Tag Archives: Sentencing

Duty of the court, Sentencing

Case: 000020

Posted on by Gary McCurdy

Error and/or relief

Following a revocation of probation, the defendant was sentenced to state prison. The trial court erred in not obtaining a probation report before sentencing him. The error was prejudicial. We reverse.

First Holding:

Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.

Authority:

PEN 1203(b)(1)

PEN 1203(b)(4)

Second Holding:

The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record.

Authority:

People v. Llamas (1998) 67 Cal.App.4th 35, 40

Third Holding:

Prejudice is measured under Watson.

Authority:

People v. Watson (1956) 46 Cal.2d 818

People v. Dobbins (2005) 127 Cal.App.4th 176

Fourth Holding:

A stipulation to waive referral to probation must appear in the minutes

Authority:

PEN 1203(b)(4)

Sentencing, Sixth Amendment

Case 000018

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding:

The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence. In Wiley, our Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of the holding in Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, the court interpreted] section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, 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

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

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Second Holding:

Failure to object generally results in forfeiture and can apply to constitutional claims.

Authority:

People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court]

People v. Scott (2015) 61 Cal.4th 363, 406 [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]

People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]

People v. Achane (2023) 92 Cal.App.5th 1037

Third Holding:

A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney.

Authority:

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

Fourth Holding:

An appellate court can exercise discretion to address a forfeited issue.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has engaged in violent conduct that indicates a serious danger to society or that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. 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, 1086

People v. Lynch (2024) 16 Cal.5th 730, 776

Effective assistance of counsel, Sentencing

Case: 000006

Posted on by Gary McCurdy

Error and/or relief:

The trial court did not actually dismiss a prior conviction it had agreed to dismiss under the bargain. The court modified the judgment by dismissing the prior conviction in keeping with the bargain. (It does not appear that the defendant was sentenced to time on the prior; simply the court forgot to dismiss it on sentencing.)

First Holding:

The appellate court reviews the record as it existed at time of the lower court’s ruling.

Authority:

In re Kenneth D. (2024) 16 Cal.5th 1087, 1102 [appellate court reviews record as it existed when lower court ruled]

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance must be demonstrated on appellate record]

Second Holding:

A certificate of probable cause is required to challenge on appeal a no contest plea on the grounds of ineffective assistance of counsel.

Authority:

PEN 1237.5

Rules of Court rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694-695

People v. Richardson (2007) 156 Cal.App.4th 574, 596 [pre-plea ineffective assistance of counsel]

Third Holding:

A claim of ineffective assistance of counsel requires not only a showing of deficient performance but also prejudice–a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceedings would have been different.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688

People v. Patterson (2017) 2 Cal.5th 885, 900

Fourth Holding:

Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, the court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1051

Fifth Holding:

Senate Bill No. 567 does not apply where defendant stipulated to upper term [this issue may still be pending in the Supreme Court].

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 ]Although Senate Bill No. 567’s amendments to section 1170 apply to this case, defendant cannot benefit from them because he stipulated to the upper term]

People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154 [disagreeing with Mitchell]

Sixth Holding:

Where not charged with substituted enhancement, the court has no authority to make findings that change the character of the crime or increase sentence.

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [because the defendant was not charged with a substituted enhancement, the trial court was without authority to make findings that change the character of the crime or enhancement so as to increase the sentence]

Seventh Holding:

The court must proceed in keeping with Penal Code section 1192.5 and abide by terms of agreement. Because the trial court may not proceed with regard to the plea in a manner other than as specified in the approved plea (§ 1192.5), the trial court’s silence at the sentencing hearing regarding the dismissal of the strike allegation was not an exercise of judicial discretion, but rather a mistake in creating a record of the judgment.

Authority:

PEN 1192.5

In re Candelario (1970) 3 Cal.3d 702, 705