Tag Archives: Sentencing

Sentencing

Case 000490

Posted on by Gary McCurdy

Error and/or relief

At the section 1172.75 sentence recall hearing, the court imposed a sentence longer than the original sentence, which violates section 1172.75. Remanded for a full resentencing hearing in compliance with section 1172.75.

First Holding:

Section 1172.75 makes it clear that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. Here, appellant was originally sentenced to an aggregate term of 25 years to life plus five years.

At resentencing, the trial court significantly increased appellant’s sentence when it imposed three consecutive 25-year-to-life terms, rather than concurrent terms as were previously imposed, plus three years for the great bodily injury enhancement on count 2 and a consecutive, rather than a concurrent, upper term of six years on count 3. Defendant was resentenced to an aggregate term of 75 years to life plus nine years.

Authority:

PEN 1172.75

Second Holding:

We conclude that appellant’s sentence is unauthorized since it directly violates section 1172.75(d)(1)’s proscription against imposing a longer sentence at resentencing An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case. It is well established that when the trial court pronounces a sentence which is unauthorized that sentence must be vacated and a proper sentence imposed when the mistake is brought to the attention of the reviewing court. Therefore, because defendant’s sentence is unauthorized, we vacate defendant’s sentence and remand the matter to the trial court for resentencing in compliance with section 1172.75(d).

Authority:

In re G.C. (2020) 8 Cal.5th 1119, 1130

People v. Benton (1979) 100 Cal.pp.3d 92, 102

Appellate Principles, Sentencing

Case 000486

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been stayed under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

People v. Bey (2025) 108 Cal.App.5th 144, 167

Discretion, Sentencing, Standard of review

Case 000485

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in ordering interest on the restitution award to accrue from the date of the offense.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims” in an amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.

Authority:

PEN 1202.4(f)

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider in determining victim restitution. When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.

Authority:

People v. Phu (2009) 179 Cal.App.4th 280, 283, 284

People v. Pittman (2024) 99 Cal.App.5th 1252, 1258

Third Holding:

Section 1202.4(f)(3)(G) provides that a restitution order shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. Here, there was no evidence that the victim incurred losses as early as ordered by the court. For this reason, we reverse the portion of the trial court’s restitution order concerning interest accrual and remand for the court to select an appropriate date from which interest on the restitution award accrues.

Authority:

PEN 1202.4(f)(3)(G)

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000483

Posted on by Gary McCurdy

Error and/or relief

We find insufficient evidence to support the defendant’s conviction for sexual penetration and remand for resentencing on the remaining counts.

First Holding:

Even considering the evidence in the light most favorable to the judgment, we find no evidence to support the defendant’s unlawful sexual penetration conviction. During the victim’s police interview, she made general statements describing the defendant’s conduct, but they constituted vague, euphemistic language requiring followup questions to prove the required penetration. But the officers did not ask any. The officer’s trial testimony regarding what the victim meant, based on the officer’s experience and training, did not clarify the statements. Nothing indicates that the victim ascribed the same meaning and the officer’s testimony asserted. Nor did the victim clarify the acts in her testimony. Taken together, this evidence does not constitute precise and specific testimony to prove the required penetration beyond a reasonable doubt.

Authority:

People v. Haynes (1998) 61 Cal.App.4th 1282, 1291

People v. Paz (2017) 10 Cal.App.5th 1023, 1038

People v. Jones (1990) 51 Cal.3d 294, 316 [though a child sexual crime victim need not specify precise dates, times and circumstances, she must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct]

People v. Quintana (2001) 89 Cal.App.4th 1362, 1371

Second Holding:

On this record, we must reverse the sexual penetration conviction. We strike his sentence for that count and remand for a full resentencing as to all counts so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [trial courts have jurisdiction to modify every aspect of sentence on the counts that were affirmed, including the term imposed as the principal term]

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000481

Posted on by Gary McCurdy

Error and/or relief

Denial of the petition for recall of sentence under section 1172.6 is reversed, and the matter is remanded for the court to redetermine whether petitioner acted with reckless indifference to human life, taking into consideration his youth at the time of the offense. We also conclude substantial evidence does not support the court’s finding that petitioner aided and abetted the murder with intent to kill and the denial of the petition therefore cannot be upheld on this alternative ground.

