Tag Archives: Sentencing

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000846

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erred in failing to update the credit for time served. Remanded for the court to calculate the correct number of days and to correct the abstract of judgment that reflected the credit as of only the original sentence date.

First Holding:

The trial court incorrectly calculated his custody credit, and the abstract of judgment following the resentencing hearing does not reflect the actual days of custody credit as of the date of resentencing. We therefore remand the matter so the court may recalculate Smith’s actual days of custody credit and prepare an amended abstract of judgment.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Second Holding:

(Gary note: The appellate court otherwise affirmed the sentence imposed on resentencing, but announced principles worthy of mention here, though they did not support any relief on appeal for this defendant.)

We review the trial court’s sentencing decisions for an abuse of discretion. We interpret relevant statutes and review claims of ineffective assistance of counsel de novo.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Mayfield (1993) 5 Cal.4th 142, 199

People v. Terwilligar (2025) 109 Cal.App.5th 585, 595

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Sentencing

Case 000844

Posted on by Gary McCurdy

Error and/or relief

A portion of the defendant’s presentence custody status was preconviction home detention. That period was sufficiently custodial to entitle the defendant to custody and conduct credits. The matter is remanded for the trial court to determine what portion of the defendant’s preconviction status met the statutory requirements for creditable home detention.

First Holding:

Preconviction custody credits are governed by section 2900.5(a), which provides in relevant part that in all felony and misdemeanor convictions, either by plea or by verdict, all days of custody of the defendant, including days served in home detention pursuant to section 1203.016 or 1203.018, shall be credited upon his or her term of imprisonment.

Authority:

PEN 2900.5(a)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1087– 1088

Second Holding:

Section 1203.018 authorizes a county to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if certain conditions are met. An electronic monitoring program is defined as including home detention programs. The statute authorizes the board of supervisors to prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate.

Authority:

PEN 1203.018

Third Holding:

When a defendant is subject to preconviction electronic monitoring conditions under terms that are as custodial, or restraining as a statutory home detention program pursuant to section 1203.018, equal protection principles entitle that defendant to preconviction custody credits under section 2900.5 and conduct credits under section 4019.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1089

Fourth Holding:

Whether a defendant is in custody for the purposes of section 2900.5 is a matter of statutory interpretation, a question of law we review de novo. The burden is on the accused to establish entitlement to presentence custody credit.

Authority:

People v. Ravaux (2006) 142 Cal.App.4th 914, 919

People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that 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:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

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]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case 000841

Posted on by Gary McCurdy

Error and/or relief

The Court of Appeal treated this appeal as a petition for writ of habeas corpus, and struck the enhancement for the now-invalid prison term enhancement.

Habeas was necessary because the defendant’s name did not appear on a list prepared and maintained by the California Department of Corrections and Rehabilitation (CDCR), so the defendant was not eligible to apply for resentencing under section 1172.75.

The court granted the writ, directing that the prior prison term enhancement be stricken, and also ordered correction of an error contained in the abstract of judgment.

First Holding:

Section 1172.75, effective in 2022, 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 as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

The statute also establishes a process for recalling sentences that include now-invalid prior prison term enhancements and resentencing affected defendants. It requires the Secretary of the CDCR and the county correctional administrator of each county to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and to provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.

Upon receiving this information, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in section 1172.75(a). If the judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant.

Section 1172.75 does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.

While defendant’s petition is not sufficient to authorize the trial court to act pursuant to section 1172.75, jurisdiction can be found if the CDCR provided the court with a list identifying defendant while his petition was pending.

In this case, the CDCR never identified defendant to the trial court as someone eligibile for section 1172.75 resentencing, and the trial court did not have jurisdiction to resentence the defendant under section 1172.75. Therefore, the trial court’s resentencing and related abstract of judgment and minute order are void.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 384

People v. Cota (2023) 97 Cal.App.5th 318, 332 [trial court is statutorily authorized to act once trial court receives defendant’s identification information from CDCR]

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

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

People v. Chavez (2018) 4 Cal.5th 771, 780

Third Holding:

On appeal from a void judgment or order, we must reverse the trial court’s void acts because simply dismissing the appeal would leave intact the void judgment.

Authority:

People v. Gray (2024) 101 Cal.App.5th 148, 170

People v. Alanis (2008) 158 Cal.App.4th 1467, 1477, fn. 5

Fourth Holding:

Where, as here, execution of sentence has commenced and the judgment is final, the trial court is generally deprived of jurisdiction to resentence a criminal defendant.  To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75). 

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 339

People v. Karaman (1992) 4 Cal.4th 335, 344

Dix v. Superior Court (1991) 53 Cal.3d 442, 455

People v. Hernandez (2019) 34 Cal.App.5th 323, 326

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118

Fifth Holding:

A trial court may recall and resentence a defendant on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, provided the new sentence, if any, is no greater than the initial sentence.

