Tag Archives: Sentencing

Discretion, Sentencing

Case: 000423

Posted on by Gary McCurdy

Error and/or relief

The minor appeals from the juvenile court’s order denying his petition for termination from the sex offender registry. He argues the prosecution failed to meet its burden of proving community safety would be significantly enhanced by requiring his continued registration and the juvenile court abused its discretion in finding otherwise. We agree and reverse the court’s order.

First Holding:

Penal Code section 290.008 sets forth the sex offender registration requirements for juvenile offenders. It requires registration as outlined in the section, unless the duty to register is terminated under section 290.5 or as otherwise provided by law. It provides for tiered periods of registration. A tier one juvenile offender is subject to registration for a minimum of five years; a tier two juvenile offender is subject to registration for a minimum of 10 years.

Authority:

PEN 290.008

Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 380

Second Holding:

It also provides procedures for juvenile offenders to petition the juvenile court to terminate their registration requirement at the expiration of their mandated minimum registration period, pursuant to section 290.5. Section 290.5 provides the procedures for adult offenders to terminate their registration requirement; the procedures are, therefore, the same, and the process begins by filing a petition for termination and serving it on the district attorney. Upon receiving a petition, the district attorney may request a hearing and present evidence regarding whether community safety would be significantly enhanced by requiring continued registration.

Authority:

PEN 290.008

PEN 290.5

Third Holding:

Section 290.5 sets forth seven factors for the court to consider when ruling on the petition. The court may base its determination on declarations, affidavits, police reports, or any other evidence submitted by the parties that is reliable, material, and relevant. If the court denies the petition, it shall set the time period after which the person can petition again for termination, which shall be at least one year from the date of the denial, but not to exceed five years.

Authority:

PEN 290.5

Fourth Holding:

When the prosecution requests a hearing on a petition, it is its burden to produce evidence and to show that requiring continued registration will appreciably increase society’s safety because the defendant is currently likely to reoffend. The trial court’s task when ruling on a petition is to assess whether the prosecution has carried its burden.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fifth Holding:

We evaluate a trial court’s decision whether to grant or deny a petition for removal from the sex offender registry for an abuse of discretion, reviewing any subsidiary factual findings based on disputed facts for substantial evidence and any subsidiary legal findings—including questions of statutory construction—de novo. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Franco (2024) 99 Cal.App.5th 184, 192

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

Sixth Holding:

The defendant committed the offenses 20 years earlier when he was only 14. Since then, he had no convictions, albeit a few arrests, the most recent involving being drunk in public. Consistent with the legislation’s purpose to cull from the registration rolls low-risk offenders so that resources could be concentrated on high-risk ones (Sen. 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. Sess.) as amended Sept. 8, 2017, pp. 12-13), it was incumbent upon the prosecution to present reasonable, credible, and solid evidence establishing a current risk of reoffense. It did not. Without evidence establishing such risk, the juvenile court abused its discretion in determining that community safety would be significantly enhanced by continued registration. Accordingly, the order of the juvenile court must be reversed.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433, 435

Immigration, Sentencing, Standard of review

Case: 000422

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s motion to vacate his guilty plea under section 1473.7. We reverse the judgment. The superior court shall enter an order vacating the defendant’s conviction pursuant to Penal Code section 1473.7(a)(1).

First Holding:

Penal Code section 1473.7 allows those no longer in custody to vacate a conviction if it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction.

Authority:

PEN 1473(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

The superior court denied the defendant’s motion. It concluded that the defendant’s prosecution had no adverse immigration consequences because the charge he pleaded to did not name cocaine as the controlled substance. It also concluded that because he had completed the Deferred Entry of Judgment (DEJ) arrangement and achieved a dismissal, there was no conviction left to vacate. The court erred. In fact, a DEJ disposition can result in adverse immigration consequences.

Authority:

PC 1203.43

Third Holding:

We apply independent review when the record indicates there was no evidentiary hearing.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Fourth Holding:

A conviction of Health and Safety Code section 11350 involving cocaine can have adverse immigration consequences. And in federal immigration tribunals and the Ninth Circuit, a police report forming the factual basis of a plea can furnish details, otherwise missing from charging documents, that allow the imposition of adverse immigration consequences.

