Tag Archives: Sentencing

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000811

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to order a stay-away order upon sentencing the defendant. Otherwise, we affirm the court’s sentencing choices.

First Holding:

Under section 136.2, when the court has a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, the court is authorized to issue a restraining order. Orders made under section 136.2 are operative only during the pendency of criminal proceedings and as prejudgment orders. The only purpose of a section 136.2 protective order is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.

Authority:

PEN 136.2

People v. Scott (2012) 203 Cal.App.4th 1303, 1324–1325

People v. Ponce (2009) 173 Cal.App.4th 378, 383, 384 [Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.]

Second Holding:

We also observe that courts must, at the time of sentencing for certain crimes, consider issuing a protective order prohibiting a defendant from contacting a victim. None of these other statutes are applicable in this matter. The order issued against the defendant therefore transcended the authorization of section 136.2 and must be vacated.

Authority:

PEN 136.2(i)(1)

PEN 273.5

PEN 646.9(k)

People v. Stone (2004) 123 Cal.App.4th 153, 160
We review the trial court’s sentencing decisions for an abuse of discretion. Under this standard of review, the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Third Holding:

To prove an abuse of discretion, the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 377 [a sentencing court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant generally falls under one of the categories enumerated in the subdivision. Rather, the statute is clear that childhood trauma (or one of the other two categories in subdivision (b)(6)) must be a contributing factor to the offense in order to qualify for a presumption of the low term in sentencing. On this record, we cannot say that the court failed to consider section 1170(b)(6), or that its decision to impose the middle term notwithstanding the provision was so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988, 991 [In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.]

People v. Hilburn (2023) 93 Cal.App.5th 189, 204, fn. 6

People v. Ramirez (2021) 10 Cal.5th 983 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

People v. Carmony (2004) 33 Cal.4th 367, 377

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, 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:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

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

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Sentencing

Case 000809

Posted on by Gary McCurdy

Error and/or relief

The court miscalculated the credit for time served and gave the defendant one less than he earned. That abstract of judgment msut be corrected as well.

Holding:

The trial court awarded defendant 278 days of actual custody credit and 278 days of conduct credit, for a total of 556 days. However, defendant was arrested on February 21, 2024 and sentenced on November 25, 2024. The court therefore should have awarded him 279 days of actual custody credit, and 278 days of conduct credit, for a total of 557 days of presentence custody credit. The minute order and abstract of judgment both credit defendant 279 actual days and 278 conduct days but nevertheless record 556 as the total number of days. Accordingly, we will order the judgment modified to reflect the correct number of total credit days.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Abstracts and Minutes, Sentencing

Case 000806

Posted on by Gary McCurdy

Error and/or relief

The minute orders must be corrected to reflect that the court orally ordered 32 months as the term of probation, not the 36 months recorded in the minute order.

Holding:

The trial court must pronounce judgment in open court and on the record. The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. The abstract of judgment does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. We may correct a court’s written order or judgment that does not accurately reflect its oral pronouncement

Authority:

PEN 1193

PEN 1202

People v. McGahuey (1981) 121 Cal.App.3d 524, 530

People v. Leon (2020) 8 Cal.5th 831, 855

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

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes, Sentencing

Case 000805

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the oral pronouncement of judgment.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. We therefore “remand the matter to the trial court to delineate any fines and fees imposed, and their statutory bases.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Duty of the court, Plea bargains, Sentencing

Case 000804

Posted on by Gary McCurdy

Error and/or relief

When the defendant pleaded guilty, the agreement was that he would be placed on probation, and if he violated probation and it was revoked, he would be sentenced to prison for three years. It was error on revocation of probation for the court to sentence him to four years.

First Holding:

The process of plea negotiation contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty or no contest in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.

This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment, by the People’s acceptance of a plea to a lesser offense than that charged, either in degree or kind, or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and prosecution. But implicit in all of this is a process of bargaining between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 929–930

People v. Prudholme (2023) 14 Cal.5th 961, 970

Second Holding:

The prosecutor is the only party authorized to negotiate on behalf of the state, and the trial court cannot substitute itself in place of the prosecutor. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930

Third Holding:

Because a negotiated plea agreement is a form of contract, it is interpreted according to general contract principles. Acceptance of the agreement binds the court and the parties to the agreement. [When a guilty or nolo contendere plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931

Fourth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.

A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, either directly or indirectly. Once the court has accepted the terms of the negotiated plea, it lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.