A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1172.1(a)(1)

Sixth Holding:

A defendant may, however, invite the court to exercise its discretion under section 1172.1.

However, appellate courts have uniformly held that a trial court’s summary decision not to take up a defendant’s invitation under section 1172.1 is not an appealable order and that any such appeal fails to confer jurisdiction to the Court of Appeal.

There is no indication in the record that the trial court intended to grant defendant’s invitation to recall and resentence him pursuant to section 1172.1.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375

People v. Brinson (2025) 112 Cal.App.5th 1040, 1047

People v. Roy (2025) 110 Cal.App.5th 991, 1001

People v. Faustinos (2025) 109 Cal.App.5th 687, 695–696

People v. Hodge (2024) 107 Cal.App.5th 985, 996

Seventh Holding:

The record does reflect that a prior prison term enhancement was imposed illegally (because it was imposed AFTER the statute was amended declaring such prior prison term enhancements to be invalid).

Both parties have requested that we treat defendant’s appeal as a petition for writ of habeas corpus with respect to the sentence he is still serving, and we exercise that discretion.

Accordingly, for the sake of judicial economy, we shall deem defendant’s appeal, in part, a petition for writ of habeas corpus and order that the abstract of judgment be modified to strike defendant’s former section 667.5 enhancement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

Eighth Holding:

The abstract of judgment erroneously reflects that the firearm enhancement is attached to count II instead of count I, which it was actually attached to. Having reviewed the record on appeal, we shall order the abstract of judgment corrected.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

Abstracts and Minutes, Sentencing

Case 000840

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court awarded the incorrect number of days of credit.

Though the abstract of judgment lists the correct number of days, it does not correctly reflect the controlling oral pronouncement of judgment. The court must amend the final abstract of judgment after correcting the calculation of credit for time served.

First Holding:

At the conclusion of the resentencing hearing, the superior court awarded actual days that only reflected the number of actual days from the original sentencing date to the resentencing date. It did not include the number of days of original presentence actual credit. Additionally, the court did not indicate the original presentence local conduct credit.

On remand, the resentencing court must recalculate the actual time served to include the original presentence actual days in custody and the number of days in custody from the original sentencing to the resentencing.

The court must also indicate the presentence local conduct credit.

Authority:

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

Second Holding:

The most recent abstract of judgment reflects the original presentence credit, as well as the credit awarded at the resentencing. But the oral pronouncement controls when a discrepancy exists between it and the abstract of judgment. We direct the superior court to amend the final abstract of judgment upon correcting the errors we have described.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

Sentencing, Sixth Amendment, Standard of review

Case 000837

Posted on by Gary McCurdy

Error and/or relief

On resentencing following the defendant’s earlier appeal, the court misunderstood the scope of discretion with regard to striking or reducing the term imposed for firearm enhancements.

It also erred in imposing the upper term based on circumstances in aggravation that should have been, but were not, either stipulated to by the defendant or submitted to a jury for determination beyond a reasonable doubt.

First Holding:

When an accusatory pleading alleges and the jury finds true the facts supporting a greater firearm enhancement, the court may impose a lesser included, uncharged statutory enhancement. Further, a trial court may strike a defendant’s enhancement under section 12022.53 and impose a lesser uncharged enhancement authorized elsewhere in the Penal Code, that is, outside of section 12022.53.

Authority:

People v. Tirado (2022) 12 Cal.5th 688, 697, 700

People v. McDavid (2024) 15 Cal.5th 1015, 1030

Second Holding:

We consider a trial court’s sentencing decisions under an abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings not supported by substantial evidence.

A ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.

Authority:

People v. Moseley (2004) 105 Cal.App.5th 870, 874

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Tirado (2022) 12 Cal.5th 688, 694

Third Holding:

Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors. A silent record does not demonstrate a lack of awareness of the court’s full sentencing discretion.

Even if the sentencing court was unaware of its discretion, remand is not necessary when the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

It appears from the record in this case that the court believed that its only choices were to impose the section 12022.53 enhancement or to strike it entirely. It appears that the court was unaware that it also had the option to impose a firearm enhancement under a lesser statute, section 12022.5.

Authority:

People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

The court erred in imposing the upper term based on a circumstance in aggravation that was not submitted to a jury for determination beyond a reasonable doubt, that the defendant’s (specifically, that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness).

Authority:

PEN 1170

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

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

Fifth Holding:

A trial court’s sentencing decisions are reviewed for abuse of discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

Sixth 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 the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Duty of the court, Fines and fees, Sentencing

Case 000835

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erroneously imposed an enhancement that had been vacated as a result of an earlier appeal. The court also erred by not recalculating the credit for time served through the date of the resentencing. Further, the restitution fine must be vacated, as it was imposed at least 10 years ago.

