Tag Archives: Prior convictions

Amelioration, Sentencing

Case 001154

Posted on by Gary McCurdy

Error and/or relief

The defendant was eligible for resentencing under section 1172.75 even though the original sentencing court struck the punishment for the now-invalid prior prison term enhancement.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Section 1172.75(b) requires the Secretary of the California Department of Corrections and Rehabilitation and the administrators for each county jail to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and to provide certain information about those individuals to the sentencing court that imposed the enhancement.

Upon receiving that information, the trial court shall recall the sentence and resentence the defendant if the court determines that the current judgment includes an enhancement described in subdivision (a).

If the court determines that the individual’s judgment includes such an enhancement, the defendant’s resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Authority:

PEN 1172.75

Second Holding:

Espino held hat section 1172.75 applies to prior prison term enhancements that were imposed but as to which the punishment was struck. Because section 1172.75 applies to the defendant’s prior prison term enhancements, he is entitled to resentencing under subdivision (d) of the statute.

Authority:

People v. Espino (2026) 20 Cal.5th 57, 60

Amelioration, Duty of the court, Jury trial, Retroactivity, Sentencing, Sixth Amendment

Case 001151

Posted on by Gary McCurdy

Error and/or relief

The court made several sentencing errors. The strike based on a violation of section 186.22 requires examination whether the elements found true at the time of conviction meet the heightened requirements of the amendments under AB 333.

The court imposed the upper term on several counts despite there being no jury trial waiver nor stipulation by the defendant to the aggravating factors. Further, the court relied on factors in aggravation that were also the basis of enhancements, violating the prohibition against dual use.

The court erred in imposing two full terms consecutively for two counts, as consecutive determinate (subordinate) terms are limited to one-third the middle term.

The court miscalculated the credit for time served.

First Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of “benefit” to mean “to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a prior serious felony.

We remand to permit the prosecution the opportunity to establish that the prior conviction (from more than 15 years ago) constitutes a strike and a prior serious felony conviction under current law. conviction.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

Second Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). Under subdivision (b)(2), 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.

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. A defendant is entitled to have a jury determine the facts justifying an upper term based on the “increasing seriousness” of a defendant’s prior convictions.

Authority:

PEN 1170(b)

Cal. Rules of Court, rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1085-1086 [increasing seriousness of a crime required a jury determination]

People v. Lynch (2024) 16 Cal.5th 730, 759–760

Third Holding:

The court erred in relying on two factors in aggravation that formed the basis of enhancements for which punishment was imposed. This was error because of the prohibition against the dual use of facts to impose an upper term sentence based on the facts of an enhancement.

Authority:

PEN 1170(b)(5)

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

Fourth Holding:

The court imposed two consecutive 18-year terms for each of the attempted murder counts, which consisted of the upper term of nine years double for the prior strike. This was error. The trial court may the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court may impose only one-third of the middle term’for subordinate terms.

Authority:

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

Fifth Holding:

The court erred in its calculation of credit for time served, and on remand the court shall ensure that the abstract of judgment be amended to reflect the proper credits.

Authority:

PEN 2900.5

Sentencing

Case 001146

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to resentence the defendant as a third strike offender, because the prior convictions counted as strikes were all based on a single act against multiple victims, and must count as only a single strike, subjecting the defendant to only as a second-strike offender.

Holding:

Shaw held a defendant who commits a single criminal act that harms multiple victims earns one strike for purposes of Three Strikes sentencing, not multiple. In this case, the defendant’s five prior convictions arose from a single act of threatening five hostages with a [specified weapon]. All but one of the defendant’s strikes should be dismissed, and the court should resentence him as a second-strike offender.

Authority:

People v. Shaw (2025) 18 Cal.5th 1089, 1103 [the rule that a trial court is required to dismiss a strike when two of a defendant’s prior strikes are the result of the same act applies in cases in which the defendant’s single act harmed multiple victims]

Appellate Principles, Sentencing

Case 001145

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing a post-sentencing protective order and in doubling the middle term when the strike had been dismissed as part of the plea agreement.

First Holding:

A court may issue a protective order to protect a witness or victim during the pendency of a criminal case. Generally, protective orders issued under section 136.2 are limited in duration and may not extend beyond the court’s jurisdiction. It was therefore error for the court to impose a protective order to extend past sentencing.

Authority:

PEN 136.2

People v. Ponce (2009) 173 Cal.App.4th 378, 382

Second Holding:

The issue of the propriety of the issuance of a protect order may be raised on appeal despite a lack of objection.

(Gary note: The court cited Ponce, but did not elaborate on its holding. I have set forth the Ponce actual holding.)

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381 (As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a three-year protective order during sentencing, we will consider Ponce’s claim on the merits.)

Third Holding:

It was error to impose a second-strike punishment, because the defendant did not admit the prior strike. The strike prior allegation was dismissed when the defendant was sentenced.

(Gary note: The court did not cite any authority for this holding, most likely because it is so obvious. I have listed the two statutes pertaining to the Three Strikes law for your convenience.

(Section 667 was amended by the Legislature in 1994 to add the Strikes alternative sentencing scheme in addition to the already-existing section 664(a) enhancement on serious felony convictions for each prior conviction of a serious felony brought and tried separately.

(Section 1170.12 was added by initiative (Proposition 184) later in 1994. Somewhat confusingly, perhaps, both statutes co-exist. Both were amended in 2012 by Proposition 36.)

Authority:

PEN 667(b)-(j)

PEN 1170.12

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

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

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.