Tag Archives: Sentencing

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Third Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, 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

Amelioration, Sentencing

Case 000463

Posted on by Gary McCurdy

Error and/or relief

Assuming, without deciding, the preliminary hearing testimony may be considered at the prima facie stage of a section 1172.6 resentencing proceeding, it does not conclusively establish the defendant was necessarily convicted by plea under a still-valid theory. The record of conviction reflects a factual dispute as to the basis of his conviction that must be resolved at an evidentiary hearing. We reverse the trial court’s ruling, and remand for an evidentiary hearing.

First Holding:

Pursuant to SB 1437 (2017–2018 Reg. Sess.) (SB 1437), the Legislature modified accomplice liability for murder and the felony-murder rule. The modification eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The changes were meant to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The changes did not, however, affect murder liability for actual killers. SB 1437 also created a procedure under section 1172.6 to provide retroactive relief for those convicted of murder who could not presently be convicted under the law as amended.

Authority:

SB 1437

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 841

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Arellano (2024) 16 Cal.5th 457, 468

People v. Mares (2024) 99 Cal.App.5th 1158, 1166

Second Holding:

A petition that includes a declaration by petitioner that the petitioner is eligible for relief based on all the requirements of section 1172.6(a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel. A facially sufficient petition also triggers the People’s duty to submit a response and the petitioner’s right to submit a reply on the question of whether a prima facie case for relief exists. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.

Authority:

PEN 1172.6(c)

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Patton (2025) 17 Cal.5th 549, 558–559

Third Holding:

In assessing whether the petitioner has made a prima facie showing he is entitled to relief, the court may consult the record of conviction to inform its inquiry, but that inquiry is limited” as the prima facie bar was intentionally and correctly set very low. At this stage, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Fourth Holding:

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. Further, in reviewing any part of the record of conviction at the prima facie stage, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction includes a preliminary hearing transcript preceding a guilty plea.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 972

People v. Patton (2025) 17 Cal.5th 549, 563, 568

Fifth Holding:

If the petitioner makes a prima facie showing, then the trial court issues an order to show cause and holds a hearing to determine whether to vacate the … conviction and to recall the sentence and resentence the petitioner. At this hearing, evidence may be presented and ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current law.

Authority:

PEN 1172.6(c) and (d)

People v. Strong [(2022)] 13 Cal.5th 698, 709

People v. Patton (2025) 17 Cal.5th 549, 559

Sixth Holding:

Where undisputed facts in the record of conviction demonstrate the petitioner was necessarily convicted under a still-valid theory, the petitioner is ineligible for relief as a matter of law, and the petition can be dismissed at the prima facie stage.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565

People v. Delgadillo (2022) 14 Cal.5th 216, 233 [as the petitioner was the only participant in the killing, he was not convicted under an invalid theory and could not have made a prima facie showing of relief]

Seventh Holding:

Here, the trial court concluded undisputed facts in the record of conviction—namely, the plea form stipulation and firearm enhancement admission—show the defendant was necessarily convicted as an actual killer. But admission to personal use of a firearm during the commission or attempted commission of a felony did not then (in 1993), nor does it now, amount to an admission the firearm was discharged or that the user personally killed with the gun and, thus, by itself, is not an admission to being an actual killer. Personal use of a firearm includes displaying weapon in menacing manner, hitting someone with the weapon, or firing the weapon.

Authority:

PEN 1203.06(c)(2)

People v. Chambers (1972) 7 Cal.3d 666, 672, 673 [Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies; pointing a gun at the victim and demanding money was personal use under sec. 12022.5]

People v. Bland (1995) 10 Cal.4th 991, 997

People v. Cooper (2020) 54 Cal.App.5th 106, 125 [even if personal-use enhancement were found true, it does not establish ineligibility for resentencing relief under sec. 1172.6]

Elements of crime, Sentencing, Standard of review

Case 000461

Posted on by Gary McCurdy

Error and/or relief

We direct the trial court to modify the judgment to correct a sentencing error on the defendant’s sentence for attempted kidnapping.

First Holding:

We review unauthorized sentences de novo. A computational error that leads to an unauthorized sentence can be corrected at any time.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1140

People v. Turrin (2009) 176 Cal.App.4th 1200, 1205

Second Holding:

Kidnapping is punishable by three, five, or eight years in state prison. The sentence for an attempted offense is one-half of the sentence for the completed offense. Thus, attempted kidnapping would be punishable by 18 months, 30 months, or four years. However, any subordinate counts to be served consecutively are only given one-third of the middle term. Here, the trial court used count 2 (assault with a deadly weapon) as the principal count for the determinate term.

