Tag Archives: Forfeiture

Elements of crime, Fifth Amendment, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case: 000306

Posted on by Gary McCurdy

Error and/or relief

The evidence to support the alleged use of a deadly weapon is insufficient as a matter of law. The minor was alleged to have committed robbery with the use of a deadly or dangerous weapon (knife).

First Holding:

Section 12022(b)(1) allows a defendant’s sentence to be enhanced if he or she personally used a deadly or dangerous weapon during a felony. To prove use, the evidence must show something more than merely being armed. Intentionally displaying a weapon in a menacing manner qualifies. When a defendant deliberately shows a weapon or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the fact finder is entitled to find a facilitative use rather than an incidental or inadvertent exposure. But the use enhancement is not applicable if the evidence shows that the defendant’s conduct with respect to the weapon appears to be purely incidental to the crime, or if the defendant did no more than passively display the weapon.

Authority:

People v. Chambers (1972) 7 Cal.3d 666, 672

People v. Wims (1995) 10 Cal.4th 293, 302

People v. Granado (1996) 49 Cal.App.4th 317, 325

People v. Hays (1983) 147 Cal.App.3d 534, 548–549

Second Holding:

To determine whether the defendant used a knife for purposes of section 12022(b)(1), we may properly consult cases construing the term uses in other enhancement statutes, including cases involving the personal use of a firearm. But in doing so, we are mindful that unlike a firearm, a knife can be, and usually is, used for innocent purposes, and for that reason is not among the few objects that are inherently deadly weapons.

Authority:

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1198, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216

People v. Aledamat (2019) 8 Cal.5th 1, 6

Third Holding:

In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 59–60

Fourth Holding:

On a claim of insufficiency of the evidence, we consider the record evidence, not how a trial court might have responded to a timely objection.

Authority:

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

In re I.A. (2020) 48 Cal.App.5th 767, 776 [No objection is necessary to preserve a challenge to the sufficiency of the evidence for appeal]

People v. Hiller (2023) 91 Cal.App.5th 335, 345 [a challenge to the sufficiency of the evidence is generally not subject to forfeiture]

Fifth Holding:

Reversal of the use enhancement for insufficiency of the evidence bars retrial of the enhancement.

Authority:

Tibbs v. Florida (1982) 457 U.S. 31, 42

People v. Eroshevich (2014) 60 Cal.4th 583, 591

Amelioration, Plea bargains, Sentencing

Case: 000282

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed an upper term sentence without an appropriate factual finding or stipulation as to an aggravating factor, as required by Penal Code section 1170(b). We conclude that the defendant may raise this issue even though he stipulated to the sentence as part of a plea bargain.

First Holding:

When the defendant entered his plea in 2020, the choice to impose a lower, middle, or upper term sentence was committed to the sound discretion of the court. But when the court ultimately entered judgment in 2024, following the passage of SB 567, a trial court was permitted to impose an upper term sentence only when aggravating 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. The defendant argues that, although he agreed to the sentence in his plea agreement, the change in the law renders his agreement to an upper term sentence invalid in the absence of an appropriate finding of or stipulation to aggravating circumstances. The circumstances in French differ from those here in potentially meaningful ways. Nonetheless, in light of the significant uncertainty in this area and the potential Sixth Amendment implications, we deem it appropriate to exercise our discretion to reach the merits of the defendant’s arguments.

Authority:

PEN 1170

People v. French (2008) 43 Cal.4th 36 [defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances]

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326–327 [exercising discretion to forgive forfeiture because the application of amended section 1170, subdivision (b) implicates a constitutional right, as recognized in People v. Lynch (2024) 16 Cal.5th 730]

Second Holding:

With respect to the merits, the People argue that because the defendant agreed to a specific term of imprisonment as part of his plea bargain, section 1170(b)’s sentencing procedures are irrelevant. As we have noted, this issue has been addressed in multiple Court of Appeal decisions and is now before the Supreme Court. We therefore dispense with offering significant additional analysis, except to say we are persuaded by the logic of the courts that have allowed defendants subject to stipulated sentences to seek the benefits of Senate Bill 567. Among other things, we think this best comports with Stamps, which is the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence.

