Tag Archives: Prior convictions

Amelioration, Elements of crime, Sentencing

Case: 000303

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.

First Holding:

Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

AB 333

PEN 186.22

PEN 1192.7(c)(28)

PEN 667

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Second Holding:

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.

Authority:

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

Amelioration, Sentencing

Case: 000297

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit

First Holding:

Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.

Authority:

PEN 1172.75

PEN 667.5

Second Holding:

Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Third Holding:

Defendant’s actual presentence custody credits must be recalculated at this resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37

Amelioration, Sentencing

Case: 000293

Posted on by Gary McCurdy

Error and/or relief

In 2022, the trial court resentenced the defendant under Penal Code section 1172.75, which invalidated prior prison enhancements, by striking the enhancements. The trial court, however, left intact the Three Strikes sentences. The court should have considered whether to reduce the sentence in line with the Three Strikes Reform Act.

Holding:

A trial court is required to apply the Three Strikes Reform Act of 2012 at a section 1172.75 proceeding absent a finding the defendant poses an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Amelioration, Jurisdiction, Sentencing

Case: 000286

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court failed to consider the amendments under AB 333 to the elements of gang criminal activity and gang criminal enhancements. The trial court must first, however, determine whether the defendant’s name was on a list prepared by the Department of Corrections and Rehabilitation as being a person whose sentence includes a now-invalid enhancement for a prior prison term. If it is not, then the trial court has no jurisdiction to conduct a hearing under section 1172.75.

First Holding:

A trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. The Legislature may restore jurisdiction to the trial court by enacting a statute allowing defendants with final convictions to petition for resentencing, and indeed, has done so several times.

Authority:

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

Second Holding:

The Legislature did not create a right for defendants to petition for resentencing in section 1172.75. Instead, it required the secretary of the CDCR and the county correctional administrator of each county to initiate the resentencing process by identifying those persons in their custody currently serving a term for a judgment that includes an invalid enhancement and providing the name of each person to the sentencing court that imposed the enhancement. Absent action by the CDCR, the trial court lacks jurisdiction to entertain a defendant’s motion for resentencing.

Authority:

People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Cota (2025) 112 Cal.App.5th 1118, 1129-1131, review granted Oct. 1, 2025, S292637 [superior court has jurisdiction to resentence a defendant if the CDCR includes the defendant in a list of eligible inmates but fails to forward the list to the superior court]

Third Holding:

The record before us does not establish that the superior court had jurisdiction to resentence the defendant under section 1172.75. Any action taken without fundamental jurisdiction is void, not simply voidable. Prior to taking any further action on remand, therefore, the court must first determine whether the CDCR in fact placed the defendant’s name on a list of defendants potentially eligible for resentencing.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 71

Fourth Holding:

The full resentencing rule applies to proceedings under section 1172.75. Under this rule, the resentencing court has jurisdiction to modify every aspect of the sentence and may revisit all prior sentencing decisions . In particular, the court may consider any changed circumstances since the original sentencing hearing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 877

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Navarro (2007) 40 Cal.4th 668, 681

Fifth Holding:

The original sentence was based in part on the jury’s finding that the defendant committed the offenses for the benefit of a criminal street gang. Without that finding, his sentence for premeditated and deliberate attempted murder would have been life with the possibility of parole after having served seven years. Because of the gang finding, however, his sentence for attempted murder required that he serve at least 15 years prior to any parole.

AB 333 restricted the circumstances in which gang enhancements under section 186.22 apply. In resentencing proceedings under section 1172.75,the court shall apply any changes in law that reduce sentences, and the defendant argued that in light of the amendments to section 186.22, a retrial on the gang allegation is necessary. The trial court disagreed, concluding the gang enhancement has been found to be true and that a retrial was not warranted.

But AB 333’s substantive amendments to section 186.22 apply retroactively to defendants whose convictions are not final. Even if a defendant’s conviction became final years ago, if his sentence is vacated as a result of subsequent legislation, it becomes nonfinal for purposes of resentencing. Thus, assuming the court had jurisdiction to vacate the defendant’s sentence, he is entitled to benefit from the recent amendments to section 186.22 at resentencing.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388

People v. Padilla (2022) 13 Cal.5th 152, 162

Amelioration, Sentencing

Case: 000278

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court concluded that the defendant was ineligible for resentencing under section 1172.75 because his prior prison term enhancements were not executed. This was error.

Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

PEN 1172.75

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

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

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

People v. Jones (2012) 54 Cal.4th 350, 353

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, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to this section 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. Resentencing pursuant to section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the court shall apply any other 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:

PEN 1172.75

Second Holding:

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

People v. Dean (2024) 99 Cal.App.5th 391, 397

Amelioration, Sentencing

Case: 000255

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not applying the ameliorative provisions of the Three Strikes Reform Act of 2012.

