Tag Archives: Sentencing

Abstracts and Minutes, Amelioration, Sentencing

Case 001144

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court did not orally reimpose the $10,000 originally imposed more than 10 years earlier. The abstract of judgment, however, reflects the $10,000 fine previously entered. The abstract of judgment must be corrected.

First Holding:

A written recording of a judgment, such as a minute order or abstract of judgment, may not modify the judgment, and where there is a discrepancy between the oral pronouncement of judgment and a written record, the oral pronouncement controls.

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Second Holding:

A restitution fine older than 10 years must be vacated, and no unpaid balance may be collected.

(Gary note: I “made up” that second holding, although it is a correct statement of the law. Appellate counsel raised the argument, but the appellate court concluded that it did not need to reach the issue. For whatever reason, the trial court did not reimpose a restitution fine at all. Thus, the sole problem was the incorrect abstract of judgment. Nonetheless, I thought it might be useful to remind readers of section 1465.9.)

Authority:

PEN 1465.9(d)

Amelioration, Sentencing, Vicarious liability

Case 001143

Posted on by Gary McCurdy

Error and/or relief

In light of Morris, it was error to deny the defendant’s motion to recall his sentence under section 1172.6 based on the court’s conclusion that he was ineligible because the defendant was an aider and abettor to the underlying felony.

Holding:

In Morris, the court specifically held that an aider and abettor must aid the actual killer in the commission of the fatal act itself, not merely the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671

Gary note:

This opinion was very short, because it was a remand from the Supreme Court’s grant of review, held pending the decision in Morris. This opinion does not discuss Morris and relies simply on its own recognition and the concession by the People that the defendant was not ineligible for consideration under section 1172.6 as a matter of law.

Though not cited by the court in this opinion, you can get the gist of Morris by the Supreme Court’s statement in Morris on page 678, “We interpret the statutory language to mean just what it says: the phrase ‘aided … or assisted the actual killer in the commission of murder in the first degree’ requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” The language it was interpreting was in section 188(a)(3), that malice “shall not be imputed to a person based solely on his or her participation in a crime.”

Under section 189(e)(2), when a person was not the actual killer, that person must have, “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.”

Amelioration, Sentencing, Sixth Amendment

Case 001142

Posted on by Gary McCurdy

Error and/or relief:

The court erred by denying defendant’s petition in violation of his constitutional right to be present at the evidentiary hearing. The order denying defendant’s petition is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing with defendant’s presence or with a valid waiver.

First Holding:

Sentencing and resentencing hearings are critical stages in a criminal proceeding. Courts have consistently held that a defendant has a right to be present at proceedings that are ‘akin to a plenary sentencing hearing. This includes proceedings necessary to determine factual questions bearing on the defendant’s eligibility for resentencing. The defendant’s presence significantly contributes to the fairness of the hearing as a matter of due process. Indeed, the court’s decision at the evidentiary hearing may well turn on disputed issues of fact about which the defendant—as a participant in the events in question—may well have had something to say.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532–534

People v. Basler (2022) 80 Cal.App.5th 46, 59

Second Holding:

If a defendant was not present at the evidentiar] hearing, the reviewing court must determine whether his or her absence was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536

Chapman v. California (1967) 386 U.S. 18, 24

Third Holding:

In line with Basler, Quan, and Jackson, we cannot say defendant’s absence from the hearing was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524,

People v. Basler (2022) 80 Cal.App.5th 46,

People v. Jackson (2025) 110 Cal.App.5th 128,

Fourth Holding:

In Basler, the court noted that the entire purpose of the resentencing hearing was for the court to consider whether to vacate the defendant’s conviction and recall the defendant’s sentence, including by reviewing the record and taking new evidence, if offered, on the issue of the defendant’s actions and mens rea.

For example, the defendant may have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence. Although the trial court may, or may not, have chosen to believe what the defendant might have said, if he said anything, the reviewing court could not conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.