This made count 3, the attempted kidnapping, a subordinate term. Since the court imposed a consecutive sentence for this count, the court was only authorized to impose one-third of the middle term, which is 10 months. However, the court stated one-third the middle term was two years and six months. The court clearly intended to pronounce the correct sentence but miscalculated or misspoke as to the actual length of the term. The abstract of judgment reflects the incorrect calculation and should be amended to reflect 10 months for count 3.

Authority:

PEN 208

PEN 664

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

People v. Wilson (2013) 219 Cal.App.4th 500, 518 [reviewing court has authority to correct unauthorized sentence]

Third Holding:

As to his convictions and punishment for murder and robbery, section 654 prohibits punishment for both murder and the target offense when the prosecution relies only on a theory of first degree felony murder. However, if the prosecution offers an alternate theory such as premeditation, and there is evidence to support the alternate theory, then the court may properly impose separate sentences for the murder and the underlying felony.

Authority:

People v. Carter (2019) 34 Cal.App.5th 831, 841

Fourth Holding:

We use the substantial-evidence standard to assess the trial court’s factual findings, implicit or explicit, of whether there was a course of conduct with a single criminal objective. We review the trial court’s legal conclusions de novo. We look at the entire record in the light most favorable to the verdict.

Authority:

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Perry (2007) 154 Cal.App.4th 1521, 1524

Fifth Holding:

Section 654(a) prohibits multiple punishments for actions that fall within the same course of conduct in which the perpetrator had a single intent and objective. A defendant may be punished only once if all the crimes were merely incidental to or were the means of accomplishing a single objective. If a defendant had multiple, independent criminal objectives, he or she may be punished for each crime, even if the crimes had common acts or were parts of an otherwise indivisible course of conduct. The applicability of section 654 turns on whether the defendant had multiple criminal objectives, not whether an act occurred during the commission of a crime.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007

Sixth Holding:

We review instructional error de novo. We view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction impermissibly. We assume jurors are intelligent and capable of understanding and correlating instructions.

Authority:

People v. Ocegueda (2023) 92 Cal.App.5th 548, 557

Amelioration, Discretion, Sentencing

Case 000460

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for resentencing under section 1172.75 with directions that the court determine whether reduction of his Three Strikes sentence under the Three Strikes Reform Act of 2012 is appropriate.

First Holding:

Generally, a trial court’s discretionary decision whether to dismiss or strike a sentencing allegation or enhancement is reviewed for an abuse of discretion. The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. However, a trial court’s discretion must be guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.

Additionally, an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court that misunderstands the scope of its sentencing discretion cannot be said to have properly exercised that discretion. In such circumstances, the appropriate remedy is to remand for resentencing unless the record clearly indicates the court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373, 376

People v. Williams (1998) 17 Cal.4th 148, 159

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977

Paterno v. State of California (1999) 74 Cal.App.4th 68, 85

People v. Marquez (1983) 143 Cal.App.3d 797, 803

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

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

Second Holding:

Under the original Three Strikes law, a defendant with two or more prior serious or violent felony convictions would be sentenced to a life term for a current felony conviction even if the current conviction was not a serious or violent felony.

In 2012, the Reform Act was enacted under Proposition 36, amending the law to reduce the punishment prescribed for certain Three Strikes offenders. Under the Reform Act, a defendant with two or more prior serious or violent felony convictions, whose current conviction is for a nonserious or nonviolent felony, receives a doubled sentence rather than a life sentence, unless certain disqualifying factors were proven. If the petitioner satisfied the criteria for resentencing, the petitioner was resentenced as a second strike offender with a doubled term, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

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

Third Holding:

Effective January 1, 2020, SB 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to prior terms for sexually violent offenses. Effective January 1, 2022, SB 483 codified section 1172.75, which set forth the resentencing procedure, and applied retroactively to persons currently serving a term for a judgment that includes such prison priors. Where a now invalid enhancement was imposed, the court shall recall the sentence and resentence the defendant. The statute directs that the resentencing 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.

Authority:

PEN 1172.75

PEN 667.5(b)

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

Fourth Holding:

Permitting recall and resentencing of indeterminate sentences in a section 1172.75 hearing does not unconstitutionally amend section 1170.126. First, section 1170.126(k) permits resentencing of defendants subject to section 1170.126 by some alternative means and is, therefore, not the exclusive remedy for nonserious, nonviolent Three Strikes offenders. Under section 1170.126(k) defendants entitled to seek relief under section 1170.126 may access rights or remedies otherwise available. Permitting recall and resentencing of Three Strikes indeterminate sentences under section 1172.75 does not unconstitutionally amend section 1170.126 but rather, incorporates the public safety determination requirements of section 1170.126 into the resentencing process.