First Holding:

Although petitioner briefly argued in the superior court that his youth should be considered in the court’s analysis of whether he was a major participant in the underlying felony and acted with reckless indifference to human life, the superior court did not address this argument. Indeed, the superior court may have felt compelled to conclude, based on the state of the law at the time, that petitioner’s youth was not a relevant factor, given that petitioner was a young adult at the time he committed the offense and not a juvenile.

We continue to find there was substantial evidence for the trial court to conclude that the defendant acted with indifference of human life, but pending this appeal, there have been cases that squarely hold that the court should consider youth of a nonjuvenile in that determination.

If we do not address this issue, petitioner may be able to file a second petition for resentencing in the superior court to have the court consider his youth as part of the totality of circumstances bearing on whether he acted with reckless indifference to human life. In the interests of justice and for the sake of judicial economy, we address this argument on the merits. We conclude that petitioner is entitled to a new evidentiary hearing to apply new law relating to the effect, if any, of his youth on the court’s reckless indifference finding.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1008

Second Holding:

We review the court’s findings for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that petitioner acted with reckless indifference.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

Third Holding:

In the first stage of this appeal–before review was granted and the matter was transferred back to this court–petitioner raised the argument (that the court should take into consideration the defendant’s youth) in his reply brief for the first time. Ordinarily, we do not consider issues raised for the first time in a reply brief. As such, this argument was not addressed in our prior opinion.

Authority:

In re Luke H. (2013) 221 Cal.App.4th 1082, 1090

Fourth Holding:

During the pendency of this appeal, the appellate court in Jones addressed the relevance of youth to the reckless indifference finding in a case involving a young adult who was 20 years old at the time of the offense.

Authority:

People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

Fifth Holding:

In Oliver, the appellate court assumed, without deciding, that the trial court was required to consider the petitioner’s youth (23 years of age) in reference to the petitioner’s mental state, but held that its failure to do so was harmless under the standard of Watson

Authority:

People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 and fn. 8

People v. Watson (1956) 46 Cal.2d 818, 836

Sixth Holding:

In Pittman, the court applied the Watson standard and concluded there was a reasonable possibility the failure to consider the petitioner’s youth impacted the trial court’s decision. The court noted inferences of immaturity could be drawn from the fact that the petitioner was 21 years old when he participated in the attack with two peers who were 16 and 17 years old. Additionally, the crime suggested the participants acted impulsively, under the influence of rashness, and while intoxicated. Thus, the court determined the interests of justice were best served by remanding for the court to consider whether youth impacted the petitioner’s ability to form the requisite mental state for second degree murder.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417-418

Seventh Holding:

In Jiminez, the appellate court agreed that there had been a significant change in the law governing young adult offenders since the ruling on the first petition, and therefore the doctrines of collateral estoppel and law of the case did not apply. In this regard, the court noted that early cases addressing this issue of a petitioner’s youth applied only to juvenile offenders under the age of 18, and only to the major participant and reckless indifference findings.

Thereafter, however, the law was expanded to hold that youth was a consideration for other mental state requirements, including implied malice, and additionally expanded to include young adults who were in their late teens and early 20’s when they committed the crimes. Additionally, the Legislature had enacted similar changes to a variety of statutes to expand youth-related considerations to persons 25 years of age and younger. The court also determined that the error in failing to consider the petitioner’s age was not harmless under the Watson standard.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004

Probation Parole PRCS, Sentencing

Case 000480

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to apply Penal Code section 1170(h)(5)(A) and (B), regarding mandatory supervision, after sentencing the defendant to county jail.

First Holding:

Punishment for a conviction of possession for sale of methamphetamine is governed by section 1170(h), which provides that punishment shall be by imprisonment in county jail. Although the section 12022(c) firearm enhancement directed imprisonment in state prison, section 1170(h)(9) required the sentence to be punishable as directed by the underlying offense. Under section 1170(h)(5)(A) and (B), a court imposing a sentence under subdivision (h)(1) must suspend execution of a concluding portion of the term for a period selected at the court’s discretion, known as mandatory supervision, unless it finds, in the interest of justice, that it is not appropriate in a particular case.

