Tag Archives: Sentencing

Fines and fees, Sentencing

Case 000737

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the $200 restitution fine imposed by the trial court on resentencing must be vacated, as section 1465.9(d) requires such a fine that is more than 10 years old to be vacated.

First Holding:

Section 1202.4 states a court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Authority:

PEN 1202.4

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. This section not only authorizes, but mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626

Elements of crime, Sentencing, Standard of review

Case 000735

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient as a matter of law to support the jury’s true findings on gang enhancements attached to counts 1 and 2, and a gang-murder special circumstance attached to count 1.

First Holding:

When considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Such evidence must be reasonable, credible and of solid value.

Authority:

People v. Renteria (2022) 13 Cal.5th 951, 970

Second Holding:

To establish a gang enhancement, the prosecution was required to prove the defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang and did so with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute requires proof of a common benefit to members of a gang where the common benefit is more than reputational. Examples of qualifying nonreputational benefits include financial gain or motivation, retaliation, targeting rivals, or witness intimidation.

Authority:

PEN 186.22

Third Holding:

The gang-murder special circumstance required the prosecution to prove that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. Thus, the special-circumstance allegation depended upon the same gang-related findings underlying the section 186.22 enhancements, including the “more than reputational” requirement in section 186.22(g).

Authority:

PEN 190.2

PEN 186.22

People v. Campbell (2023) 98 Cal.App.5th 350, 378

Fourth Holding:

Substantial evidence does not support the jury’s true findings on the gang enhancements attached to counts 1 and 2 or the gang-murder special circumstance attached to count 1. In short, the requirements of section 186.22(g) were not met. Consequently, these findings must be stricken. Based on the principle of double jeopardy, retrial is barred.

Authority:

PEN 186.22(g)

Lockhart v. Nelson (1988) 488 U.S. 33, 39

People v. Garcia (2014) 224 Cal.App.4th 519, 526 [a gang enhancement reversed for insufficient evidence may not be retried]

Fifth Holding:

Because these findings formed part of the overall sentencing package, remand for full resentencing is required.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken, a full resentencing is appropriate so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Juveniles, Probation Parole PRCS, Sentencing

Case 000734

Posted on by Gary McCurdy

Error and/or relief

The court imposed as a condition of probation: “Do not associate or communicate with your co-participant and anyone you know who is on probation, parole, or a gang member” The defendant objects to the inclusion of the phrase “or a gang member.” The condition must be modified.

First Holding:

The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. Although courts have broad discretion to set conditions of probation, the trial court’s discretion in setting the conditions of probation is not unbounded.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Lopez (1998) 66 Cal.App.4th 615, 624

Second Holding:

A term of probation is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality Conversely, a condition of probation that requires or forbids conduct that is not itself criminal is valid if that conduct is reasonably related to the crime of which the minor was convicted or to future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 48

Third Holding:

When a gang condition imposed by the juvenile court involves non-criminal conduct and prohibits a minor from engaging in otherwise legal conduct, we can uphold it only if there is a reasonable connection between the condition and the offense or between the condition and future criminality. Gang-related probation conditions are reasonably related to preventing future criminality when there is evidence of the minor’s affiliation with criminal street gangs.

In the absence of evidence of gang affiliation or association with gang members or risk of gang involvement on the minor’s part, the gang condition is not tailored to his future criminality. In this case, any connection between the minor’s offense and gang activity is speculative.

Accordingly, the condition is modified to “Do not associate or communicate with your co-participant and anyone you know who is on probation or parole.”

Authority:

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236

People v. Brandão (2012) 210 Cal.App.4th 568, 574

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000733

Posted on by Gary McCurdy

Error and/or relief

We strike the protective order, because none of the offenses involved domestic violence. We also remand to give the defendant the opportunity to present evidence on his ability to pay the restitution fine and assessments.

First Holding:

Although initially charged with crimes involving domestic violence, his guilty plea was to a crime that did not involved domestic violence as defined in section 13700 or in Family Code section 6211. His crime is not specifically listed in section 136.2(i)(1), and it does not require registration as a sex offender. Hence, the trial court was without authority at sentencing to issue the criminal protective order for the victim’s benefit under section 136.2(i)(1). As the court did not have statutory authority to issue the criminal protective order, it must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

The court imposed a $2,400 restitution fine, as well as a $2,400 parole revocation fine pursuant to section 1202.45. The court also imposed a $40 court operations assessment (sec. 1465.8(a)(1)) and a $30 court facilities assessment (Gov. Code, sec. 70373(a)(1)).

After sentencing, while this matter was still on appeal, the Supreme Court issued its opinion in Kopp. As to punitive fines, including restitution fines, the court found that due process does not require a trial court to hold an ability to pay hearing before imposing every punitive fine.