Authority:

Lazo v. Wilkinson (9th Cir. 2021) 989 F.3d 705, 714

Matter of Milian-Dubon (B.I.A. 2010) 25 I. & N. Dec. 197, 201,

United States v. Almazan-Becerra (9th Cir. 2008) 537 F.3d 1094, 1097–1100

Suazo Perez v. Mukasey (9th Cir. 2008) 512 F.3d 1222, 1226

In re Sanudo (B.I.A. 2006) 23 I. & N. Dec. 968, 975,

Parrilla v. Gonzales (9th Cir. 2005) 414 F.3d 1038, 1044

United States v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 939–940

Fifth Holding:

Under the totality of circumstances in this conceded case, we agree with the parties that the misinformation the defendant received regarding his plea was prejudicial and that reversal to ensure prompt relief under Penal Code section 1473.7(a)(1), rather than remand, is appropriate.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321, 325–326

People v. Martinez (2013) 57 Cal.4th 555, 559

Immigration, Sentencing, Standard of review

Case: 000421

Posted on by Gary McCurdy

Error and/or relief

The superior court denied the defendant’s motion to vacate his conviction under section 1473.7 because he did not provide a declaration from his defense counsel at the time of his plea or his counsel’s case file, despite the defendant’s diligent efforts in attempting to contact his prior counsel, who had retired since representing him. After independent review, we conclude the defendant met his burden of establishing, by a preponderance of the evidence, error affecting his ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of his plea and reverse the denial of his motion.

First Holding:

Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. This includes an offense under section 273.5(a). A section 273.5 conviction is also a crime of violence under federal immigration law. If a defendant is sentenced to a term of imprisonment of at least 365 days for a crime of violence, the offense qualifies as an aggravated felony conviction. This designation carries even harsher consequences. A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. An aggravated felony conviction renders a noncitizen ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for a noncitizen found to have an aggravated felony conviction, no matter how long he has previously resided here.

Authority:

8 U.S.C. sec. 1227(a)(2)(E)(i)

8 U.S.C. sec 1227(a)(2)(A)(iii)

8 U.S.C. sec. 1228(c)

8 U.S.C. sec.1229b(a)(3), (b)(1)(C)

18 U.S.C. sec. 16(a)

People v. Villalba (2023) 89 Cal.App.5th 659, 666-667

People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904

Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083

Second Holding:

Penal Code section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. To establish a prejudicial error under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

People v. Mejia (2019) 36 Cal.App.5th 859, 862

Third Holding:

The focus of the first prong of the inquiry is on the defendant’s own error in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. There is no additional need to establish the petitioner’s mistake was caused by some third party. A defendant may show, but is not required to show, that he received ineffective assistance of counsel. The error supporting section 1473.7 relief need not be one made by defense counsel or the court but may be one made by the moving party herself if supported by contemporaneous evidence.

Authority:

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

People v. Lopez (2022) 83 Cal.App.5th 698, 713-714 [At the heart of the prejudicial error analysis is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken]

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Carrillo (2024) 101 Cal.App.5th 1, 16

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067

People v. Camacho (2019) 32 Cal.App.5th 998, 1008 [ineffective assistance of counsel not required for relief]

People v. Rodriguez (2021) 68 Cal.App.5th 301, 311

Fourth Holding:

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel or to submit contemporaneous documentation from the time of the plea. Rather, the inquiry under section 1473.7 requires consideration of the totality of the circumstances, which necessarily involves case-by-case examination of the record, and no specific kind of evidence is a prerequisite to relief. Even a court’s advisement that a guilty plea will result in immigration consequences does not preclude a petitioner from demonstrating that he did not meaningfully understand the immigration consequences of his plea. Depending on the surrounding circumstances, even a warning that deportation will result is not a categorical bar to relief. A general advisement under section 1016.5 does not establish meaningful understanding of immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320, 325

People v. Curiel (2023) 92 Cal.App.5th 1160, 1175

People v. Lopez (2021) 66 Cal.App.5th 561, 577

People v. Padron (2025) 109 Cal.App.5th 950, 962

People v. Camacho (2019) 32 Cal.App.5th 998, 1011 [petitioner may present sufficient evidence of his lack of understanding such that the court’s advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding adverse immigration consequences]

Fifth Holding:

As to the prejudice prong, a defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences and must corroborate any assertions with objective evidence. A reasonable probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311,

People v. Vivar (2021) 11 Cal.5th 510, 530

People v. Lopez (2022) 83 Cal.App.5th 698, 714

People v. Padron (2025) 109 Cal.App.5th 950, 959

People v. Soto (2022) 79 Cal.App.5th 602, 610

Sixth Holding:

