Tag Archives: Sentencing

Discretion, Sentencing

Case 000722

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of selling cocaine base and possessing cocaine base for sale. Under section 654, it was error to sentence the defendant on each, to run concurrently. The sentence on one of the counts must be stayed.

First Holding:

Section 654 prohibits multiple punishment for the same act or indivisible course of conduct. Before 2022, when a single act or omission was punishable under multiple provisions, the court was required to impose sentence under the provision carrying the longest potential term. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to afford trial courts discretion to impose punishment under either applicable provision.

Authority:

PEN 654(a)

People v. Hester (2000) 22 Cal.4th 290, 294

Second Holding:

Multiple punishments violate section 654 because the defendant’s possession of cocaine base for sale and the sale of cocaine base arose from an indivisible course of conduct with a single objective. Under the amended statute, the trial court has discretion to impose the sentence on either count 1 or count 2, including the option of selecting the shorter term.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Abstracts and Minutes, Fines and fees, Sentencing

Case 000719

Posted on by Gary McCurdy

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. 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. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 302, 303

People v. Smith (2001) 24 Cal.4th 849, 853

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

People v. Smith (2001) 24 Cal.4th 849, 853

Fines and fees, Sentencing

Case 000718

Posted on by Gary McCurdy

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply. We order the trial court to modify the judgment by striking the parole revocation fine.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [When there is no parole eligibility, the fine is clearly not applicable.]

People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6

Fines and fees, Sentencing

Case 000716

Posted on by Gary McCurdy

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply.

Authority:

PEN 1202.45

People v. Alvarez (2025) 18 Cal.5th 387, 484–486 [striking parole revocation fine where defendant was sentenced to death and indeterminate term]

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [parole revocation fine unwarranted where defendant was sentenced to LWOP and indeterminate term]

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

People v. Lopez (2004) 119 Cal.App.4th 132, 138

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

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

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

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

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

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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

Sentencing, Sixth Amendment

Case 000709

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing the high term for certain enhancements. Because the court did so based on aggravating circumstances not found by the jury and to which the defendant did not stipulate, it violated Penal Code section 1170.1 and the defendant’s Sixth Amendment rights. Accordingly, we vacate the sentence and remand for resentencing in a manner consistent with section 1170.1.

First Holding:

If an enhancement is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except when there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence and is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court.

Authority:

PEN 1170.1(d)(1)–(2)

People v. Lynch (2024) 16 Cal.5th 730, 768

Second Holding:

Here, the jury did not find any aggravating circumstances, nor did the defendant stipulate to any. The court nevertheless concluded that there a significant number of aggravating factors supported imposing upper term sentences on the firearm enhancements. But because the court did not specify which ones, we cannot determine whether a jury necessarily would have found these factors true. Accordingly, this error is prejudicial.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Equal protection, Fines and fees, Sentencing

Case 000708

Posted on by Gary McCurdy

Error and/or relief

Once the court found that the defendant had the inability to pay the court operations assessment fee or the court facilities assessment, it was error for the court to impose the fees but stay them until the defendant had the ability to pay.

First Holding:

If a defendant requests, a trial court must consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Because the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30, 31

Second Holding:

Here, the trial court found that the defendant was unable to pay the court operations and court facilities assessments, but instead of waiving these fees as a court would do for an indigent civil litigant, the court imposed and stayed the ancillary costs. Because the court in this case should have waived these fees upon its finding of an inability to pay, rather than stay their execution, we will strike the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [noting lack of justification for denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver]

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000706

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under Penal Code section 1172.1(a)(1) for the defendant, the trial court reduced defendant’s prison term by striking certain enhancements and re-imposing a restitution fine under section 1202.4(b). In considering the gang enhancements that were imposed in 2006, the court should have examined them to determine whether the elements met the current requirements under the amendments by AB 333 to section 186.22. Also, the restitution fine is more than 10 years old and must be vacated.

First Holding:

When defendant admitted to the enhancement in 2006, former section 186.22(b)(1) provided a sentencing enhancement for a person who committed a felony for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. As the defendant was convicted of attempted murder, carrying a sentence of a life term, the enhancement imposed a minimum of 15 years before release on parole. Without the enhancement, the defendant’s minimum eligibility would have been after seven years.

Authority:

FORMER PEN 186.22

Second Holding:

In 2021, the Legislature passed AB 333, effective January 1, 2022, which added new elements to gang enhancements in section 186.22. It narrowed the definition of criminal street gang and pattern of criminal activity, as well as what it means for an offense to have commonly benefited a street gang.

Under the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

These changes benefit defendants by raising the threshold for a true finding on a gang enhancement.

Authority:

CURRENT PEN 186.22

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

People v. Perez (2022) 78 Cal.App.5th 192, 206

Third Holding:

The defendant and the People agree that defendant’s 2006 admission to the gang enhancement on count 1 does not satisfy all the elements for a gang enhancement under the new legislation. Under our independent standard of review, we find no reason to disagree.

Authority:

People v. Rosbury (1997) 15 Cal.4th 206, 209 [de novo review applies when legality of sentence is purely a legal question]

Fourth Holding:

Because the defendant’s admission in 2006 would not satisfy the elements for a gang enhancement under current law, his past admission cannot now support beyond a reasonable doubt the additional punishment allowed by the enhancement.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082 [elements of an alleged sentence enhancement must be proven beyond a reasonable doubt]

People v. Rodriguez (2024) 103 Cal.App.5th 451, 458 [guilty plea admits of guilt beyond a reasonable doubt to every element of crime charged]

Fifth Holding:

AB 333’s substantive changes apply retroactively to all cases not yet final. When a sentence is recalled for resentencing, the matter is non-final and subject to application of ameliorative amendments, like AB 333. The record plainly supports that the defendant’s case was not final because his sentence was recalled under section 1172.1. He was therefore entitled to the benefits of AB 333. Accordingly, we reverse the true findings on the gang enhancement.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388, 396, 398–399 [recognizing a judgment becomes nonfinal when sentence is vacated and new sentence is imposed]

People v. Lopez (2020) 56 Cal.App.5th 835, 845–846 [recalled sentence not final]

Sixth Holding:

The restitution fine imposed in 2006 must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

Authority:

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

Fourth Holding:

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. The court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

Almendarez-Torres v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

People v. Lynch (2024) 16 Cal.5th 730, 768 [a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established]

Eighth Holding:

A Sixth Amendment sentencing violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

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

 

 

Appellate Principles, Effective assistance of counsel, Equal protection, Fines and fees, Sentencing

Case 000703

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing two $30 criminal conviction assessment fees and two $40 court operations assessment fees without first determining whether the defendant had the ability to pay those fees.

First Holding:

The imposition of ancillary payments raises equal protection issues. Upon request, a court must consider a defendant’s inability to pay before imposing a court operations assessment (Pen. Code, sec. 1465.8(a)(1)) or a court facilities assessment (Gov. Code, sec. 70373(a)(1)).

In making this determination, a court must allow the parties to present any relevant evidence or argument on the matter. For these reasons, we vacate the $80 court operations assessment fees and $60 criminal conviction assessment fees and remand the matter to afford the trial court an opportunity to determine in the first instance whether the defendant has the ability to pay those costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

To avoid passing upon whether the defendant’s trial attorney failed to provide constitutionally adequate assistance, we exercise our discretion to excuse the defendant’s forfeiture of his challenge to the imposition of the ancillary costs.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [noting that a reviewing court may reach the merits of a forfeited claim t forestall a defendant’s claim of ineffective assistance of counsel]