Tag Archives: Sentencing

Discretion, Sentencing

Case 000505

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence, and we remand for the trial court to hold a new sentencing hearing, at which it shall consider whether to exercise its discretion under section 1385 to dismiss the one-year enhancement it imposed under section 12022(b)(1).

First Holding:

During the sentencing of the defendant for second degree murder in which it was found true that he used a knife, the court stated it had no discretion to dismiss the enhancement allegation. Section 1385 governs a trial court’s discretion to dismiss an enhancement. Specifically section 1385(c)(1) states that the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Under section 1385(a), if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.) One enumerated mitigating circumstance is that the current offense is connected to mental illness. The defendant identifies that circumstance as potentially applicable here in light of information developed during the mental competency proceedings in this matter.

Authority:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1029

Second Holding:

The record establishes the trial court was not aware of its discretion under section 1385 to dismiss the weapon enhancement. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is not aware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. Where the trial court was not aware of its discretion to dismiss a sentencing allegation under section 1385, it abuses its discretion. We accordingly conclude the trial court abused its discretion because it was not aware of its discretion to dismiss the weapon enhancement.

Authority:

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

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

Third Holding:

When a court has not exercised its informed discretion, remand is the default unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. Here, we find no indication in the record as to how the trial court would have exercised its discretion had it known it had the discretion to dismiss the enhancement. We will therefore remand for the trial court to exercise its discretion under section 1385 regarding the weapon enhancement imposed under section 12022(b)(1).

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

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

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in part, 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 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. 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.

Authority:

PEN 654

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

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000500

Posted on by Gary McCurdy

Error and/or relief

The condition that the defendant participate in and complete, at his expense, any counseling, rehabilitation, or treatment program deemed appropriate by his probation officer is unconstitutional. The sentencing memorandum must be amended to reflect the court’s waiver of all fines and fees.

First Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine (Cal. Const., art. III, sec. 3), judicial powers may not be delegated to nonjudicial officers. 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.

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. Here, defendant’s condition does not specify the kind of program defendant might be required to complete; rather, it allows defendant’s probation officer to determine whether and in what type of program defendant could be ordered to participate. Thus, the probation condition improperly delegates judicial authority to the probation officer.

Authority:

Cal. Const. art. III sec. 3

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

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

Second Holding:

Where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

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

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to global positioning system monitoring]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided that the defendant shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer] [CONTRA] People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [Upholding probation condition which directed defendant to follow such course of conduct as the probation officer may prescribe] [CONTRA:] People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program]

Third Holding:

The sentencing memorandum should be modified to accurately reflect the court’s oral pronouncement that all applicable fines and fees be waived. We shall direct the court to correct the sentencing memorandum.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment]

People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3 [The reviewing court has the authority to correct clerical errors]

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000499

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.

First Holding:

Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Third Holding:

Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000498

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court must recaculate credits for time served.

First Holding:

Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32

People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]

Appellate Principles, Sentencing

Case 000496

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on one count under section 654.

Holding:

The defendant was convicted under two separate Penal Code sections for the same act. Section 654 provides that an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one provision. The sentence imposed for count 7 should have been stayed. The defendant requests a remand for resentencing, but we may modify the judgment ourselves to stay the count 7 sentence.

(GARY NOTE: The opinion does not mention whether it concluded that the trial court would have imposed sentence on the count carrying the longer sentence (15 years to life) rather than on the count carrying the shorter term (180 days), a choice that has been restored to the judiciary with the passage of AB 518 several years ago. But the defendant’s total sentence on the numerous counts consisted of several hundred years to life. Allowing the trial court to choose between the counts would likely not have resulted in earlier release. On the other hand, it is conceivable that on remand, the trial court might have had other options on a full resentencing.)

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

People v. Lopez (2004) 119 Cal.App.4th 132, 139

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

Case: 000495

Posted on by Gary McCurdy

Error and/or relief

On recalling the sentence under section 1172.75, the court should have stricken the balance due on the restitution fine ordered more than 10 years previously.