Further, a defendant’s decision not to testify at trial is not dispositive on the prejudice suffered by his absence at the section 1172.6 evidentiary hearing, particularly given the new focus on a defendant’s mental state and the court’s ability to consider new or additional evidence on the point.

Authority:

People v. Basler (2022) 80 Cal.App.5th 46, 59-60

Fifth Holding:

In Quan, the court could not say beyond a reasonable doubt that depriving the defendant of the right to be present at the section 1172.6 hearing was harmless. The court noted the prosecution had the burden of establishing the defendant’s reckless indifference to life, which had an objective and subjective component. Thus, if the defendant was present, he could have addressed what he knew of his confederates willingness to kill in furtherance of their objectives, or the other relevant components of the crime.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536-537

Sixth Holding:

In Jackson, the court held remand was necessary partly because of the difficulty of evaluating trial records that are often decades old in the light of significant legal changes. The court explained that the arguments of counsel and the presence of the defendant can be critical to judges deciding these issues and to the fairness of the proceeding for the defendant. Where factual and legal issues must be resolved, a hearing enables the court to inform counsel and the parties of its tentative thoughts and allows them, in turn, to respond and potentially to present a different point of view, about both the significance of the evidence and how the law applies to it.

Authority:

People v. Jackson (2025) 110 Cal.App.5th 128, 153

Elements of crime, Retroactivity, Sentencing

Case 001141

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing the defendant for a term in prison that had not yet been enacted at the time of the crime.

First Holding:

On September 9, 2010, the Chelsea King Child Predator Prevention Act of 2010 went into effect, significantly increasing the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions.

The penalty for continuous sexual abuse of a minor under section 288.5 changed from 25 years to life from the former sentence of 15 years to life.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 237, fn. 4

In re Vaquera (2024) 15 Cal.5th 706, 713-714 [The amendment to section 667.61 added subdivision (j)(2)to increase the penalty to 25 years to life]

Second Holding:

Our state and federal Constitutions prohibit ex post facto laws. Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto.

The offenses the jury found defendant had committed against the victim necessarily occurred prior to when she turned 14 years of age prior to the effective date of Chelsea’s Law. Thus, the increased punishment under Chelsea’s Law effective on September 9, 2010, was not applicable, and the court erred in imposing a 25-year-to-life sentence. The sentence is vacated, and the matter is remanded for further proceedings.

Authority:

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Appellate Principles, Sentencing, Sufficiency of and substantial evidence

Case 001140

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support an order requiring the defendant to submit to HIV/AIDS testing.

First Holding:

The trial court erred in ordering the defendant to submit to a blood test for HIV/AIDS pursuant to section 1202.1 because there was insufficient evidence of probable cause to require the testing. The conduct was contact by the defendant’s hands only, but there was no indication in the record that the touching would transmit bodily fluids.

Authority:

PEN 1202.1

Second Holding:

Defendant did not object below to the HIV/AIDS testing order. In general, absent an objection in the trial court, a defendant forfeits appeal of any deficiency in the statutorily required finding supporting an HIV testing order pursuant to section 1202.1. However, as the People point out, because mandatory HIV/AIDS testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1117,

People v. Butler (2003) 31 Cal.4th 1119, 1123

Third Holding:

Section 1202.1 requires the trial court to order every person who is convicted of a sexual offense listed in subdivision (e) to submit to a blood test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS).

The term “sexual offense” includes lewd or lascivious conduct with a child in violation of Section 288, but the statute provides that testing shall be ordered only if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. The statute directs a court ordering such testing to note its finding on the court docket and minute order if one is prepared.

Authority:

PEN 1202.1

Fourth Holding:

A remand is warranted. Section 1202.1 is part of a broader statutory scheme of health and safety legislation intended to combat the further spread of HIV infection and promote prompt medical treatment for those already infected. Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. It would be unfair to both the victim and the public to permit evasion of the legislative directive if evidence exists to support a testing order.

Accordingly, we will vacate the HIV/AIDS testing order but remand the matter to permit a further hearing on the issue if the prosecution so requests.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128-1129