Gonzalez (2008) 43 Cal.4th 1118, 1130

Second Holding:

The sentencing court imposed a restitution fine of $10,000 but suspended it pending a hearing on the defendant’s ability to pay. The abstract of judgment, however, indicates that the $10,000 restitution fine was imposed, and there is no indication that an ability to pay hearing occurred. We therefore exercise our authority to modify the abstract of judgment to reflect the oral pronouncement by striking the $10,000 restitution fine pursuant to section 1202.4(b).

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1473 [exercising authority to modify judgment, impose sentence, and stay execution of sentence]

People v. Felix (2009) 172 Cal.App.4th 1618, 1631 [correcting abstract to match oral pronouncement]

Sentencing, Sixth Amendment, Standard of review

Case 001039

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term on the firearm enhancement based on aggravating circumstances which were not pleaded in the information nor found true by the jury. Remanded for resentencing.

First Holding:

The prosecution conceded that no aggravating circumstances were alleged against the defendant to support imposing the upper term on the enhancement. But she asserted that the evidence showed the defendant committed the crime with planning, sophistication, and professionalism, which is a factor in aggravation under California Rules of Court, rule 4.421(a)(8). Over objection by defense counsel, the court found the factors cited by the prosecution true and imposed the upper term on the firearm enhancement. This was error.

Section 1170.1(d)(2) permits a trial court to impose the upper term for a sentencing enhancement only when there are circumstances in aggravation 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 1170.1(d)(2)

Second 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. On this record, we cannot say the error was harmless beyond a reasonable doubt.

Authority:

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

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

Third Holding:

The District Attorney failed to allege any aggravating circumstances against the defendant in the information. The prosecutor merely argued that the evidence supported aggravating facts that she described for the first time at the sentencing hearing.

These aggravating circumstances—the offense was committed with planning, sophistication, and professionalism, and it was coldhearted, ruthless, and committed with disregard for human life—rest on a subjective standard, making it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

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