When a Three Strikes defendant is resentenced under section 1172.75, the trial court must determine whether resentencing them on their Three Strikes sentences under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. Accordingly, we must remand the case to the trial court for its determination on whether resentencing defendant under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If so, the court shall reimpose the indeterminate term. If defendant does not, and he is otherwise eligible under the Reform Act, the court shall resentence the defendant under the revised provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 855, 858-861, 863, 869, 878

Probation Parole PRCS, Sentencing

Case 000459

Posted on by Gary McCurdy

Error and/or relief

It was error to revoke the defendant’s probation after its term expired as a matter of law. He had been placed on five years’ probation, and just before the five years expired, the court found him in violation and ordered his suspended prison sentence executed. During his probation, the law changed, and by operation of law his probation was shortened to three years, which expired long before the events on which the probation revocation was based.

First Holding:

While appellant was serving his five-year term of probation, the Legislature amended the statute governing probation, section 1203.1. The previous version of the statute allowed the trial court to grant probation for a period of time not exceeding the maximum term for which the person could be imprisoned, or not over five years for an offense with a maximum sentence of five years or less. Under the amended version of section 1203.1, the relevant portion of which took effect January 1, 2021, the maximum term of probation a trial court may impose for most felony offenses is a period of time not exceeding two years. Appellant’s offense of conviction is one for which the trial court may now impose a maximum probation term of three years.

Authority:

PEN 1203.1

People v. Faial (2025) 18 Cal.5th 199, 207

People v. Kite (2023) 87 Cal.App.5th 986, 994-998

Second Holding:

The new limitations on the maximum term of probation in amended section 1203.1 apply to existing, nonfinal plea agreements while otherwise maintaining the remainder of the bargain. Probation terms exceeding those permitted under amended section 1203.1 effectively end by operation of law on the date of the maximum term now authorized.

Authority:

PEN 1203.1

People v. Prudholme (2023) 14 Cal.5th 961, 963, 969, 979,

People v. Faial (2025) 18 Cal.5th 199, 218

Third Holding:

Once probation ends, a court’s power is significantly attenuated. Its power to impose a sentence over the defendant ceases entirely. The collateral effect of the retroactive application of amended section 1203.1 is to undo or unravel the orders terminating appellant’s probation and ordering execution of the suspended sentence. Thus, if a probation term is shortened under amended section 1203.1, conduct that would have constituted a probation violation, but is now deemed to have occurred outside this term, may not be the basis for terminating that probation.

Authority:

PEN 1203.3(a) [court has jurisdiction to revoke probation during the term of probation]

People v. Chavez (2018) 4 Cal.5th 771, 782

People v. Faial (2025) 18 Cal.5th 199, 220

Elements of crime, Sentencing, Standard of review

Case 000458

Posted on by Gary McCurdy

Error and/or relief

The evidence showed the defendant possessed the firearm on each of the dates alleged in the information, but there was no evidence his possession of the firearm was anything but continuous over this period of time. One of the two counts must be stayed.

First Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. 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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.

Authority:

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

People v. Jackson (2016) 1 Cal.5th 269, 354

Second Holding:

A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence. The trial court has broad latitude in determining whether section 654(a) applies in a given case. Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the court could reasonably deduce from the record.

Authority:

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

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113

Third Holding:

Though the trial court did not provide specific reasoning for its decision not to stay the sentence for felon in possession of a firearm, we review the record to determine whether there exists substantial evidence in support of the court’s finding of multiple criminal intents.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

Fourth Holding:

We conclude the sentence for one of the counts for being a felon in possession of a firearm should be stayed pursuant to section 654. That is, we find no substantial evidence to support a conclusion defendant harbored multiple criminal intents in possessing the firearm on the two charged dates. To the contrary, the evidence only supported a conclusion that the gun possessed on July 11 was the same gun used in the charged shooting on July 7. However, there was no evidence defendant’s firearm possession was anything but continuous and pursuant to a single criminal objective. The prosecution did not present evidence, for example, showing defendant relinquished possession of the gun for a period between the specified dates.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 129–131 [Where no evidence was presented that the defendant did not maintain constructive possession of the gun the entire time, it could be inferred he had continuous constructive possession of the gun with a singular intent to possess the weapon as a felon, and thus was a single act with a single objective]

People v. Mason (2014) 232 Cal.App.4th 355, 366

Fifth Holding:

One of the sentences on the two counts should be stayed pursuant to section 654. Remand is necessary for the trial court to exercise its discretion in modifying defendant’s sentence.

Authority:

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

Fines and fees, Sentencing

Case 000456

Posted on by Gary McCurdy

Error and/or relief

After ten years, the unpaid balance of any restitution fines are no longer collectible and the restitution order must be vacated.

First Holding:

Section 1202.4(b) mandates that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. Section 1465.9 was amended effective January 1, 2025, to add subdivision (d) which requires that, on 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.