We independently review the denial of a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. If the superior court heard testimony, we give particular deference to any factual findings based on the trial court’s personal observations of witnesses. But where, as here, the facts derive entirely from written declarations and other documents, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, the trial court and this court are in the same position in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 527-528

People v. Padron (2025) 109 Cal.App.5th 950, 959

Amelioration, Sentencing

Case: 000420

Posted on by Gary McCurdy

Error and/or relief

When a defendant is elgible for resentencing under section 1172.75, the court must sentence under current law, including ameliorative provisions enacted since the original sentence, including the Three Strikes Reform Act of 2012.

First Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Second Holding:

Given Penal Code section 1170.126(k) [“Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant”], the voters for the Three Strikes Reform Act of 2012 did not intend for the Reform Act petition process to be the sole avenue for defendants sentenced to an indeterminate term of imprisonment under the original Three Strikes law to seek resentencing relief. Rather, third strike defendants can also seek relief through the separate vehicle of section 1172.75 resentencing. Those defendants are nonetheless subject to the substantive requirements of section 1170.126, including its discretionary public safety override, but need not comply with the ancillary procedural requirements of that statute. They must instead fulfill the separate procedural requirements of the section 1172.75 resentencing mechanism.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 858, 861-862, 865, 869-870

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000417

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a $10 crime prevention fine under section 1202.5. It is ordered stricken. The minute order must be corrected to reflect that the resentencing proceedings were under section 1172.75, not under section 1172.6 as the minute order indicated.

First Holding:

The original imposition of the section 1202.5 crime prevention fine was unauthorized.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354 [claims of unauthorized sentencing error may be raised at any time]

Second Holding:

Under section 1202.5(a), courts are required to impose a $10 crime prevention fine on a defendant who is convicted of a theft-related offense listed in the statute. Here, the $10 crime prevention fine was unauthorized because defendant’s convictions are not among the offenses listed in section 1202.5(a). Thus, we strike the $10 crime prevention fine from defendant’s sentence.

Authority:

PEN 1202.5(a)

People v. Jefferson (2016) 248 Cal.App.4th 660, 663

Third Holding:

The minute orders refer to the proceedings as taking place pursuant to section 1172.6. As the record is clear these were resentencing proceedings pursuant to section 1172.75, this appears to be a clerical error.

[Gary note: The court did not cite any authority for the order or observation regarding the correction of the minute order, but there is authority aplenty. The court could have cited one or more of the cases I have set out below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Sentencing

Case: 000416

Posted on by Gary McCurdy

Error and/or relief

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6. We affirm the denial but remand to give the defendant the opportunity file an amended petition.

First Holding:

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6.

Authority:

PEN 1172.6

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

Second Holding:

Hearsay testimony by a police officer at a preliminary hearing could support a trial court’s finding that the petitioner did not make a prima facie case under section 1172.6.

Authority:

People v. Rodriguez (2026) 117 Cal.App.5th 1179

Appellate Principles, Equal protection, Probation Parole PRCS, Sentencing

Case: 000414

Posted on by Gary McCurdy

Error and/or relief

The court erroneously applied the doctrine of the law of the case to deny the defendant’s section 1170(d) petition in which he sought resentencing under its provisions because 50 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP).

First Holding:

In his original appeal from the 2010 conviction the Court of Appeal concluded that 50 years to life was not the functional equivalent of an LWOP sentence. The trial court denied his petition under section 1170(d) in 2023 on the basis that, under the law of the case doctrine, an appellate court had previously ruled that his sentence was not the functional equivalent of LWOP. However, years after the original appeal was decided, the Supreme Court determined that 50 years to life was the functional equivalent of LWOP.

Authority:

People v. Contreras (2018) 4 Cal.5th 349

Second Holding:

The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and this although in its subsequent consideration the court may be clearly of the opinion that the former decision is erroneous in that particular.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6

People v. Boyer (2006) 38 Cal.4th 412, 442 [The law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on rehearing of an issue is substantially the same as that upon which the appellate ruling was based.]

People v. Barragan (2004) 32 Cal.4th 236, 253

People v. Vizcarra (2015) 236 Cal.App.4th 422, 430 [The doctrines of collateral estoppel and law of the case bar a defendant from raising an issue that was raised and rejected in a prior appeal.]