First Holding:

Effective January 1, 2025, Assembly Bill No. 1186 amended section 1465.9 to add subdivision (d), which provides: “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.” Here, the trial court imposed a restitution fine of $10,000 when it sentenced defendant in 2001. Because more than 10 years have elapsed since the date of imposition, we order the restitution fine vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 does not contemplate vacating parole revocation fines under section 1202.45. Section 1465.9(d) does not mention section 1202.45. When a statute is silent on a point, the courts resort to statutory interpretation. The proper interpretation of a statute is a question of law we review de novo. When interpreting a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. To determine the Legislature’s intent, we must look to the statute’s words and give them their usual and ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.

There is no support in the plain language of the statute for the premise that the Legislature intended section 1465.9 to provide relief from parole revocation fines. If the Legislature intended such a result, it could have so specified. It did not. As such, we conclude that a section 1202.45 parole revocation fine cannot be vacated under section 1465.9.

Authority:

Waterman Convalescent Hospital Inc. v. State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1439

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Snook (1997) 16 Cal.4th 1210, 1215

People v. Gonzalez (2008) 43 Cal.4th 1118, 1126

People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes]

Appellate Principles, Pleading, Sentencing, Standard of review

Case 000494

Posted on by Gary McCurdy

Error and/or relief

It was error to impose the upper term on aggravating factors there were not stipulated to or found true beyond a reasonable doubt by a jury.

First Holding:

We review the validity of a jury trial waiver under the totality of the circumstances unique to each case. Relevant circumstances can include the nature of the colloquy prior to the court’s acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver. Ultimately, the record must affirmatively show the waiver is voluntary and intelligent under the totality of the circumstances. When a defendant is denied the right to a jury trial on aggravating factors, this error is not structural but subject to harmless error analysis.

Authority:

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 167

People v. Daniels (2017) 3 Cal.5th 961, 991

People v. Collins (2001) 26 Cal.4th 297, 310

People v. Lynch (2024) 16 Cal.5th 730, 750-751, 755

Second Holding:

We review procedural due process claims de novo because the ultimate determination of procedural fairness amounts to a question of law.

Authority:

In re Jonathan V. (2018) 19 Cal.App.5th 236, 241

Third Holding:

Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. However, a defendant’s failure to object would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Also, it is well-established that an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party.

Authority:

People v French (2008) 43 Cal. 4th 36, 46

People v. Smith (2003) 31 Cal.4th 1207, 1215

Fourth Holding:

Under Apprendi, any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt. The Varnell court nevertheless held there is no due process right to notice in the accusatory pleading with respect to a sentencing factor. A sentencing factor is a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.

Because sentencing factors do not operate to increase the penalty for a crime beyond the statutory maximum, they are not required to be pleaded. Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. The California Supreme Court has yet to squarely address whether due process requires pleading and notice of aggravating factors under the most recent sentencing laws.

Authority:

In re Varnell (2003) 30 Cal.4th 1132, 1135, fn.3, 1142

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 95

People v. Lynch (2024) 16 Cal.5th 730, 769 [stating it was not necessary to decide exactly what the statute and the federal Constitution demand in the pleading and notice context]

Fifth Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. Here, the court’s findings that the defendant “has an extensive prior criminal history” and he “was on a grant of misdemeanor probation when he picked up the new charge” constitute qualitative decisions that go beyond the bare fact of the existence of the prior conviction and, absent a waiver, he was entitled to a jury trial on those factors.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085, 1086

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

Sixth Holding:

When a court improperly relies upon a factor that was not properly proven at a jury trial, the error 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 the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. If any aggravating circumstance fails to meet this standard, “the defendant is entitled to a remand for resentencing.

