Tag Archives: Excessive punishment

Eighth Amendment, Fines and fees, Sentencing

Case 000820

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering defendant to pay ancillary costs and to reimburse the police department for the SART [Sexual Assault Response Team] examination costs without considering his ability to pay and while the amount of victim reimbursement had yet to be determined. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

Because defendant did not obtain a certificate of probable cause, our review is limited to issues occurring after entry of the plea that do not affect its validity.

Authority:

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)(3)

People v. Mendez (1999) 19 Cal.4th 1084, 1096

Second Holding:

While this appeal was pending, our Supreme Court decided Kopp, which held that (1) a defendant may challenge the imposition of a punitive fine (e.g., restitution fines under Penal Code section 1202.4) under the excessive fines provisions of the United States and California Constitutions; and (2) equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing ancillary costs (e.g., court facilities fees under Government Code section 70373 and court operations fees under section 1465.8).

Because defendant did not have the benefit of Kopp’s specific reasoning at the time of his sentencing, we conclude he must be afforded the opportunity to assert an excessive fine objection and develop a factual record on the considerations relevant to that claim.

Authority:

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

Third Holding:

The touchstone of the excessive fines inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.

Four considerations inform that inquiry: (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.

Authority:

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

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

Fourth Holding:

As for the $30 court operations fee and the $40 court facilities fee, Kopp held that, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing ancillary costs in criminal cases.

Authority:

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

Fifth Holding:

Here, the trial court erroneously denied defense counsel’s request for an ability to pay hearing. Although some courts have found such error harmless where the record otherwise reflects the defendant’s earning capacity, we decline to do so here, as the People do not contend the record is sufficient to make such a determination in this case.

Furthermore, an ability to pay hearing is also required under section 1203.1h [regarding the cost of medical examinations incurred by law enforcement for the collection and preservation of evidence in sexual assault cases].

Authority:

PEN 1203.1h(b)

People v. Aviles (2019) 39 Cal.App.5th 1055, 1075–1077

People v. Johnson (2019) 35 Cal.App.5th 134, 139–140

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

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

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Amelioration, Plea bargains, Sentencing

Case 000792

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1170(d), because (a) it incorrectly concluded that section 1171 barred resentencing where the original sentence was agreed on by the parties, and (b) it incorrectly believed that the parties had originally agreed to the sentence imposed. Reversed and remanded.

Because the trial court did not consider whether, despite the availability of youthful offender parole, the defendant’s determinate sentence is a de facto LWOP sentence, we leave that issue for the trial court to consider in the first instance.

First Holding:

Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

The statute then provides that a plea bargain may not be rescinded based upon such modification: Any change to a sentence shall not be basis for a prosecutor or court to rescind a plea agreement. Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement

Authority:

PEN 1171(a), (c)(2) and (c)(3)

Second Holding:

Section 1170(d), under certain circumstances, provides for the recall and resentencing of juvenile offenders [who were tried as adults] with LWOP sentences.

(Gary note: without citation to published authority directly discussing this point, the unpublished opinion concludes that the use of the term “life without the possibility of parole” in section 1170(d) does not mention any specific statutes imposing LWOP sentences, such as section 190.5.

(This court infers from that lack of specificity that the Legislature must have intended that section 1170(d) apply whenever a candidate has received a sentence that, effectively, precludes parole in his or her lifetime. In other words, this unpublished opinion’s reasoning on this point is that section 1170(d), by its very terms, contemplates both express LWOP sentences and de facto LWOP sentences (sentences whose terms cannot be completed within a reasonable lifetime).

(The court states, “Thus, the Legislature appears to have intended section 1170(d) to be interpreted in a practical rather than technical manner to apply not only to formal LWOP sentences but also to de facto LWOP sentences that effectively render a juvenile offender ineligible for parole before they are expected to die.”

(Keep in mind that my description of this part of the holding is placed in a bracketed “Gary note,” and I may be oversimplifying and even misstating the court’s reasoning on this point. I simply thought it was an interesting approach that may prove useful.

(Also, the county’s District Attorney “invited” the Supreme Court to grant review on its own motion.  I suspect it is because the Attorney General actually represented the People in this appeal, and the DA would have had no standing to file a petition for review.  The Supreme Court has granted itself to a date in October 2026 to decide whether to grant review on its own motion.

(UPDATE OCTOBER 21, 2026:  The Supreme Court granted and held review on this case in September 2026.  “The court ordered briefing deferred pending decision in [another Supreme Court case already granted review], which presents the following issue: Is a juvenile homicide offender sentenced to 50 years to life in prison entitled to recall and resentencing under Penal Code section 1170, subdivision (d)(1) on the ground that the sentence is the functional equivalent of life imprisonment without parole?”

(I will try to follow that lead case and this case, and update when there is resolution.  I have signed up for notification on both the Court of Appeal case and the Supreme Court case once they are resolved.

(The issue on review in that other case pertains solely to functional equivalence of life without parole, and does not seem to address any impact of section 1170.1.)