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted February 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted April 26, 2023, S279154 [same]

People v. Stamps (2020) 9 Cal.5th 685

Third Holding:

In keeping with Stamps, if the defendant waives the requirements of amended section 1170(b), the trial court shall reinstate his original sentence. If he invokes the requirements of section 1170(b), he must state whether he stipulates to the facts underlying an aggravating circumstance justifying the imposition of the upper term on count 1 and the enhancement, or whether he desires a jury or bench trial on any aggravating circumstances alleged by the People. If he stipulates to the facts underlying an aggravating circumstance justifying the upper-term sentence, the trial court shall find that the upper term may be imposed on count 1. If he requests a trial, the People will have the burden proving beyond a reasonable doubt the truth of any alleged aggravating circumstance justifying the imposition of the upper term. If the factfinder finds an aggravating circumstance true, and the trial court determines the upper term can be imposed on count 1, the court shall reinstate the original sentence. If the People fail to prove the truth of an aggravating circumstance, the trial court shall find that the sentence on count 1 cannot exceed the middle term. At that point, if the court does not approve of the plea agreement with the reduced sentence or if the People do not agree to the reduced sentence, the court shall vacate the plea in toto and return the parties to their status quo ante.

Authority:

People v. Stamps (2020) 9 Cal.5th 685

(Gary note: Is Stamps still good law? Effective 1/1/2025, section 1171 was enacted to give courts guides on how to handle various amerliorative statutes. Take a look at 1171(c)(3) in this partial rendition of section 1171 (bold and italics by me):

(Penal Code section 1171[(a) For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
(…
((c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
(…
((e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
((f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.)

Duty of the court, Juveniles

Case: 000281

Posted on by Gary McCurdy

Error and/or relief

The case must be remanded for the juvenile court to declare the four offenses misdemeanors or felonies as required by Welfare and Institutions Code section 702.

First Holding:

Crimes punishable as either a misdemeanor or a felony at the discretion of the sentencing court are known as wobblers.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704

Second Holding:

If a minor commits a wobbler, the court shall declare the offense to be a misdemeanor or felony. The juvenile court must make this declaration at a hearing so the record expressly reflects the court was “‘aware of, and exercised its discretion’” to treat the offense as either a misdemeanor or a felony.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 705

Third Holding:

Neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court. Absent a juvenile court’s express declaration, or other record evidence establishing, it was aware of and exercised its discretion, the matter must be remanded for the requisite declaration to be made.

Authority:

In re Manzy W. (1997) 14 Cal.4th 1199, 1208-1209

Fourth Holding:

Fourth Holding:
A claim of section 702 error is not forfeited by the defense’s failure to object in the juvenile court.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710-711

Fifth Holding:

We generally review sentencing decisions for abuse of discretion. A court abuses its discretion when its decision is arbitrary or capricious or exceeds the bounds of reason under the circumstances. A failure to exercise discretion also may constitute an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847-848

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First Holding:

The court may impose a sentence exceeding the middle term only when 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. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

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]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

The trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial. This jury trial right is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

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

Erlinger v. United States (2024) 602 U.S. 821

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 46

Amelioration, Jurisdiction, Sentencing

Case: 000264

Posted on by Gary McCurdy

Error and/or relief

On remand from a grant of habeas corpus reversing the conviction of attempt murder, it was error for the court to simply strike the punishment attached to that reversed count and fail to conduct a full resentencing. The trial court did not explicitly state it was recalling the defendant’s sentence under section 1172.1. However, the court’s actions at the 2023 hearing make clear that it did.

First Holding:

Courts generally lack jurisdiction to modify a defendant’s sentence once execution of the sentence has begun. Section 1172.1 provides an exception to that general rule. It states a trial court may, at any time upon the recommendation of the secretary of the CDCR or the district attorney, recall a defendant’s sentence and resentence the defendant in the same manner as if they had not previously been sentenced. When resentencing a defendant under section 1172.1, the trial court must consider postconviction factors and apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PC 1172.1

People v. Karaman (1992) 4 Cal.4th 335, 344 [Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced]

People v. King (2022) 77 Cal.App.5th 629, 636–637

Second Holding:

After announcing the People were conceding the defendant’s motion for recall and resentencing, the court granted the prosecutor’s motion to dismiss the gang allegation under section 1385. Assuming the defendant’s judgment of conviction was final at the start of the hearing—as the trial court believed it to be—the court had authority to grant the People’s motion only if it first recalled the defendant’s sentence. In other words, the fact that the trial court granted the People’s motion to dismiss shows it first recalled the defendant’s sentence under section 1172.1

Authority:

PEN 1170.1

PEN 1385

People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8

People v. Kim (2012) 212 Cal.App.4th 117, 123

People v. Sek (2022) 74 Cal.App.5th 657, 666–667 [Assembly Bill 333 applies retroactively only to cases that are not yet final]

Third Holding:

By recalling the defendant’s sentence, the trial court effectively vacated the entire judgment, not just the portion related to the gang allegation. Therefore, the court was required to resentence the defendant on each count and enhancement in the same manner as if he had not previously been sentenced. The court also was required to apply changes in the law since the original sentencing.