However, the court also noted that both the federal and state Constitutions prohibit excessive fines, and held that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

As to court operations assessments and court facilities assessments, which are ancillary costs, the court held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment.

Because neither defendant nor the trial court had the benefit of Kopp’s reasoning and holding at the time of the sentencing hearing, we will direct the court to give defendant an opportunity to challenge the restitution fine and the assessments under Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13, 23, 30

Duty of the court, Sentencing

Case 000731

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. We remand with directions to the trial court to recalculate the defendant’s custodial credits and to reimpose the restitution order with joint and several liability.

First Holding:

When the defendant was originally sentenced in 2008, the trial court imposed a restitution order of (more than $50,000) on all three defendants. The court ordered joint and several liability, that is, each defendant is entitled to a credit for any actual payments by the other. The trial court has the authority to order direct victim restitution paid by all defendants jointly and severally. On resentencing, the court reimposed an order for restitution in the same amount, but did not make an order of joint and several liability. To prevent the possibility of unjust enrichment—a double recovery by the victim—the restitution order must be corrected to reflect joint and several liability.

Authority:

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

People v. Leon (2004) 124 Cal.App.4th 620, 622 [if two defendants convicted of the same crime caused economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Second Holding:

The trial court erred in delegating the recalculation of the defendant’s custody credits to the Department of Corrections and Rehabilitation. The trial court should have recalculated and pronounced the number of custody credits the defendant had garnered to the date of resentencing. 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.

Authority:

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

Amelioration, Sentencing

Case 000729

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court was required to resentence the defendant under the Three Strikes Reform Act of 2012 to determine whether he should be sentenced as a second strike defendant under the Act, subject to a finding that such resentencing would present an unreasonable risk of danger to the public in the context of the Act.

First Holding:

The Three Strikes Reform Act of 2012 limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion” with a goal of eliminating disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1170.126

PEN 1172.75

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849

Second Holding:

In Guevara, the Supreme Court held that because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850

Third Holding:

Section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

On remand, the trial court should conduct an analysis of whether defendant, at the time of the hearing, continues to pose a danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17

Fines and fees, Sentencing

Case 000728

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court should have vacated the restitution fine that was imposed more than 10 years earlier. We remand the case for the court to determine the defendant’s ability to pay the parole revocation restitution fine, which is not vacated by section 1465.9(d).

First Holding:

Effective January 1, 2025, AB 1186 added subdivision (d) to section 1465.9, which provides that, 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. It does not, however, apply to the parole revocation restitution fine.

Authority:

PEN 1465.9(d)

Second Holding:

In Kopp, our Supreme Court clarified that, although fines may properly be imposed as punishment for crime, the excessive fines analysis under the state and federal Constitutions is the proper vehicle to challenge punitive fines, such as parole revocation fines. In addition, a trial court must conduct an ability to pay hearing before imposing a restitution fine (or corresponding parole revocation fine) that exceeds the statutory minimum of $300.

Authority:

People v. Kopp (2025) 19 Cal.5th 1 23, 17, 30

Elements of crime, Sentencing

Case 000727

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should not have punished the defendant for both robbery and assault with a deadly weapon.

First Holding:

We review the trial court’s decision to sentence the defendant separately for the robbery conviction and the assault with a deadly weapon conviction, for substantial evidence that he harbored a separate intent and objective for each offense. Here, there is no substantial evidence to support the trial court’s implicit finding that the defendant’s intent in assaulting the victim was separate from his intent to rob him of the item.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Second Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

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 the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Whether an assault was committed with the intent to facilitate a robbery is a fact-bound determination.

Authority:

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299

Fourth Holding:

Additionally, temporal proximity, or the lack of it, can be a relevant consideration in determining the divisibility of a course of conduct.

Authority:

People v. Nunez (2012) 210 Cal.App.4th 625, 630 [Use of hammer to facilitate carjacking could not be punished as both the robbery and assault with a deadly weapon]

Fifth Holding:

A robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.

Authority:

People v. Estes (1983) 147 Cal.App.3d 23, 27-28

Probation Parole PRCS, Sentencing, Standard of review

Case 000726

Posted on by Gary McCurdy

Error and/or relief

The court ordered appellant participate and complete general education/counseling and mental health counseling at the discretion of and as directed by probation. We find that delegating unfettered discretion to the probation department to determine whether appellant shall participate and complete education and counseling is impermissible and violates the separation of powers doctrine.

As such, we strike this probation condition and remand the matter to the trial court to consider whether or not appellant shall participate in and complete education and counseling as a condition of his probation, consistent with this opinion.

First Holding:

The People argue that appellant forfeited his probation-condition challenge by failing to object to it at the sentencing hearing. The forfeiture doctrine is a well-established principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Strong policy reasons support this rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.

The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

In re Sheena K. (2007) 40 Cal.4th 875, 880–881

Second Holding:

One exception to the forfeiture doctrine includes a facial constitutional challenge—one that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.