Third Holding:

The law of the case doctrine generally precludes a party from obtaining appellate review of the same issue more than once in a single action. It is well settled, however, that the doctrine may be disregarded where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.

Authority:

Truck Ins. Exchange v. Kaiser Cement and Gypsum Corp. (2024) 16 Cal.5th 67, 87, fn. 6

People v. Strong (2022) 13 Cal.5th 698, 716-717 [Issue preclusion (collateral estoppel) does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.]

Fourth Holding:

Here, although defendant raised and this court previously rejected the issue of whether, as a juvenile offender, defendant’s 50-year-to-life sentence was the functional equivalent of LWOP, the law on the issue has changed significantly and is currently split.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 268 [eligibility for parole pursuant to sec. 3051 mooted any assertion that defendant’s 50-year-to-life sentence was the functional equivalent of LWOP]

People v. Contreras (2018) 4 Cal.5th 349, 359 [50 years to life for juvenile offender ineligible for sec. 3051 relief is the functional equivalent of LWOP]People v. Heard (2022) 83 Cal.App.5th 608, 624 [103 years to life is the functional equivalent of LWOP]

People v. Sorto (2024) 104 Cal.App.5th 435, 441 [140 years to life is the functional equivalent of LWOP]

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061 [107 years to life is the functional equivalent of LWOP]

People v. Munoz (2025) 110 Cal.App.5th 499, 513, dis. opn. of Feuer, J. [ majority holds 50 years to life is not the functional equivalent of LWOP, but the dissent would hold that it is], review granted June 25, 2025, S290828

People v. Baldwin (2025) 113 Cal.App.5th 978, 999 [44 years to life not functional equivalent of LWOP]

People v. Thompson (2025) 112 Cal.App.5th 1058, 1081, review granted Sept. 24, 2025, S292540 [50 years to life not functional equivalent of LWOP]

People v. Perez (2013) 214 Cal.App.4th 49, 58 [parole eligibility at 47 years of age was by no stretch of the imagination functional or de facto LWOP]

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260, review granted Sept. 17, 2025, S292070 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Isayev (2025) 113 Cal.App.5th 1117, review granted Nov. 12, 2025, S292860 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Lara (2025) 115 Cal.App.5th 484, review granted Dec. 30, 2025, S294095 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

Probation Parole PRCS, Sentencing

Case: 000412

Posted on by Gary McCurdy

Error and/or relief

The electronics search condition is invalid under Lent and must be stricken.

First Holding:

In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. The court may impose and require such reasonable conditions as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. The trial court’s discretion, although broad, nevertheless is not without limits.

Authority:

PEN 1203.1

People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121

Second Holding:

A three-prong test determines whether a probation condition is unreasonable. A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. All three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

The first Lent prong is satisfied because the record does not show a relationship between the defendant’s use of electronic devices and the offending conduct sufficient to justify the search condition. There is no information in the record that he used any kind of electronic device to commit, plan, or facilitate his offenses of molesting a child or dissuading a witness. Nor is there any mention whatsoever of his use of a mobile phone, computer, or social media account in connection with the victim or any other conduct that might be said to relate to the offenses in this case.

Authority:

People v. Castellanos (2020) 51 Cal.App.5th 267, 270, 271, 275–276 [defendant had three cell phones in his car at the time of arrest and cell phones are frequently used in drug sales]

People v. Appleton (2016) 245 Cal.App.4th 717, 719–720 [defendant met victim through social media]

Fourth Holding:

As for the second Lent prong, it goes without saying that the use of electronic devices is not criminal in and of itself.

Authority:

In re Amber K. (2020) 45 Cal.App.5th 559, 566

Fifth Holding:

The third Lent prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. It requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. Nothing in the testimony at the preliminary hearing, the probation report, or the record of the defendant’s personal history revealed anything about his electronics use that might be connected to his past crimes or potential future criminality. The defendant had no prior history of arrests, convictions, or probation, and his risk of recidivism was assessed as below average. Thus, as in Ricardo P., the burden imposed by the electronics search condition on the defendant’s privacy is substantially disproportionate to the condition’s goal” of deterring future criminality.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

In re David C. (2020) 47 Cal.App.5th 657, 663–664

Abstracts and Minutes, Sentencing

Case: 000411

Posted on by Gary McCurdy

Error and/or relief

The trial court orally sentenced appellant to “life, with the minimum parole date of 7 years” for the attempted murders in counts 7, 8, and 9. It remarked that the sentences on counts 8 and 9 were, “effectively, 7-years-to-life,” and that the sentence on each count when the firearm enhancements were included was “effectively 8-years-to-life.” The minute order reflects terms of “life plus 7 years” on these three counts, and the abstract of judgment indicates the sentence on each of these counts is “7 years to life.” The abstract of judgment and minute order must be corrected to reflect sentences of life on each of the attempted murder counts (counts 7, 8, and 9), plus one year and four months for each related firearm enhancement.

