Tag Archives: Excessive punishment

Eighth Amendment, Equal protection, Plea bargains, Probation Parole PRCS, Sentencing

Case 001044

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 16 months in jail as a condition of probation. The matter must be remanded for resentencing, and for the court to determine the issue of the amount of the restitution fine in light of Kopp.

First Holding:

The trial court imposed a jail term of 16 months as a condition of probation because he had missed his appointment with his probation officer and failed to appear at the sentencing hearing. However, section 19.2 provides that, except in situations not here relevant, in no case shall any person sentenced to confinement in a county or city jail, as a condition of probation upon conviction of either a felony or a misdemeanor, be committed for a period in excess of one year.

Authority:

PEN 19.2

Second Holding:

Although Bailey held that the one-year limit may be waived by the defendant, Bailey is distinguishable because the defendant Bailey entered a knowing and intelligent waiver. There is no evidence here that the defendant was informed of the 12-month limit under section 19.2, and his agreement to the longer term was therefore not a knowing and intelligent waiver.

Authority:

People v. Bailey (1983) 140 Cal.App.3d 828, 831

People v. Arnold (2004) 33 Cal.4th 294, 308 [regarding waiver of credit for time served, the gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5]

People v. Sivongxxay (2017) 3 Cal.5th 151, 166 [criminal defendant’s waiver of right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it]

Third Holding:

On remand, the defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state constitutions. As to ancillary costs, if requested by the defendat, the trial court shall consider his inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1), allowing the parties to present any relevant evidence or argument on the matter.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 30-31

Amelioration, Eighth Amendment, Juveniles, Probation Parole PRCS, Sentencing

Case 001031

Posted on by Gary McCurdy

Error and/or relief

A sentence of more than 72 years to life plus two life terms imposed in 1995 on a 16-year-old minor is the functional equivalent of life without the possibility of parole. The trial court erred in denying the defendant’s motion for resentencing under section 1170(d)(1).

If the court resentences, the court must then consider whether to transfer the case back to juvenile court for a transfer hearing to determine whether the matter should be retained under juvenile court jurisdiction or transferred back to adult court, applying Proposition 57.

First Holding:

Section 1170(d)(1) allows juvenile offenders to petition for recall and resentencing after 15 years of incarceration if they were sentenced to life without the possibility of parole (LWOP).

Authority:

PEN 1170(d)(1)

Second Holding:

A sentence of 72 years eight months to life, plus two life sentences is the functional equivalent of an LWOP sentence, and therefore, the defendant is eligible for resentencing under equal protection principles. As the two life sentences carry a minimum of seven years on each, the effective sentence in this matter is more than 86 years to life. Under that sentence, the defendant would not be released before he reached 102 years of age.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608

People v. Sorto (2024) 104 Cal.App.5th 435

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056

People v. Mendez (2010) 188 Cal.App.4th 47, 50, 68 [sentence of 84 years to life was the equivalent of LWOP and constituted cruel and unusual punishment]

People v. Franklin (2016) 63 Cal.4th 261, 273 [under sec. 3046, where two indeterminate sentences run consecutively, a defendant must serve the full minimum term of each before becoming eligible for parole]

Third Holding:

A petition under section 1170(d)(1) must include a statement describing the defendant’s remorse, work toward rehabilitation, and a statement that one of four qualifying circumstances is true.

The four qualifying circumstances under section 1170(d)(2), are:

(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.

(B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.

(C) The defendant committed the offense with at least one adult codefendant.

(D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

Authority:

PEN 1170(d)(2)

Fourth Holding:

Recall and resentencing entitles eligible defendants to the benefits of retroactive ameliorative changes to the law, such as Proposition 57, which eliminated the prosecution’s right to file charges for eligible crimes against a minor directly in adult court without a fitness or transfer hearing.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 449

People v. Montes (2021) 70 Cal.App.5th 35, 48-49 [ordering superior court to transfer case to juvenile court to hold hearing under Prop. 57 where court had recalled LWOP sentence under sec. 1170(d)(1) for a defendant who had committed crimes when he was 17 years old]

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304, 309 [Proposition 57 constituted an ameliorative change to the criminal law, and therefore, it applies retroactively to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.]