Appellant presents a facial challenge: the issue is whether the trial court may, under the separation of powers doctrine, delegate to the probation officer the determination of whether appellant must participate and complete education/counseling and mental health counseling.

Such a claim is not predicated on the factual details about the specific education and counseling ordered, appellant’s specific rehabilitative needs, or on the details of the programming the probation officer could determine under this condition. The forfeiture doctrine does not apply in this circumstance.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 885, 887-888

Third Holding:

The California Constitution separates the state government’s power into legislative, executive, and judicial branches and prohibits persons charged with the exercise of one power to exercise either of the others except as permitted by the California Constitution. The separation of powers doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

A trial court has broad discretion to impose probation conditions to promote rehabilitation of the defendant and to protect the public. The court also has authority to empower the probation department with authority to supervise the probation conditions.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

Authority:

PEN 1203.1(j)

PEN 1202.7

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fifth Holding:

We review a constitutional challenge to a probation condition de novo.

Authority:

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Sixth Holding:

Imposing a probation condition that subjects the defendant to the approval or direction of the probation officer is a permissible delegation. But delegating to a probation officer the decision of whether a defendant will participate in a specific form of treatment is an improper delegation of judicial authority.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–309

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903 [probation condition violates separation of powers doctrine by delegating to probation officer whether the defendant would be required to attend residential treatment/therapy/counseling program]

Seventh Holding:

Here, the court’s order for appellant to submit to education and counseling was much broader than simply leaving the details of that programming to the probation department, it gave the probation department the unlimited discretion to decide whether appellant is required to participate and complete general education and counseling at all.

Specifically, the court ordered appellant to participate and complete education/counseling and mental health counseling at the discretion of and as directed by the probation department.

This is an invalid delegation of judicial authority: although the court may delegate to probation the determinations of when and where a condition will be satisfied, the court may not delegate the decision of whether counseling or education shall be completed.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000725

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment fails to reflect the total credit for time served as of the date of resentencing. It must be corrected accordingly.

First Holding:

(Gary’s note for context: The abstract of judgment following resentencing under section 1172.75 listed only the credit for time served ordered originally in 1989. The order in this Case 000725 directs that the abstract of judgment be corrected, but in fact, it was the trial court that declined to recalculate the credit for time served, leaving it up to the Department of Corrections. The case authority cited by the court–Buckhalter–does state that the court has a duty to recalculate the credit for time served when a person is resentenced.)

The amended abstract of judgment fails to reflect the appropriate calculation of custody credits for time already served by the defendant. The judgment is affirmed subject to the clerk correcting the abstract of judgment upon remand to award the defendant [more than 13,000] days of custody credit.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Second Holding:

(Gary’s second note: It is not a win for the defendant, but there was another abstract of judgment error, this time understating the sentence that was imposed.

(The court ordered that, in addition to reflecting the revised credit for time served calculation, the abstract must reflect that the sentence was enhancement by two years for a firearm use enhancement that was omitted from the calculation of the sentence. The error omitting the enhancement was merely a repeat of the erroneous abstract more than 30 years earlier, which also failed to reflect the enhancement despite the court’s oral imposition of it.

(Though not a win for the defendant, I’m including this information because it once again demonstrates the importance of checking abstracts of judgment. While this one favored the defendant until the Court of Appeal spotted the error, many, many errors in abstracts reflect harsher treatment of the defendant than actually imposed by the court. Also, the court cited no authority for correction of the abstract, but I have listed several cases here that the court could have cited.)

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000724

Posted on by Gary McCurdy

Error and/or relief

The victim restitution award for expenses paid by the Victim Compensation Board violates the defendant’s right to due process and is reversed because the prosecution did not present bills to establish the amount paid as required pursuant to section 1202.4(f)(4)(B). The matter is remanded for the court to hold a new restitution hearing. Additionally, The abstract of judgment should be corrected to reflect the defendant was sentenced to 40 years to life (rather than 50 years to life).

First Holding:

The only evidence presented at the restitution hearing was the set of California Victim Compensation Board forms submitted by the prosecution, over the objection of counsel. No certified copies of the bills were introduced, nor was a declaration under penalty of perjury by the custodian of records. Restitution for expenses paid by the California Victim Compensation Board requires proof established by copies of bills submitted to the Board, reflecting the amount paid, pursuant to section 1202.4(f)(4)(B).

Authority:

PEN 1202.4(f)(4)(B)

Second Holding:

In California, crime victims have the right to receive restitution for losses attributable to the defendant’s actions. Indeed, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.

When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.

Authority:

Cal. Const. art. I, sec 28(b)(13)(B)

PEN 1202.4(a)(1)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320

Third Holding:

However, section 1202.4(f)(4) includes special provisions that are applicable when, as here, state funds are used to provide assistance to or on behalf of a victim.