This section creates a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, and, if the court denies mandatory supervision, it must state its reasons on the record. Given that the court ordered a term of imprisonment in county jail under section 1170(h), it is appropriate to remand for resentencing for consideration of mandatory supervision.

Authority:

PEN 1170(h)

Second Holding:

After the date of offense in this matter, section 12022(c)(2) was amended and now provides for imprisonment in state prison as punishment for a violation with a firearm enhancement under that section, not under section 1170(h). Applying this statute retroactively would likely violate the ex post facto clause.

Authority:

PEN 12022(c)

U.S. Const., art. I, secs. 9, 10

People v. White (2017) 2 Cal.5th 349, 360 [A statute violates the prohibition against ex post facto laws if it increases the punishment for a crime after it is committed]

Amelioration, Sentencing

Case 000477

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court failed to conduct a full resentencing because it limited resentencing to only one of the several cases consolidated into an aggregate sentence. The defendant had been sentenced in the 1990s in two separate sentencing hearings involving multiple cases. Only one of the cases was enhanced by a now invalid prior prison term enhancement. That case made him eligible for resentencing under section 1172.75. The trial court conducted a resentencing hearing under section 1172.75 on only that single case, and declined to resentence on the others. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the late 1995 aggregate sentence.

First Holding:

Section 1172.75(a) provides thatany sentence enhancement that was imposed prior to January 1, 2020, 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Once the California Department of Corrections and Rehabilitation (CDCR) identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant. Here, defendant’s sentence was subject to recall and resentencing because the CDCR identified his now invalid prison prior.

Authority:

PEN 1172.75(b), (c)

Second Holding:

On recall of his sentence, defendant was entitled to a full resentencing that included all aspects of his aggregate sentence. By its plain terms, section 1172.75 requires a full resentencing not merely that the trial court strike the newly invalid enhancements. Section 1172.75(d)(2) specifies that the court shall 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.

When a sentence is subject to recall, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall. Where there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices. This includes an aggregate prison term, which is not a series of separate, independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Walker (2021) 67 Cal.App.5th 198, 206

People v. Coddington (2023) 96 Cal.App.5th 562, 568

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

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Third Holding:

Defendant’s sentence is an aggregate prison term comprised of five separate cases. Even though defendant only referenced the one of the 1995 sentences instead of both of the 1995 sentences, the trial court mistakenly believed it was limited to resentencing defendant on the narrow portion of his sentence that included the prison prior. Defendant’s sentence contains interdependent component parts from multiple cases. Therefore, the court erred by treating the portion of the sentence with the invalid prison prior as an independent, separate term, rather than an integral part of the whole and reconsidering every aspect of the sentencing scheme as required. The trial court should have conducted a full resentencing that reconsidered sentencing choices in all five cases in the later 1995 aggregate sentence.

Authority:

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Marcus (2020) 45 Cal.App.5th 201, 214

Sentencing, Sixth Amendment

Case 000476

Posted on by Gary McCurdy

Error and/or relief

The imposition of the upper term of imprisonment violated the defendant’s Sixth Amendment right to a jury trial and was unauthorized under section 1170, subdivision (b) as he did not expressly waive the right as to the aggravating circumstances relied on by the sentencing court to justify imposing the upper term nor stipulate to their truth.

First Holding:

The court may impose a sentence exceeding the middle term only if there are circumstances in aggravation of the crime that justify the upper term. The facts underlying those aggravating circumstances must 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:

The Sixth Amendment entitles a defendant 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.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 755–767

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.]

Third Holding:

An express waiver of a federally-derived jury trial right is required even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial. That is, the right to a jury trial on aggravating circumstances, which is guaranteed by the federal constitution, may not be forfeited without an express waiver by the defendant.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

Here, appellant did not expressly waive his right to a jury trial on the aggravating circumstances and therefore has not surrendered his claim. No aggravating circumstances were pled in the complaint; as such, appellant’s plea, and his corresponding waiver of his constitutional rights, did not encompass any aggravating circumstances. A defendant does not waive his right to a jury trial on aggravating sentencing factors by pleading no contest to substantive offenses. Even if forfeiture did apply, we would nevertheless exercise our discretion to reach the issue. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right.

