Tag Archives: Enhancements

Sentencing

Case 000592

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in treating three prior serious felonies separately though they were not brought and tried separately. Remanded for full resentencing.

First Holding:

Section 667(a) provides for a separate five-year sentence enhancement for every prior serious felony conviction on charges brought and tried separately. Where multiple charges were not brought separately, but were made in a single complaint, the court can only impose a single five-year enhancement for the multiple charges. The question whether prior convictions were brought and tried separately is for the court to decide, not the jury.

Authority:

In re Harris (1989) 49 Cal.3d 131, 136-137

People v. Jones (2015) 236 Cal.App.4th 1411, 1415-1416

Second Holding:

Given that the court rested its sentencing decisions on a mistaken understanding of the law, defendant is entitled to a full resentencing.

Authority:

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000572

Posted on by Gary McCurdy

Error and/or relief

The gang and gang-related firearm enhancements must be vacated in light of the amendments under AB 333.

First Holding:

AB 333, which amended section 186.22, was enacted in 2021 and became effective on January 1, 2022. The amendments AB 333 made to section 186.22 apply retroactively to the defendant’s case. The substantive amendments to section 186.22 require us to vacate the jury’s findings on the gang allegations and gang-related firearm allegations. We remand the matter to afford the prosecution the opportunity to retry these allegations, should it choose to do so.

Authority:

PEN 186.22

People v. Burgos (2024) 16 Cal.5th 1, 7

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

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

Second Holding:

AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

PEN 186.22

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

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Third Holding:

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. On this record, reversal of the gang enhancements is required, and the prosecution must be given the opportunity to establish the additional elements on remand, should it choose to do so.

Authority:

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

People v. Eagle (2016) 246 Cal.App.4th 275, 280

Fourth Holding:

In addition to amending section 186.22, AB 333 added section 1109, which requires that the trial of a gang enhancement charged under section 186.22(b), be bifurcated from and follow trial of the underlying offenses when requested by the defendant. AB 333’s enactment of section 1109 became effective almost two years after defendant’s trial. But section 1109 is not retroactive and therefore does not apply.

Authority:

PEN 1109

People v. Ramos (2022) 77 Cal.App.5th 1116, 1129 [disapproved of on other grounds in People v. Burgos (2024) 16 Cal.5th 1, at p. 31]

People v. Burgos (2024) 16 Cal.5th 1, 9

Fifth Holding:

The same rationale applies to the jury’s findings on the section 12022.53(e)(1) firearm allegations, which require findings under section 186.22(b). Section 12022.53(e)(1) provides for enhanced firearm penalties for any person who is a principal in the commission of an offense if the prosecution pleads and proves that (1) the person violated section 186.22(b), and (2) any principal in the offense committed a firearm violation specified in section 12022.53(b), (c), or (d).

Here, the jury found three section 12022.53(e)(1) allegations true as to the defendant. Because this enhancement depends on a finding pursuant to section 186.22(b), the changes to section 186.22 made by AB 333 require that the true findings on these allegations also be vacated and the matter remanded to the trial court.

Authority:

PEN 12022.53(e)(1)

People v. Lopez (2021) 73 Cal.App.5th 327, 346-348

Sentencing

Case 000566

Posted on by Gary McCurdy

Error and/or relief

It was error to rely on the same facts to impose an enhancement and the upper term.

First Holding:

Generally, error occurs when the same facts are considered both to aggravate the base term and to impose an enhancement.

Authority:

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]

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

Second Holding:

Where there is an improper dual or overlapping use of facts, remand is required if it is reasonably probable the defendant would obtain a more favorable result absent the error.

Authority:

People v. Barker (1986) 182 Cal.App.3d 921, 941

Third Holding:

A trial court may impose an upper term sentence based on a single, properly proven aggravating circumstance only, if, in the court’s discretion, that circumstance alone justifies a sentence exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 764

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Discretion, Sentencing

Case 000505

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence, and we remand for the trial court to hold a new sentencing hearing, at which it shall consider whether to exercise its discretion under section 1385 to dismiss the one-year enhancement it imposed under section 12022(b)(1).

First Holding:

During the sentencing of the defendant for second degree murder in which it was found true that he used a knife, the court stated it had no discretion to dismiss the enhancement allegation. Section 1385 governs a trial court’s discretion to dismiss an enhancement. Specifically section 1385(c)(1) states 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. In exercising its discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. 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.

Under section 1385(a), if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.) One enumerated mitigating circumstance is that the current offense is connected to mental illness. The defendant identifies that circumstance as potentially applicable here in light of information developed during the mental competency proceedings in this matter.

Authority:

PEN 1385

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

Second Holding:

The record establishes the trial court was not aware of its discretion under section 1385 to dismiss the weapon enhancement. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is not aware 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. Where the trial court was not aware of its discretion to dismiss a sentencing allegation under section 1385, it abuses its discretion. We accordingly conclude the trial court abused its discretion because it was not aware of its discretion to dismiss the weapon enhancement.

Authority:

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

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

Third Holding:

When a court has not exercised its informed discretion, remand is the default 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. Here, we find no indication in the record as to how the trial court would have exercised its discretion had it known it had the discretion to dismiss the enhancement. We will therefore remand for the trial court to exercise its discretion under section 1385 regarding the weapon enhancement imposed under section 12022(b)(1).

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431