For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, but it cannot change that bargain or agreement without the consent of both parties.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

Fifth Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

Authority:

PEN 1192.5(b)

Sixth Holding:

Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved. When a court accepts a plea bargain, it must impose a sentence within the limits of that bargain.

Authority:

People v. Brooks (2020) 58 Cal.App.5th 1099, 1107

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047

Seventh Holding:

It is well settled that a criminal defendant cannot argue for the first time on appeal that the trial court aggravated a sentence based on items contained in a probation report that were erroneous or otherwise flawed. The defendant did not object to the recommendation in the probation report that he be sentenced to four years, nor did he object when the court imposed that term.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351–352

People v. Victorian (1992) 2 Cal.App.4th 954, 958

Eighth Holding:

Defendant raises the alternate argument that the trial attorney was prejudicially ineffective for failing to object to the trial court’s imposition of the four-year term. To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced.

Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different. To prevail on a claim of ineffective assistance on appeal the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.

Authority:

People v. Cash (2002) 28 Cal.4th 703, 734

Ninth Holding:

In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we 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. Jones (2003) 29 Cal.4th 1229, 1254

Tenth Holding:

It appears that between the time of the plea agreement in 2022 and the revocation proceedings in 2025, the trial court and the parties were unaware of the terms and conditions of the plea agreement, that the court did not withdraw its approval of the plea agreement, the plea agreement was never modified, and the probation report’s recommendation of the upper term violated the terms and conditions of the plea agreement as agreed to by the prosecution and defendant in 2022.

Instead, it appears the probation officer unilaterally recommended the upper term of four years without consideration of the plea agreement for the midterm of three years.

Defendant is not seeking a sentence outside the terms of the plea agreement but seeking to enforce the plea agreement. When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Therefore, we direct modification of the abstract of judgment to reflect the sentence agreed to by the parties and approved by the trial court in 2022—that defendant should be sentenced to the midterm of three years.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80

 

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

We review de novo a trial court’s denial of a section 1172.6 resentencing petition at the prima facie stage.

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Abstracts and Minutes, Fines and fees, Sentencing

Case 000797

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment mistakenly reflects that the trial court imposed financial obligations for court operations and conviction assessments and the abstract erroneously indicates the restitution fines were not stayed. It must be corrected.

First Holding:

The trial court stated a compelling reason for staying an otherwise mandatory restitution fine: any income the defendant earned would be better directed toward paying the direct restitution to the victim that the court did order.

Authority:

People v. Mercer (1999) 70 Cal.App.4th 463, 467 [we draw all inferences in favor of the judgment]

Second Holding:

The abstract of judgment shall be corrected to reflect that the trial court stayed the section 1202.4, subdivision (b), restitution fines, and the financial obligations from the court operations and conviction assessments shall be struck. (Gary note: the court cited no authority for ordering the correction of the abstract of judgment, but there are many cases it could have relied on. I have set forth a few below for your convenience.)

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

Amelioration, Plea bargains, Sentencing

Case 000792

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1170(d), because (a) it incorrectly concluded that section 1171 barred resentencing where the original sentence was agreed on by the parties, and (b) it incorrectly believed that the parties had originally agreed to the sentence imposed. Reversed and remanded.

Because the trial court did not consider whether, despite the availability of youthful offender parole, the defendant’s determinate sentence is a de facto LWOP sentence, we leave that issue for the trial court to consider in the first instance.

First Holding:

Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

The statute then provides that a plea bargain may not be rescinded based upon such modification: Any change to a sentence shall not be basis for a prosecutor or court to rescind a plea agreement. Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement

Authority:

PEN 1171(a), (c)(2) and (c)(3)

Second Holding:

Section 1170(d), under certain circumstances, provides for the recall and resentencing of juvenile offenders [who were tried as adults] with LWOP sentences.

(Gary note: without citation to published authority directly discussing this point, the unpublished opinion concludes that the use of the term “life without the possibility of parole” in section 1170(d) does not mention any specific statutes imposing LWOP sentences, such as section 190.5.

(This court infers from that lack of specificity that the Legislature must have intended that section 1170(d) apply whenever a candidate has received a sentence that, effectively, precludes parole in his or her lifetime. In other words, this unpublished opinion’s reasoning on this point is that section 1170(d), by its very terms, contemplates both express LWOP sentences and de facto LWOP sentences (sentences whose terms cannot be completed within a reasonable lifetime).

(The court states, “Thus, the Legislature appears to have intended section 1170(d) to be interpreted in a practical rather than technical manner to apply not only to formal LWOP sentences but also to de facto LWOP sentences that effectively render a juvenile offender ineligible for parole before they are expected to die.”