Authority:

PEN 1202.4(b)

PEN 1465.9

Second Holding:

The trial court’s reimposition of the fine at resentencing in 2025 did not restart the 10-year clock.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted Mar. 11, 2026, S295038 on a different issue

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

Error and/or relief

Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.

The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.

First Holding:

A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.

Authority:

PEN 1203.1b(a)

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322

Second Holding:

Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.

Authority:

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

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Third Holding:

A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.

Authority:

PEN 1203.1(j)

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

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

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

Fourth Holding:

A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.

Authority:

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

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

Fifth 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, 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.

Authority:

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

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

Sixth Holding:

A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, 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, 902-903

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 GPS monitoring.]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You 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.”]

People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]

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.]

Seventh Holding:

A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.

Authority:

PEN 1203.2(b)(1)

PEN 1203.3

In re D.N. (2022) 14 Cal.5th 202, 211

People v. Olguin (2008) 45 Cal.4th 375, 382

People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000453

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates that the defendant was convicted under the Three Strikes law, and must be corrected.

Holding:

The clerk of the superior court is directed to prepare an amended abstract of judgment by unchecking the box that the defendant was sentenced under the Three Strikes law.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 000452

Posted on by Gary McCurdy

Error and/or relief

The court imposed the fines and fees without conducting an ability to pay hearing over trial counsel’s objection. While this appeal was pending, the Supreme Court settled the question of imposition of fines and fees with regard to the ability to pay. We strike the $370 in fines and fees.

First Holding:

A defendant may challenge the imposition of a punitive fine under the excessive fines provisions of the United States and California Constitutions. Equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing court operations and facilities assessments fees as ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 29-30

Second Holding:

On this record, it would not serve the interests of justice or judicial economy to require remand. Appellant has been incarcerated for most of his adult life. Given his current sentence (55 years to life), he will presumably be incarcerated for the rest of his life. Additionally, the probation report does not indicate he has any assets or property. The court has the authority to strike the fines and fees rather than remand the matter for a hearing on the defendant’s ability to pay.

Authority:

PC 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Abstracts and Minutes, Amelioration, Sentencing

Case 000451

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of resentencing relief pursuant to Penal Code section 1172.75. He contends, and the People agree, the resentencing court erroneously relied on a previously stricken enhancement for a sexually violent offense, as well as an unalleged prior conviction for a sexually violent offense in finding defendant ineligible for resentencing. The record establishes error. We therefore reverse and remand.

First Holding:

The trial court erroneously relied on prior felony convictions to determine that the defendant was not eligible for relief under section 1172.75, because those prior convictions had previously been stricken in the appeal from the original judgment, leaving no disqualifying prior convictions in place. Section 1172.75(a) invalidates any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code.

However, a stricken enhancement cannot be a sentence enhancement that was imposed under section 1172.75(a). As noted, this court previously struck the otherwise-disqualifying section 667.5(b) enhancement stemming from defendant’s 1981 conviction. As such, it may not serve as the basis for denying resentencing relief under section 1172.75.

Authority:

PEN 667.5(b)

People v. Green (2024) 104 Cal.App.5th 365, 370

People v. Tang (2025) 109 Cal.App.5th 1003, 1007

Second Holding:

More than 30 years ago, defendant was convicted of both a disqualifying felony and robbery. However, for purposes of the current case, the prosecution only alleged a prior prison term enhancement for the 1990 robbery, not the disqualifying felony. The allegation was found true and the enhancement for the prior prison term stemming from the robbery was imposed. Because the enhancement was for robbery, the section 667.5(b) enhancement that became part of defendant’s sentence was not imposed for his conviction of a disqualifying offense as required by the plain terms of section 1172.75. Because a one-year prior prison term enhancement was not alleged, proved, or imposed for the 1990 conviction of an otherwise-disqualifying offense, it may not be used to deny defendant resentencing relief pursuant to section 1172.75.

Authority:

People v. Green (2024) 104 Cal.App.5th 365, 371

Third Holding:

In the appeal from the original judgment more than a decade ago, this court ordered defendant’s judgment modified to strike 10 of his 15 prior prison term enhancements and ordered the abstract of judgment amended to reflect the change. An amended abstract of judgment filed after the conclusion of that appeal reflected just such a change.

During the resentencing proceedings in the superior court in 2025, the court also addressed a motion by defendant to vacate his remaining restitution fines. The court granted defendant’s request pursuant to section 1465.9(b) and ordered the abstract of judgment amended. A new abstract of judgment issued in July 2025 reflected the change to defendant’s restitution; however, it also listed eight of the 10 previously stricken prior prison term enhancements. This is a clerical error. The abstract of judgment should list imposition of five 1-year enhancements—one on each count—for defendant’s prior prison term served in connection with his med-2000s petty theft conviction.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time]