People v. Padilla (2022) 13 Cal.5th 152, 161-162 [once a superior court recalls a sentence, it becomes nonfinal, and Proposition 57 applies retroactively]

People v. Ramirez (2021) 71 Cal.App.5th 971, 996 [because sentence was vacated under (what is now section 1172.6), defendant’s sentence became nonfinal for purposes of Proposition 57]

Fifth Holding:

In Graham, the United States Supreme Court held that the Eighth Amendment bars the imposition of an LWOP sentence for a juvenile offender who did not commit a homicide.

In Miller, the United States Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders. In sentencing a juvenile homicide offender the trial court must have the ability to impose a sentence less than LWOP after taking into account youth-related factors and whether the offender may be rehabilitated.

Tha California Supreme Court in Caballero applied the holding in Graham to a 110 years-to-life sentence, describing the sentence as a term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.

Authority:

Graham v. Florida (2010) 560 U.S. 48, 82

Miller v. Alabama, 567 U.S. 460, 465, 477

People v. Caballero (2012) 55 Cal.4th 262, 265, 267-268

Sixth Holding:

In Contreras, the California Supreme Court considered whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender’s natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.

The Contreras court concluded that sentences of 50 years or more to life for juvenile nonhomicide offenders were the functional equivalent of LWOP sentences for purposes of the Eighth Amendment because, as contemplated by Graham:

(1) confinement with no possibility of release until age 66 or age 74 seems unlikely to allow for reintegration into society;

(2) a juvenile offender who has no chance to leave prison for 50 years has little incentive to become a responsible individual;

(3) a 50-years-to-life sentence, though less harsh than LWOP, is still an especially harsh punishment for a juvenile, who will on average serve more years and a greater percentage of his life in prison than an adult offender;

(4) Graham’s observation that juveniles have limited ability to consider consequences when making decisions applies to a sentence of 50 years to life just as it does to a sentence of LWOP; and

(5) a judgment that a juvenile offender will be incorrigible for the next 50 years is no less questionable than a judgment that the juvenile offender will be incorrigible forever.

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 356, 364

Seventh Holding:

By leaving section 1170(d)(1) in place after enacting section 3051 (which sets up a scheme of parole eligibility consideration for juvenile and young offenders), the Legislature has signaled its preference for section 1170(d)(1) to persist rather than to be stricken, thereby ensuring section 1170(d)(1) provides relief in addition to the relief provided by section 3051.

Authority:

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1063

Eighth Amendment, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 23

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that four factors are relevant to determining whether a fine is unconstitutionally excessive:

(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and

(4) the defendant’s ability to pay.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Eighth Amendment, Equal protection, Sentencing

Case 000895

Posted on by Gary McCurdy

Error and/or relief

We remand solely as to the fines and ancillary costs ordered in this case on appeal.

First Holding:

Kopp allows challenges based on the excessive fines and equal protection clauses of the federal or state Constitutions.

Authority:

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

Second Holding:

Kopp addresses the proper means by which a criminal defendant may challenge the various court ordered payments imposed at criminal sentencings. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution. As to fines, such as restitution and parole revocation payments under Penal Code sections 1202.4 and 1202.45, there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines under either the federal or state Constitutions.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 17, 23

Third Holding:

As to ancillary costs, under Penal Code section 1465.8 and Government Code section 70373, Kopp explains an equal protection analysis is appropriate and holds that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

(Gary note: This stems from the recognition that in civil cases, the same fees are due, but the superior court may waive them for civil litigants. Kopp concludes that criminal defendants must be given the same consideration, as there is no legitimate reason to discriminate between civil cases and criminal cases for administrative assessments that go toward support of the court system and are not punitive in nature.)

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]