(Keep in mind that my description of this part of the holding is placed in a bracketed “Gary note,” and I may be oversimplifying and even misstating the court’s reasoning on this point. I simply thought it was an interesting approach that may prove useful.

(Also, the county’s District Attorney “invited” the Supreme Court to grant review on its own motion.  I suspect it is because the Attorney General actually represented the People in this appeal, and the DA would have had no standing to file a petition for review.  The Supreme Court has granted itself to a date in October 2026 to decide whether to grant review on its own motion.)

Authority:

PEN 1170(d)(5)

Third Holding:

A practical interpretation of section 1170(d) is also supported by constitutional considerations. At least four Court of Appeal decisions have held that restricting resentencing under Section 1170(d) to juvenile offenders with formal LWOP sentences is irrational and violates equal protection, though others have disagreed.

Authority:

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Sorto (2024) 104 Cal.App.5th 435, 450-454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061

People v. Heard (2022) 83 Cal.App.5th 608, 631-634

Contra: People v. Baldwin (2025) 113 Cal.App.5th 978, 1002-1006

Contra: People v. Thompson (2025) 112 Cal.App.5th 1058, 1075-1081, review granted Sept. 24, 2025, S292540

Fourth Holding:

Nonetheless, interpreting section 1170(d) to be limited to formal LWOP sentences plainly raises a serious constitutional question, and it is well-established that statutes should be construed to avoid constitutional questions where they are reasonably susceptible to a reasonable alternative interpretation that do not raise such questions. Accordingly, we conclude that section 1170(d) should be interpreted to apply to de facto as well as formal LWOP sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 862 [If a statute is susceptible of two constructions, one of which will raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it free from doubt as to its constitutionality.]

People v. Miracle (2018) 6 Cal.5th 318, 339 [A statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.]

Fifth Holding:

The trial court held that the defendant was not serving a de facto LWOP sentence because he is eligible for youthful offender parole under section 3051 and, in fact, already has received a youthful offender parole hearing. We disagree. Youthful offender parole is available to all juvenile offenders with LWOP sentences, whether formal or not.

Moreover, the Legislature extended youthful offender parole hearings to juvenile offenders with LWOP sentences in 2017, five years after enacting section 1170(d). In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under section 1170(d), and, as the Supreme Court has long recognized, absent an express declaration of legislative intent, we will find an implied repeal only when there is no rational basis for harmonizing the two potentially conflicting statutes.

Accordingly, in determining whether an individual was sentenced to imprisonment for life without the possibility of parole under section 1170(d), youthful offender parole should be disregarded.

Authority:

PEN 3051(b)(4)

People v. Hardin (2024) 15 Cal.5th 834, 845

Garris v. McCutchen (1997) 16 Cal.4th 469, 477

People v. Sorto (2024) 104 Cal.App.5th 435, 447-448

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

Fines and fees, Retroactivity, Sentencing, Standard of review, Statutory interpretation

Case 000791

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court reimposed the restitution fine that was ordered at the original sentencing more than 10 years earlier. The restitution fine must be vacated.

First Holding:

Defendant contends the trial court erred by reimposing a restitution fine under section 1202.4(b) because the language of section 1465.9(d) mandates vacating these fines after 10 years. The People disagree and counter defendant’s fines were reimposed at the resentencing hearing, making section 1465.9 inapplicable because 10 years have not elapsed under the statute. We agree with defendant.

Authority:

John v. Superior Court (2016) 63 Cal.4th 91, 95

Second Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

Trial courts have jurisdiction to modify every aspect of a sentence at a full resentencing hearing, including fines. Here, at resentencing the trial court confirmed and reimposed all previous terms, conditions, fines and fees, and admonishments provided by the court on the day of defendant’s original sentencing. The court clearly intended to reimpose the original restitution fine and not an additional, new obligation under section 1202.4(b).

Authority:

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

People v. Rosas (2010) 191 Cal.App.4th 107, 117

People v. Nilsson (2015) 242 Cal.App.4th 1, 34

Fourth Holding:

As in Salstrom, we find no support for the People’s position that this reimposition restarted section 1465.9’s 10-year clock. The plain language of section 1465.9(d) provides legislative intent to eliminate restitution fines under section 1202.4 after 10 years. Allowing trial courts to reimpose a restitution fine under section 1202.4(b) originally imposed more than 10 years prior could render section 1465.9 effectively meaningless for any defendant who is subject to a full resentencing” or is successful on an appeal or a collateral attack.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on another issue March 11, 2026, S295038