Authority:

PEN 1172.1

People v. Arias (2020) 52 Cal.App.5th 213, 219 [the recall of appellant’s sentence effectively vacated his original sentence and commitment]

People v. Rogers (2025) 108 Cal.App.5th 340, 360 [recall of a defendant’s sentence nullifies the original sentence]

People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [the “full sentencing rule” applies when a court recalls a sentence under former section 1170(d), a predecessor to section 1172.1]

Fourth Holding:

The court dismissed the gang allegation, but it did not orally pronounce a sentence on the murder conviction or the firearm enhancement, even by reference to the original sentence. Nor is there any indication that the court applied the changes to the law since the original sentencing.

Authority:

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement]

People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 532 [at sentencing, the court must orally pronounce the term of imprisonment]

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [trial court erred by failing to pronounce sentence on a count before staying its execution]

Fifth Holding:

The defendant did not forfeit his right to a full resentencing by failing to raise the issue in the trial court. Generally, a defendant must raise an issue in the trial court to preserve it on appeal. However, that general rule does not apply to an unauthorized sentence, which a defendant may challenge on appeal despite not objecting below. Here, the trial court recalled the defendant’s sentence, which effectively vacated his entire sentence. However, it never pronounced a new sentence on the murder conviction and firearm enhancement. The court’s failure to do so resulted in an unauthorized sentence.

Authority:

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

People v. Arias (2020) 52 Cal.App.5th 213, 219

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court committed unauthorized sentencing error by failing to pronounce a sentence on a count before ordering it stayed]

Sixth Holding:

Even if the forfeiture rule applied, we would exercise our discretion to consider the issue on the merits in order to forestall an inevitable ineffective assistance of counsel claim.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts have discretion to consider issues not preserved for review]

People v. Monroe (2022) 85 Cal.App.5th 393, 399–400 [declining to apply forfeiture rule where defendant failed to object to the lack of full resentencing under section 1172.75]

Seventh Holding:

Where, as here, the defendant did not receive a full resentencing to which he was entitled, the proper disposition is to remand for a full resentencing. Accordingly, we remand the case for the trial court to resentence the defendant in accordance with section 1172.1. In doing so, the court must consider postconviction factors and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. When resentencing the defendant on remand, the court may not reinstate the gang allegation it dismissed under section 1385.

Authority:

PEN 1172.1

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remanding case for resentencing where the defendant was entitled to, but did not receive, a full resentencing under section 1172.75]

People v. Saldana (2023) 97 Cal.App.5th 1270, 1278–1279 [same]

People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing]

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The court may impose a sentence exceeding the middle term only when 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

Third Holding:

Under the Sixth Amendment 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. Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Under the current version of section 1170(b)(2), 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.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

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

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

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

Appellate Principles, Sentencing

Case: 000223

Posted on by Gary McCurdy

Error and/or relief

Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.

First Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 751

Second Holding:

In contrast to errors in exercising sentencing discretion, the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3

Third Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226–1227

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Abstracts and Minutes, Discretion, Duty of the court, Sentencing

Case: 000220

Posted on by Gary McCurdy

Error and/or relief

The defendant must be resentenced in light of enhancement-related errors and that the minute order from the bench trial on the defendant’s prior convictions requires correction. Therefore, we remand for resentencing and direct the minute order to be corrected.

First Holding:

Several of the errors raised involve the trial court’s exercise of discretion and were forfeited by the defendant’s failure to object below. Nonetheless, we have doubts about whether the trial court in fact exercised its discretion in failing to impose certain enhancements and making other sentencing choices, especially given discrepancies between the court’s tentative sentences and its final sentences. There also appears to be at least one error resulting in an unauthorized sentence that the parties do not raise. Under these circumstances, we find it appropriate to remand for both defendants to be fully resentenced so that the court can ensure the sentences reflect its intent in accordance with the law.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

In re G.C. (2020) 8 Cal.5th 1119, 1130

Second Holding:

Weapon enhancements must be either imposed consecutively or stricken. Such an enhancement cannot be imposed concurrently.