Authority:

PEN 1170(d)(5)

Third Holding:

A practical interpretation of section 1170(d) is also supported by constitutional considerations. At least four Court of Appeal decisions have held that restricting resentencing under Section 1170(d) to juvenile offenders with formal LWOP sentences is irrational and violates equal protection, though others have disagreed.

Authority:

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Sorto (2024) 104 Cal.App.5th 435, 450-454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061

People v. Heard (2022) 83 Cal.App.5th 608, 631-634

Contra: People v. Baldwin (2025) 113 Cal.App.5th 978, 1002-1006

Contra: People v. Thompson (2025) 112 Cal.App.5th 1058, 1075-1081, review granted Sept. 24, 2025, S292540

Fourth Holding:

Nonetheless, interpreting section 1170(d) to be limited to formal LWOP sentences plainly raises a serious constitutional question, and it is well-established that statutes should be construed to avoid constitutional questions where they are reasonably susceptible to a reasonable alternative interpretation that do not raise such questions. Accordingly, we conclude that section 1170(d) should be interpreted to apply to de facto as well as formal LWOP sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 862 [If a statute is susceptible of two constructions, one of which will raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it free from doubt as to its constitutionality.]

People v. Miracle (2018) 6 Cal.5th 318, 339 [A statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.]

Fifth Holding:

The trial court held that the defendant was not serving a de facto LWOP sentence because he is eligible for youthful offender parole under section 3051 and, in fact, already has received a youthful offender parole hearing. We disagree. Youthful offender parole is available to all juvenile offenders with LWOP sentences, whether formal or not.

Moreover, the Legislature extended youthful offender parole hearings to juvenile offenders with LWOP sentences in 2017, five years after enacting section 1170(d). In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under section 1170(d), and, as the Supreme Court has long recognized, absent an express declaration of legislative intent, we will find an implied repeal only when there is no rational basis for harmonizing the two potentially conflicting statutes.

Accordingly, in determining whether an individual was sentenced to imprisonment for life without the possibility of parole under section 1170(d), youthful offender parole should be disregarded.

Authority:

PEN 3051(b)(4)

People v. Hardin (2024) 15 Cal.5th 834, 845

Garris v. McCutchen (1997) 16 Cal.4th 469, 477

People v. Sorto (2024) 104 Cal.App.5th 435, 447-448

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000763

Posted on by Gary McCurdy

Error and/or relief

The court erred in declining to determine the defendant’s ability to pay fines and fees. Its stated basis was the probation office’s strong stance on rejecting the plea, based on the victim. After sentencing, the Supreme Court issued its decision in Kopp.

First Holding:

A defendant may challenge the imposition of a punitive fine under the United States and California Constitutions’ excessive fines provisions. The California Supreme Court The court used the “fine” term to refer to penalties provided by the Legislature to punish a criminal offense and included restitution fines and parole revocation restitution fines within that category. Because its decision was issued after the defendant was sentenced, the defendant should be given the opportunity to develop an excessive fines argument in the first instance on remand.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23, 30-31

Eighth Amendment to the United States Constitution [Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted]

Article I, section 17 of the California Constitution [Cruel or unusual punishment may not be inflicted or excessive fines imposed.]

Second Holding:

Because the trial court failed to consider the defendant’s ability to pay the the court operations and court facilities assessments despite his request, we must remand for such consideration. Because there is no rational basis for distinguishing criminal defendants from indigent civil litigants—who are afforded waivers for similar assessments—equal protection principles require the trial court to consider a defendant’s inability to pay before imposing these ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 14-15, 24-31

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000733

Posted on by Gary McCurdy

Error and/or relief

We strike the protective order, because none of the offenses involved domestic violence. We also remand to give the defendant the opportunity to present evidence on his ability to pay the restitution fine and assessments.

First Holding:

Although initially charged with crimes involving domestic violence, his guilty plea was to a crime that did not involved domestic violence as defined in section 13700 or in Family Code section 6211. His crime is not specifically listed in section 136.2(i)(1), and it does not require registration as a sex offender. Hence, the trial court was without authority at sentencing to issue the criminal protective order for the victim’s benefit under section 136.2(i)(1). As the court did not have statutory authority to issue the criminal protective order, it must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

The court imposed a $2,400 restitution fine, as well as a $2,400 parole revocation fine pursuant to section 1202.45. The court also imposed a $40 court operations assessment (sec. 1465.8(a)(1)) and a $30 court facilities assessment (Gov. Code, sec. 70373(a)(1)).

After sentencing, while this matter was still on appeal, the Supreme Court issued its opinion in Kopp. As to punitive fines, including restitution fines, the court found that due process does not require a trial court to hold an ability to pay hearing before imposing every punitive fine.

However, the court also noted that both the federal and state Constitutions prohibit excessive fines, and held that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

As to court operations assessments and court facilities assessments, which are ancillary costs, the court held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment.

Because neither defendant nor the trial court had the benefit of Kopp’s reasoning and holding at the time of the sentencing hearing, we will direct the court to give defendant an opportunity to challenge the restitution fine and the assessments under Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13, 23, 30