First Holding:

PEN 1172.75

Authority:

Under the Three Strikes Reform Act of 2012, a defendant with two or more strikes will be sentenced to a doubled term rather than to a life term (that carried a minimum of 25 years or longer, depending on the offense) that was required for a third strike (regardless of the nature of the new felony) under the original Three Strikes law, unless the new offense is a serious felony, as defined. [There are some exceptions to the Reform Act not applicable here, essentially related to large quantities of drugs, sex offenses, use of or armed with firearms or other deadly weapons, or the intent to cause great bodily injury, or if the prior convictions were of the sort enumerated as disqualifying.]

Second Holding:

PEN 1170.12

PEN 667(e)

PEN 1170.126

Authority:

ADD AUTHORITIES HERE

Third Holding:

In Guevara, the Supreme Court held that, as a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. It remanded to the Court of Appeal with instructions to remand the case to the superior court to determine whether sentencing that defendant (Guevara) under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it so determined, the superior court was to reimpose the indeterminate term. If the superior court did not determine that resentencing Guevara would pose an unreasonable risk of danger to public safety, and Guevara was otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: The Guevara court did not limit the determination of public safety risk to the definition subsequently enacted in conjunction with Proposition 47, which did define it in section 1170.18. The standard to be applied was the pre-Proposition 47 definition that had traditionally been applied under the Three Strikes Reform Act. That was necessary for the two sets of provisions to be constitutionally reconciled. This aspect was not mentioned in the unpublished opinion summarized here.]

Authority:

People v. Superior Court (Guevara) 18 Cal.5th 838, 878

Amelioration, Sentencing

Case: 000247

Posted on by Gary McCurdy

Error and/or relief

The defendant is not eligible to have a full resentencing under section 1172.75 because no now-invalid prior prison term enhancement had ever been imposed, a pre-condition for invocation of section 1172.75. The abstract of judgment must be corrected because it erroneously indicates that the enhancement for the prior prison term was stayed, when it is clear from the record that the court actually struck the enhancement rather than impose and stay it.

First Holding:

Appellate courts may exercise their authority to correct clerical errors, including correcting an abstract of judgment and may strike statements in the abstract to conform with the court’s oral pronouncement. Because the trial court explicitly stated, “The court is likewise going to strike the 667.5(b) prison prior,” the enhancement should not have been listed in the abstract of judgment, and we have the authority to order the abstract’s correction without requiring an accompanying resentencing. We order that correction accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

People v. Zackery (2007) 147 Cal.App.4th 380, 388

Second Holding:

The question in this case was left open by the Supreme Court in People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2 and, as is discussed below, is factually distinguishable from the issue to be decided in People v. Espino (2024) 104 Cal.App.5th 188, 194 (Espino), review granted October 23, 2024, S286987, which hinges on the “imposition” of a stricken prison prior enhancement’s punishment. Pending briefing before the Supreme Court is limited to the following issue: “Is a defendant entitled to resentencing under Penal Code section 1172.75 when the judgment in the defendant’s criminal case includes a prior-prison-term enhancement that was imposed but for which punishment was stricken?” (Espino, S286987, Supreme Ct. Mins., July 30, 2025.)

(Gary Note: Espino was decided by the Supreme Court on July 2, 2026. It did firmly hold that section 1172.75 applies when the punishment for a now-invalid prior prison term enhancement was stricken, not merely stayed as it was in Rhodius. Footnote 1 of the Supreme Court opinion in Espino seems to make it clear that it was not deciding the issue that arose in this Case 000247. Footnote 1: “Our decision in Rhodius also left open whether a prior prison term enhancement is “imposed” (sec. 1172.75(a)) “when an enhancement, not just its associated punishment, [is] stricken” (Rhodius, supra, 17 Cal.5th at p. 1066, fn. 2). As that question is not at issue in this case, we do not address it.”

(I can tell you that a petition for review in this case (the one for which this is the summary, 000247) was denied a few months ago, before Espino was decided. It seems it will take a different case to convince the Supreme Court to decide whether a person is eligible for relief under section 1172.75 in cases where the court struck the enhancement itself (and thus had nothing on which to impose and either stay or strike punishment.)

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1066, footnote 2

People v. Espino (2024) 104 Cal.App.5th 188, 194 (review granted 10/23/24, S286987

People v. Espino (2026) ___ Cal.5th ___ (S286987, decided July 2, 2026)

Abstracts and Minutes, Amelioration, Sentencing

Case: 000231

Posted on by Gary McCurdy

Error and/or relief

The jury’s true finding in 2023 that the defendant suffered a prior serious felony and strike offense based on a past gang related conviction was error. We vacate the prior serious felony and strike conviction and remand for retrial and resentencing. Further, the abstract of judgment must be corrected because it reflects a conviction for first degree robbery when it should be second degree robbery.

First Holding:

In 2021, the Legislature amended the law prohibiting criminal gang activity law. In many respects, it changed the elements of a section 186.22 offense that the prosecution here did not prove. For a pre-AB 333 section 186.22 offense to qualify as a prior serious felony and strike offense, the prosecution was required to prove that the defendant’s past conduct met the post-AB 333 section 186.22 elements.

Authority:

PEN 186.22

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 582-583

Second Holding:

The abstract of judgment must be corrected.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate court could have cited]

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

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