First Holding:

When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody. The California Department of Corrections and Rehabilitation is responsible for calculating any postsentence custody credits.

Authority:

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

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

Second Holding:

After 10 years have elapsed from the imposition of a restitution fine imposed under section 1202.4, any remaining balance is unenforceable and uncollectible. Any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Third Holding:

The trial court struck the six one-year prior prison terms but declined to otherwise modify the sentence. However, although this court had previously vacated the three-year term imposed on count 1 pursuant to section 12022.7,(a), in resentencing the defendant, the trial court again imposed the enhancement and three-year term. The parties agree this was error, as do we. The great bodily injury enhancement imposed as to count 1 must be stricken and the three-year term vacated.

(Gary note: The court cited no authority for its order striking the enhancement that had been stricken in the earlier appeal. The relief seems obvious enough. Under section 1260, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

(If that doesn’t precisely address the issue, one could also look at Dutra, although it, too, is not exactly on point. It dealt with the trial court’s act of not complying with the instructions in the remittitur because of a change in the law, but the change did not permit it to act outside the direction of the remittitur. Again, not exactly what happened here.

(Or one could argue that imposing the enhancement resulted in an unauthorized sentence (again), which can be corrected whenever the matter is before the court. See, for example, Sanders.

(It just seems so intuitive that the trial court, on resentencing, could not reimpose an enhancement that was stricken as unlawful in the earlier appeal. I’m not surprised the appellate court did not see a need to cite authority, particularly where the parties both agreed on the error and remedy. The authorities I have listed below were not cited by the court, and the two cases are fairly distinguishable from this situation, but might prove interesting reading nonetheless.)

Authority:

PEN 1260

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000833

Posted on by Gary McCurdy

Error and/or relief

The trial court’s true findings on three of the four strike priors and three of the four prior serious felony enhancements must be vacated and the matter remanded to the court for any retrial of these allegations, because there is insufficient evidence to support the finding defendant’s three 2016 convictions qualify as serious or violent felonies for purposes of three of the four strike priors and three of the four prior serious felony enhancements under the 2022 amendments to section 186.22 enacted by AB 333.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: if a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7 defines “serious felony” to include, among other things, any felony offense that would also constitute a felony violation of section 186.22.

Authority:

PEN 1170.12

PEN 1192.7(c)(28)

Second Holding:

Section 186.22(a) makes it unlawful to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and to willfully promote, further, or assist in felonious criminal conduct by members of that gang.

Section 186.22(b) provides for enhancements if a person commits a felony for the benefit of such a gang. Section 186.22 also defines the terms criminal street gang and pattern of criminal gang activity as well as benefitting a gang.

Authority:

PEN 186.22

Third Holding:

Effective January 1, 2022, AB 333 narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas former section 186.22(f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a ‘criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offense commonly benefitted a criminal street gang and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

PEN 186.22

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

Fourth Holding:

Fletcher held that, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Whether a prior conviction was for an offense that constitutes a felony violation of section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

Fifth Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1067

Sixth Holding:

The inquiry concerning whether a prior conviction qualifies as a serious felony is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. McGee (2006) 38 Cal.4th 682, 706

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795)

Abstracts and Minutes, Sentencing

Case 000832

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

The minute order incorrectly states that the defendant pleaded no contest to a violation of Health and Safety Code section 11378. In fact, the defendant admitted this prior conviction, but she pleaded no contest to a violation of Penal Code section 29800(a)(1). The minute order further states that felony probation was denied when, in fact, the trial court placed the defendant on felony probation. We order the minute order to be corrected.

Authority:

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 954

Duty of the court, Sentencing

Case 000830

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a “win,” even under my generous standards, but I have included it because it instructs on the duty of the court to recalculate credit for actual days served since the prior sentencing, but the trial court does not calculate the conduct credits earned since the original sentencing.)

The trial court erred in awarding presentence conduct credit for time the defendant spent in custody between his original sentencing and the time he was resentenced following remand from his earlier appeal.

Holding:

It was error for the court to calculate credits under section 2933.1 for conduct of the defendant in custody between the date of his original sentencing and the date of his resentencing as a result of his prior appeal.

The court should have calculated the days in actual custody (along with whatever local conduct credit the defendant earned prior to his original sentencing).

The California Department of Corrections and Rehabilation [CDCR] will then determine what conduct credit the defendant is entitled to following his original sentencing. An appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the Director of the CDCR’s custody or restore the prisoner to presentence status. A defendant’s temporary removal from state prison to county jail as a consequence of the remand did not transform him from a state prisoner to a local presentence detainee.

When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

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

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]