Tag Archives: Sentencing

Eighth Amendment, Juveniles, Sentencing

Case 000313

Posted on by Gary McCurdy

Error and/or relief

Tried as an adult for murder in 2008, the defendant was sentenced to 47 years to life in prison. The trial court denied his recently filed (2024) motion for resentencing under section 1170(d), believing the defendant was categorically ineligible for resentencing because he did not receive an actual LWOP sentence and the 47 years to life sentence he did receive was not long enough to qualify as the functional equivalent of LWOP. We hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.

Authority:

PEN 1170(d)

Second Holding:

We conclude that defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, are eligible for section 1170(d) relief.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608 [GARY NOTE: 23 years plus 80 years to life]

People v. Sorto (2024) 104 Cal.App.5th 435 [GARY NOTE: 10 years plus 130 years to life]

People v. Contreras (2018) 4 Cal.5th 349, 356, 369 [holding sentences of 50 and 58 years to life imposed on two defendants who were 16 years old at the time of their kidnapping and sex offenses were functionally equivalent to LWOP and violated the Eighth Amendment]

Third Holding:

While the trial court rightly identified the line drawing problems this question raises given the current state of the law, lines must still be drawn. They need not be drawn entirely in the abstract, however. Instead, guided by our consideration of defendant’s history and prospects—and by our Supreme Court’s observation that a sentence must give a juvenile “a realistic hope of release and a genuine opportunity to reintegrate into society” to be constitutional (Contreras, supra, 4 Cal.5th at 373)—we hold defendant is serving a sentence that is the functional equivalent of LWOP and among those who are not categorically ineligible for relief under section 1170(d).

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 373

Fourth Holding:

This question is pending in the Supreme Court. Acknowledging our Supreme Court will have the final word, we hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828

Amelioration, Elements of crime, Sentencing

Case: 000312

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to PC 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike.

First Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense, which would also constitute a felony violation of section 186.22. The prior firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1).

Authority:

AB 333

PEN 1192.7(c)(28)

PEN 667

People v. Briceno (2004) 34 Cal.4th 451, 456

Second 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. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant. This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions.

Authority:

PEN 186.22(g)

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

Amelioration, Elements of crime, Sentencing

Case: 000311

Posted on by Gary McCurdy

Error and/or relief

For a prior felony conviction based on gang criminal activity to qualify as a serious felony or a strike, it must have met the elements of section 186.22 as amended by AB 333. In this People’s appeal from the dismissal of that strike, we affirm the trial court’s order.

First Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of Section 186.22. The prior firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667

People v. Briceno (2004) 34 Cal.4th 451, 456

Second 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. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant. This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions.

Authority:

PEN 186.22(g)

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

Elements of crime, Fines and fees, Juveniles, Retroactivity, Sentencing

Case: 000310

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support an enhancement based on a finding that the crimes were committed for the benefit of a criminal street gang. Imposition of a restitution fine is now precluded by subsequent legislation. We modify the judgment to strike the gang enhancement and vacate the restitution fine.

First Holding:

Effective January 1, 2022, section 186.22 was amended by AB 333, significantly narrowing the circumstances in which the enhancement would apply. As amended, the statute now requires, among other things, that the two predicate offenses necessary to establish a pattern of criminal gang activity must each have been committed within a specified date range by two or more gang members for the common benefit of the gang, and this benefit must have been more than reputational. Here, the evidence of predicate offenses offered by the prosecution showed three possible crimes, two of which were committed by a single gang member without anything to indicate a value to the gang that was more than reputational. This is insufficient to establish a basis for the gang enhancement as amended by AB 333

Authority:

People v. Clark (2024) 15 Cal.5th 743, 752–753

Second Holding:

Effective January 1, 2025, Welfare and Institutions Code section 730.6 now prohibits imposition of restitution fines on juvenile offenders. This provision is retroactive. We therefore vacate the $100 restitution fine.

Authority:

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

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

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

Case: 000309

Posted on by Gary McCurdy

Error and/or relief

Denial of petition to vacate judgment of murder and for resentencing under section 1172.6 is reversed. The appellant’s participation in the planning and commission of the robbery and failure to render aid to the co-defendant do not demonstrate that he acted with the requisite reckless indifference to human life to be culpable of murder.

First Holding:

The Legislature enacted SB 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. As amended by SB 1437, section 189 now limits liability under a felony-murder theory to actual killers and those who, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree. Individuals who do not fall into those categories can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—the statute defining the felony-murder special circumstance. Section 1172.6 permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts.

Authority:

SB 1437

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court’s factual findings for substantial evidence. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. We do not reweigh evidence or revisit the trial court’s credibility determinations.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

People v. Clements (2022) 75 Cal.App.5th 276, 298

People v. San Nicolas (2004) 34 Cal.4th 614, 657-658

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Cody (2023) 92 Cal.App.5th 87, 112-113

Third Holding:

In Banks, the Supreme Court set out a nonexhaustive list of considerations relevant to whether a defendant’s participation in criminal activities known to carry a grave risk of death is sufficiently significant to render him or her a major participant in the crime. Those considerations are: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

Authority:

People v. Banks (2015) 61 Cal.4th 788, 794, 803

People v. Strong (2022) 13 Cal.5th 698, 705

Fourth Holding:

Clark similarly set forth a list of considerations relevant to determining whether a defendant acted with reckless indifference to human life. The first factor relates to weapons: was the defendant aware that weapons would be used in the felony? Did the defendant use a weapon? How many weapons were used in the crime? The court cautioned that the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun is what the Banks court meant by a garden-variety armed robbery.

The second factor is the defendant’s physical proximity to the murder and the events leading up to it, and the opportunities that proximity afforded to restrain the crime or aid the victim.

The third factor is the duration of the felony, particularly the duration of the interaction between victims and perpetrators; more prolonged incidents provide “‘a greater window of opportunity for violence.

The fourth factor is the defendant’s awareness of his or her codefendants’ propensity for violence or likelihood of killing a victim.

The final factor is the defendant’s efforts to minimize the risk of violence during the felony, though the court cautioned that some effort to minimize the risk of violence does not, in itself, necessarily foreclose a finding that defendant acted with reckless indifference to human life. In cases where a defendant was a youth at the time of the crime, his or her age may also be relevant to determining whether he or she acted with reckless indifference.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617-623

People v. Banks (2015) 61 Cal.4th 788, 794, 802

People v. Emanuel (2025) 17 Cal.5th 867, 885 fn 6

In re Moore (2021) 68 Cal.App.5th 434, 453-454

People v. Ramirez (2021) 71 Cal.App.5th 970, 987

Fifth Holding:

No single Banks or Clark factor is determinative. Lower courts should take care to consider the presence or absence relating to each relevant factor on its own merits before considering the evidence in its totality.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 621-623

People v. Emanuel (2025) 17 Cal.5th 867, 888

Sixth Holding:

There is significant overlap between being a major participant and acting with reckless indifference to human life, and the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. However, that does not necessarily mean that every major participant in a crime acts with reckless indifference to human life. Participation in a gardenvariety armed robbery is insufficient without more to establish reckless indifference. The defendant must not merely be aware of the foreseeable risk of death inherent in any violent felony; he or she must knowingly create a grave risk of death to demonstrate reckless indifference to human life. The defendant’s actions before and during the crime are important but not determinative; the key inquiry is what his actions reveal about his mental state.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 614-615

People v. Emanuel (2025) 17 Cal.5th 867, 884