First Holding:

Section 664(a) prescribes a punishment of imprisonment in the state prison for life with the possibility of parole for the crime of attempted willful, deliberate, and premeditated murder. The minimum term a person sentenced to life must serve before parole is seven years; that minimum applies to each consecutively imposed life term.

Authority:

PEN 664(a)

Second Holding:

Although seven years to life is a common shorthand for such a sentence, it is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility. There is a minimum parole eligibility of seven years, but that is not part of the sentence that is pronounced. Thus, a more accurate statement of the sentence for attempted murder is simply life, plus any determinate enhancements. The trial court accurately stated that the sentences on counts 7, 8, and 9 were life, with the minimum parole date of 7 years, but the minute order and abstract recording the trial court’s oral pronouncement incorrectly impose a minimum term on the attempted murder sentences.

Authority:

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4

People v. Robbins (2018) 19 Cal.App.5th 660, 678

Third Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment or minute order, the oral pronouncement controls, and we may order correction of any such errors.

Authority:

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

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Fourth Holding:

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides 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. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205

Amelioration, Retroactivity, Sentencing

Case: 000408

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 should have considered the impact of AB 333 on the prior serious felony and strike convictions. We agree with the parties that AB 333 applies retroactively to the substantive gang offense conviction and all the gang-related allegations. We therefore vacate the resentencing order, reverse the substantive gang offense conviction, and vacate the findings on the gang enhancement, prior serious felony, and strike prior. On remand, the prosecution may retry all the gang-related allegations under the new law.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, SB 483 (2021−2022 Reg. Sess.) added what was later renumbered as section 1172.75 to make this change retroactive. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. 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) sets forth detailed instructions for resentencing once a sentence has been recalled.

Authority:

PEN 667.5

PEN 1172.75

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

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

Second Holding:

In 1988, the Legislature enacted section 186.20 et seq. to eradicate criminal activity by street gangs. Among other things, the Act created the substantive offense of active participation in a criminal street gang and a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with a criminal street gang.

Effective January 1, 2022, AB 333 made several changes to the criminal street gang laws. First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Also, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26.

Authority:

AB 333

PEN 186.22

People v. Valencia (2021) 11 Cal.5th 818, 828-829

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

People v. Clark (2024) 15 Cal.5th 743, 753

Third Holding:

The recall of the defendant’s sentence under section 1172.75 rendered his judgment no longer final, and the defendant was entitled to the presumption of retroactivity of ameliorative legislation under Estrada. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.

Authority:

People v. Lopez (2025) 17 Cal.5th 388

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Nasalga (1996) 12 Cal.4th 784, 792

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

People v. Mitchell (2023) 97 Cal.App.5th 1127, 1137–1142 [AB 333 applied retroactively to the defendant’s substantive gang offense conviction and enhancement]

Fourth Holding:

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It was presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Here, the defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Reversal is required unless the error is harmless pursuant to Chapman.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s sentence effectively vacates his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

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

Fifth Holding:

As the judgment is no longer final, it is also necessary for the trial court to reassess whether the prior serious felony and strike conviction were based on gang activity, and whether the conduct then would have been considered unlawful gang activity under AB 333. On remand, the prosecution may elect to retry whether the prior conviction qualifies as a serious felony applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607-608

People v. Farias (2023) 92 Cal.App.5th 619, 650–653

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000406

Posted on by Gary McCurdy

Error and/or relief

The provision in the probation order requiring the defendant to reimburse the county for public defender and probation related services must be stricken.

Holding:

Section 1465.9(a) provides that the balance of any court-imposed costs imposed under former section 987.8, authorizing public defender fees, and former section 1203.1b, authorizing probation services fees, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we will strike the portion of the probation order authorizing these fees.

Authority:

PEN 1465.9(a)

People v. Portillo (2023) 91 Cal.App.5th 577, 602-603

People v. Greeley (2021) 70 Cal.App.5th 609, 625