Authority:

People v. French (2008) 43 Cal.4th 36, 50

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]

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

Fifth Holding:

We cannot determine from this record beyond a reasonable doubt that a jury would have found every aggravating factor relied on by the trial court properly proven. Several of the factors relied on by the sentencing court were fact-specific, which a reasonable jury could disagree on. Moreover, the sentencing court relied on factual recitations in the police reports, which counsel did not stipulate to admitting into evidence for the purpose of establishing aggravating factors, and which contained hearsay. Additionally, we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775 [To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

Sixth Holding:

One court has held that the rule 4.421(c) residual clause [which was relied on in part by the trial court here, and lists as a potential factor in aggravation “Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed” exceeds the legislative delegation in section 1170.3 and thus violates the separation of powers clause of the California Constitution. It reasoned that because the 4.421(c) residual clause specifies no criteria for its use in jury factfinding, it supplies prosecutors unrestricted authority to make fundamental policy decisions on an ad hoc basis by letting prosecutors draft aggravating factors to submit to the jury not based on any statute or rule in order to expose the defendant to increased penalty. The court held that rule 4.421(c) is no longer appropriate under the current determinate sentencing law.

Authority:

Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081, 1099

Sentencing

Case 000475

Posted on by Gary McCurdy

Error and/or relief

We remand to the trial court with directions to clarify its section 654 findings for count 3 (false imprisonment). If the trial court clarifies on remand that section 654 applies, we direct it to modify the judgment to stay the sentence for count 3 and amend the abstract of judgment accordingly. We also direct the court to correct the determination of credit for time served.

First Holding:

Section 654’s applicability is reviewable on appeal even if, as here, the issue was not raised with the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. In the absence of any reference to PC 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective subject to substantial evidence review.

Authority:

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

People v. Tarris (2009) 180 Cal.App.4th 612, 626

Third Holding:

The court made comments suggesting a section 654 stay applied to the false imprisonment term at the original sentencing but was silent on the matter at resentencing. The trial court originally sentenced the defendant to a total prison term of more than 20 years. At the sentencing hearing, the court said it would impose and stay the middle-term sentence for count 3 (false imprisonment) primarily based on the fact that all of these facts are essentially running together, that there was some overlap with the other counts, as it viewed the false imprisonment as being somewhat encapsulated in the rape, witness intimidation, and domestic violence.

A few months later, the court recalled the sentence, believing the defendant had been given too harsh a sentence, and resentenced the defendant to nearly five years less. At that resentencing hearing, there was no mention of the applicability of section 654. In light of the uncertainty regarding what the trial court intended regarding a finding under section 654, it appears appropriate under these circumstances to remand the matter to permit the trial court to clarify.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 839

Fourth Holding:

The defendant is entitled to one day additional credit, because the correct calculation must include the date of arrest. Further, it is the trial court’s responsibility to calculate all credit for time served through the date of the resentencing, and the duty cannot be delegated to the custodial facility personnel.

Authority:

eople v. Kennedy (2012) 209 Cal.App.4th 385, 394

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

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing 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.

In applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

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

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

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

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

People v. Carmony (2004) 33 Cal.4th 367, 378

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Abstracts and Minutes, Fines and fees, Sentencing

Case 000470

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be amended to make clear the trial court found an inability to pay fees and fines, and to provide the correct number of prejudgment credit days.

First Holding:

At sentencing, the trial court found that the defendant did not have the ability to pay the court fees. The abstract of judgment, however, imposes a court security fee of $200 and a criminal conviction assessment of $150. We will direct the trial court to amend the abstract of judgment accordingly.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 10

Second Holding:

Based on counsel’s representations, the court awarded credit for actual days served that was 30 days less than he actually served. Therefore, the court’s minute order should be corrected to reflect the proper number of credit days, and the abstract of judgment should be amended accordingly.

[GARY NOTE: The court did not cite any authority for this correction, but there is plenty. I have listed authority the court could have cited.]

Authority:

PEN 2900.5

People v. Chilleli (2014) 225 Cal.App.4th 581, 591 [The failure to properly calculate custody and conduct credit is a jurisdictional error that can be corrected at any time]

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

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

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

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]