The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation.

Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

The section 1202.4(f)(4)(B) restitution order lacks the necessary evidentiary support and must be vacated and the case remanded for a new restitution hearing.

Authority:

PEN 1202.4(f)(4)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The abstract of judgment states defendant was sentenced to a term of 50 years to life on count 1. It also reflects defendant was sentenced to 25 years on the section 12022.53(d) enhancement. However, defendant was sentenced to 15 years to life on count 1 and 25 years to life for the section 12022.53(d) firearm enhancement.

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. On remand, the trial court is instructed to prepare a corrected abstract of judgment.

Authority:

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

Amelioration, Gary Musings, Sentencing, Standard of review

Case 000723

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court was required to revisit whether the gang enhancement attached to the felony assault charge was still valid in light of changes to the gang criminal activity statutes under AB 333. When asked to strike the enhancement, the trial court stated that it did not have discretion to relitigate the facts underlying the gang enhancement. This was error.

First Holding:

Section 1172.75 rendered legally invalid any prior prison term enhancement imposed before January 1, 2020 (unless the enhancement was imposed for a prior sexually violent conviction), and it created a resentencing procedure for defendants who are currently serving sentences that include such an enhancement. Section 1172.75(c) requires a court to strike any now-invalid prior prison term enhancement and recall the defendant’s sentence.

Section 1172.75(d) provides instructions for resentencing. Among other things, the provision requires the court to resentence the defendant under current law, including any changes in law that reduce sentences.

Authority:

PEN 1172.75

Second Holding:

We review a trial court’s sentencing decisions for abuse of discretion. A court abuses its discretion when it acts arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its discretion such that it does not exercise its discretion at all. We independently review questions of statutory interpretation implicated by the trial court’s decisions.

Authority:

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

People v. Mathis (2025) 111 Cal.App.5th 359, 366

Third Holding:

Effective January 1, 2022, AB 333 made several changes to the law governing the gang enhancement.

First, AB 333 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, it changed the requirement that a gang’s members individually or collectively engage in a pattern of criminal activity to now require that any such pattern be collectively engaged in by members of the gang.

Third, it narrowed the definition of a pattern of criminal gang activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date of the currently charged offense; (2) the pattern offenses were committed by two or more gang members, as opposed to just persons; (3) the pattern offenses commonly benefitted a criminal street gang; and (4) none of the pattern offenses is the same as the currently charged offense.

Finally, 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. Examples of a common benefit that are more than reputational, under the amended provision, 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.

Authority:

PEN 186.22

Fourth Holding:

AB 333’s amendments to section 186.22 apply retroactively to the defendant’s case because they are ameliorative changes and the defendant’s case became nonfinal when the court vacated and recalled his sentence under section 1172.75.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Padilla (2022) 13 Cal.5th 152, 163

People v. Lopez (2025) 17 Cal.5th 388, 396–400

Fifth Holding:

In Stamps, the Supreme Court held that a trial court may not modify a plea agreement because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. But, as the Supreme Court explained in Doe v. Harris, the terms of the plea agreement can be affected by changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Thus, under Doe, the defendant’s 2016 plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333. Consequently, requiring the parties compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. We therefore conclude that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 701

Doe v. Harris (2013) 57 Cal.4th 64, 73-74

People v. Harrell (2023) 95 Cal.App.5th 161, 168

People v. Lopez (2021) 73 Cal.App.5th 327, 346

Extensive Gary Note, NOT In The Opinion:

Gary note: I think I first noted this in my summary for Case 000532. But effective 1/1/2025, section 1171 provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a case that originally issued a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?”

On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.”

The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.  As I stated, the “published” opinion also was wiped off the books when the Supreme Court ordered it depublished.

In the recent decision People v. Mitchell (2026) 19 Cal.5th 729, the Supreme Court indicated its awareness of section 1171–as it obviously did when it transferred the Montgomery case–but declined to apply it where the case was a direct appeal from the judgment itself, in which the appellant challenged the stipulated sentence–in which he agreed to and received an upper term before section 1170 was amended to require jury findings for upper terms.

See Mitchell’s footnote 9. Keep in mind that section 1171 was created to guide courts in the handling of newly enacted ameliorative legislation. The Supreme Court in Mitchell seems to have left open the question where the appeal is from the original judgment itself, rather than an appeal from an attempt at securing relief from ameliorative statutes. Its footnote 9 ends, “We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

And for the rest of the story, the Court of Appeal has since, in an unpublished sentence, remanded the matter to the trial court to permit the defendant to seek relief under the ameliorative provisions.  At that time, the defendant may present the argument that section 1171 bars the prosecution or the court from seeking that the plea agreement be set aside if either the prosecutor or the court is not satisfied with any resulting modification of the sentence.

Authority:

Gary has no authority, just musings.