Authority:

PEN 1385

PEN 12022

Third Holding:

Unless stricken, prior-serious-felony and prior-prison-term enhancements are added once to each count on which an indeterminate term is imposed and once for the combined counts on which an aggregate determinate term has been imposed.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1141

People v. Minifie (2018) 22 Cal.App.5th 1256, 1260

Fourth Holding:

A sentencing court may not impose terms for both a prior-serious-felony enhancement and a prior-prison-term enhancement that are based on the same underlying conviction.

Authority:

People v. Scully (2021) 11 Cal.5th 542, 612

Fifth Holding:

If a prior-conviction enhancement or punishment for it is stricken in the interest of justice, the enhancement should not also be imposed and stayed under section 654.

Authority:

People v. Tang (2025) 109 Cal.App.5th 1003, 1008–1009

Sixth Holding:

The trial court should ensure that it sufficiently explains its discretionary sentencing choices on the record.

Authority:

Rules of Court, rule 4.406

Seventh Holding:

There were several errors in the minute order that must be corrected.

[Gary note: The court did not cite any authority for its directive that the abstract be corrected, but the law is very clear that it has that authority. I have cited some cases that the court could have relied on.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. 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.

Authority:

PEN 1170b)(1)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply Chapman. Such errors are 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. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Abstracts and Minutes, Duty of counsel, Sentencing

Case: 000161

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to accurately reflect the sentence orally imposed by the court. Here, the abstract incorrectly states that the court imposed an enhancement term of 25 years to life for gang-related firearm enhancements. In fact, those enhancements were not retried; they both must be stricken from the abstract. The abstract also incorrectly states that the enhancement imposed and stayed on count 3 was imposed under both subdivisions (d) and (e)(1) of section 12022.53.

First Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

A defendant who fails to object before the trial court to a sentence on the ground that it is being imposed in a procedurally or factually flawed manner generally forfeits the right to challenge such error on appeal. The objections must be specifically articulated, to provide the trial court with a meaningful opportunity to evaluate the claims and correct any errors. Appellant did not object when the court stated its reasons for imposing consecutive sentences, nor did he object when given the opportunity to do so at the conclusion of the hearing. We accordingly find these arguments forfeited.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710

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

People v. De Soto (1997) 54 Cal.App.4th 1, 9

Appellate Principles, Sentencing, Sixth Amendment

Case: 000152

Posted on by Gary McCurdy

Error and/or relief

The sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error was prejudicial.

First Holding:

The sentencing court’s erroneous reliance on the vulnerable victim circumstance requires reversal and remand for resentencing. Section 1170(b)(2) states that the court may only sentence a defendant to the upper term based on aggravating circumstances the defendant stipulates to or that are found true beyond a reasonable doubt at trial. The error prejudiced the defendant because the trial court relied on the vulnerable victim aggravating circumstance in selecting a sentence.

Authority:

PEN 1170(b)(2)

Cunningham v. California (2007) 549 U.S. 270, 281 [Under the Sixth Amendment 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.]

Erlinger v. United States (2024) 602 U.S. 821, 834 [Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

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.

Authority:

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

Third Holding:

Because it constitutes a violation of the Sixth Amendment, the matter must be remanded for resentencing unless the error was harmless beyond a reasonable doubt. 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.

Authority:

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

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

Fourth Holding:

Though generally, claims–including those involving a court’s failure to properly make or articulate its discretionary sentencing choices–not raised in the trial court may not be raised for the first time on appeal, an appellate court has the authority to decline to apply the forfeiture rule.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 [Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim.]

Fifth Holding:

The prosecution elected not to proceed on the vulnerable victim allegation, and thus the defendant had no occasion to bring any evidence contesting this alleged aggravating circumstance. The prosecution introduced no proof relevant to this aggravating circumstance other than the disparity in age between him and the victim and the church setting. In this situation, we cannot conclude beyond a reasonable doubt that the trial court as factfinder would have found the vulnerable victim aggravating circumstance true.

For sentences imposed under the former law the record must clearly indicate that the court would have found an upper term justified had it been aware of its more limited discretion. Thus, we assume without deciding that the different posture of the instant case compared to that in Lynch requires an examination of whether the court would have imposed the same sentence in the absence of the error. We conclude the defendant has demonstrated prejudice in this regard, regardless of whether the applicable test is whether the record clearly indicates the court would have imposed the same sentence absent the error, or whether it is reasonably probable the court would have imposed the same sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Gutierrez (2014) 58 Cal.4th 135