Authority:

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

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

Amelioration, Elements of crime, Sentencing

Case 000493

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support the trial court’s reckless indifference finding. Accordingly, we will reverse the trial court’s order denying the petition for resentencing and remand the matter with directions to grant the petition, vacate defendant’s murder conviction, and resentence him. Under the circumstances, we need not address whether defendant was a major participant or whether the trial court applied the correct standard.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule to provide, in relevant part: A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

SB 1437

PEN 189

Second Holding:

Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty of murder under California law as amended by SB 1437. The parties may rely on evidence in the record of conviction or offer new or additional evidence at the hearing. The trial court acts as an independent fact finder and determines whether the evidence establishes beyond a reasonable doubt that the defendant would be guilty of murder under the amended sections 188 and 189 and, therefore, ineligible for relief under section 1172.6.

Authority:

SB 1437

PEN 1172.6

People v. Cody (2023) 92 Cal.App.5th 87, 110

Third Holding:

Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. We must review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Montanez (2023) 91 Cal.App.5th 245, 270

Fourth Holding:

The major participation and reckless indifference requirements contained in capital case special circumstances section 190.2(d), and incorporated into the felony-murder rule by SB 1437, codify the holding of Tison and a prior decision on which it is based, Enmund, collectively place conduct on a spectrum. At one end of the spectrum is a defendant like Enmund, who planned and participated, as the getaway driver, in an armed robbery that resulted in the unplanned murder of the robbery victim and his wife.

At the other end of the spectrum are “actual killers and those who attempted or intended to kill. In between are defendants like the Tison brothers, who helped plan and carry out the escape of two convicted murderers from prison, including their father, who was serving a life sentence for killing a guard in the course of a previous escape. The Tison brothers brought a cache of weapons to prison, armed both murderers, and held at gunpoint guards and visitors alike. During their subsequent escape, they carjacked and kidnapped a family of four, took the family’s possessions, and the convicted murderers then killed all four family members. Although the Tison brothers did not kill or intend to kill, their major participation in the felony committed, combined with reckless indifference to human life, was sufficient to satisfy the Enmund culpability requirement.

Authority:

Tison v. Arizona (1987) 481 U.S. 137,

Enmund v. Florida (1982) 458 U.S. 782,

People v. Banks (2015) 61 Cal.4th 788, 794, 799, 800, 802

Fifth Holding:

Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. Although the major participation and reckless indifference elements are interrelated such that the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life, significant participation does not necessarily establish reckless indifference, which encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that SB 1437 retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient” to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

People v. Banks (2015) 61 Cal.4th 788, 801

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

Tison v. Arizona (1987) 481 U.S. 137, 153

Sixth Holding:

In determining whether defendant acted with reckless indifference, we analyze the totality of the circumstances using the following factors derived from Clark: (1) Did defendant know that a weapon would be used during the felony? (2) Was defendant present during the murder and did he have an opportunity to restrain the perpetrator or aid the victim? (3) What was the duration of the interaction between the perpetrators of the felony and the victim? (4) What was defendant’s knowledge of his confederate’s propensity for violence or likelihood of using lethal force? (5) What efforts did defendant make to minimize the risk of violence during the felony? With the foregoing factors in mind, we conclude substantial evidence does not support the trial court’s finding that defendant acted with reckless indifference to human life.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

People v. Emanuel (2025) 17 Cal.5th 867, 884-88

Duty of the court, Sentencing

Case 000492

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court must recalculate the credit for time served. The matter is remanded for the court to do so here. (The matter was complicated by the trial court awarding credit against this case for by credit earned in a separate case, making it difficult to determine how much the court credited in this particular case.)

Holding:

When a trial court resentences a defendant who is currently in custody, it must credit him with all actual days he spent in custody (whether in jail or prison) up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sentencing, Sixth Amendment, Standard of review

Case 000491

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.

First Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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.

Authority:

PEN 1170

Second Holding:

Under the Fifth and Sixth Amendments 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, not merely by a preponderance of the evidence. 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. The 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 the current statutory requirements.

If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. In other words, Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

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

Third Holding:

We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.

Authority:

PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]

People v. Scott (1994) 9 Cal.4th 331, 350

People v. Castorena (1996) 51 Cal.App.4th 558, 562

Fourth Holding:

The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, the court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 776, 778