Tag Archives: Sentencing

Sentencing, Sixth Amendment

Case: 000387

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in using aggravating factors that were neither found true beyond a reasonable doubt by a trier of fact nor admitted by the defendant.

First Holding:

Section 1170(b)(1) through (3) provides the court may impose the upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term. As amended, section 1170(b) altered the trial court’s sentencing discretion and created a presumption against the upper term, which may be overcome only if the required facts are properly proven and the trial court concludes the term is justified. Unless a defendant stipulates to the facts, or waives his or her jury trial right, that aggravating factfinding role now resides solely with the jury The trial court may also consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 760, 768, 773

Second Holding:

A violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Accordingly, a defendant is entitled to reversal and remand unless we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt under Chapman as to every aggravating fact the trial court used to justify an upper term sentence. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

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

Eighth Amendment, Sentencing

Case: 000386

Posted on by Gary McCurdy

Error and/or relief

A court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment. We therefore remand to the trial court to conduct an inability to pay hearing as to those assessments.

First Holding:

Under Kopp, a court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

Restitution fines and parole revocation fines under sections 1202.4 and 1202.45a), respectively, are punitive fines. Court operations assessments and court facilities assessments, under section 1465.8(a)(1) and Government Code section 70373(a)(1), respectively, are ancillary costs and not punishment. As to punitive fines, subject to the Eighth Amendment, a court may impose a nonexcessive fine as punishment. therwise, an excessive fines analysis applies to punitive fines imposed in excess of the minimum. Because the trial court here imposed punitive fines in the minimum amounts of $300 and stayed the parole revocation fine, they are not subject to an inability to pay hearing, as the defendant concedes.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-15

Third Holding:

However, ancillary costs do implicate equal protection principles. The court operations and facilities assessments are ancillary costs intended to raise funds for the courts. A criminal defendant cannot avoid the imposition of these costs regardless of indigency. By contrast, an indigent civil litigant may have similar fees waived entirely. Where the Legislature has already determined that both criminal defendants and civil litigants should be charged similar amounts for the same reasons, there appears no rational basis to deny only indigent criminal defendants the ability to avoid those costs. Accordingly, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Therefore, the trial court here should have considered the defendants’s inability to pay before imposing the $40 court operations assessment under section 1465.8(a)(1) and the $30 criminal conviction assessment fee under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 18, 28-29, 30

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000385

Posted on by Gary McCurdy

Error and/or relief

The minute order and abstract of judgment erroneously indicates that the court imposed the parole revocation fine (PEN 1202.45) on the defendant, who was sentenced to a term of life without the possibility of parole. Because the parole revocation fine cannot be imposed on person sentence to LWOP, it must be stricken.

First Holding:

The trial court should not have imposed the challenged fines and respectfully request the court modify the judgment by striking them. The abstract must be corrected.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181–1182, 1185 [Section 1202.45 indicates that it is applicable to a person .whose sentence includes a period of parole]

Second Holding:

The defendant contends he is entitled to an additional day of actual presentence custody credit. The People concede he is correct. Although the defendant did not object at trial, forfeiture of sentencing only occurs when the alleged error involved an exercise of discretion. Because the calculation of credits is purely mathematical, his failure to object at trial does not preclude this court from correcting the error.

Authority:

People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139

Amelioration, Sentencing

Case: 000384

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for the trial court to determine whether the defendant’s 2010 conviction still constitutes a serious felony and strike in like of the application of AB 333.

Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 353

In re K.F. (2009) 173 Cal.App.4th 655, 660

People v. McCullough (2013) 56 Cal.4th 589, 596

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

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

People v. Flores (2020) 9 Cal.5th 371, 432

Amelioration, Retroactivity, Sentencing

Case: 000382

Posted on by Gary McCurdy

Error and/or relief

The court accepted the defendant’s admission to a single prior serious felony conviction and a prior strike conviction.These admissions were based on the defendant’s 2010 conviction for assault with a deadly weapon with a gang enhancement. The court sentenced the defendant as a second striker based on his admission that his 2010 conviction of aggravated assault with a gang enhancement constituted a strike. In light of AB 333’s modifications to the elements of PC 186.22 regarding gang criminal activity, the People concede, and we agree, that the defendant’s two-strike sentence must be vacated and the matter remanded for a possible retrial of his prior conviction allegations.

Holding:

AB 333 (2021–2022 Reg. Sess.) increased the evidentiary requirements for proving gang offenses and enhancements by amending section 186.22. The defendant’s prior convictions were based on his admission to the elements of section 186.22 as it read at the time of his plea. At that time, the prosecution was not required to prove—and the defendant did not admit—the elements newly required under AB 333. These heightened requirements apply when assessing whether pre–AB 333 convictions may be used for certain sentencing purposes.

Because the defendant’s prior convictions predated AB 333, the record does not establish they satisfy the amended statute’s more stringent requirements, and because this case is not yet final, the parties agree that the trial court’s true findings on the prior strike and serious felony enhancement must be vacated and the matter remanded for resentencing. If the prosecution elects to retry those allegations, the trial court must adjudicate them applying the elements of section 186.22 as amended by AB 333.

Authority:

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

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000381

Posted on by Gary McCurdy

Error and/or relief

The parties agree the minute order and abstract of judgment contain clerical errors regarding the imposed enhancements and should be corrected to reflect the trial court’s oral pronouncement of judgment. The court also must determine credit for time served. We agree.

First Holding:

Courts have the inherent power to correct clerical errors, either on their own motion or upon the application of the parties. Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error]

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

Second Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

Elements of crime, Sentencing

Case: 000379

Posted on by Gary McCurdy

Error and/or relief

In 2023 a jury convicted the defendant of, among other things, receiving a stolen vehicle and operating a chop shop. On appeal, the defendant seeks to vacate the former conviction because it is a lesser included offense of the latter. The People agree. We agree with the parties, reverse the conviction, and remand for resentencing.

First Holding:

In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. Where defendant is convicted of a greater and an included offense, the conviction for the included offense must be reversed.

Authority:

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. King (2000) 81 Cal.App.4th 472, 475

Second Holding:

Receiving stolen property is a lesser included offense of operating a chop shop. The elements of receiving stolen property are (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property. Operating a chop shop requires the same elements but adds the further requirement that the defendant intentionally own or operate a place in which such stolen property is altered, destroyed, disassembled, dismantled, reassembled, or stored in order to change their identity or to sell them. Accordingly, all of the elements of receiving stolen property are necessarily included in running a chop shop where, as here, it is clear from the information that the stolen property alleged to have been received is the same property, i.e., the stolen motor vehicles, that constitute the chop shop violation.

Authority:

People v. King (2000) 81 Cal.App.4th 472, 476

Third Holding:

Because we reverse one of the defendant’s convictions, we must also remand to allow the trial court to conduct a full resentencing based on the surviving convictions.

Authority:

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

Amelioration, Sentencing

Case: 000378

Posted on by Gary McCurdy

Error and/or relief

The court resentenced the defendant under section 1172.75 by striking the now-invalid prior prison term enhancements but concluded he was not eligible for further relief under the Three Strikes Reform Act of 2012. Reversed.

Holding:

Under section 1172.75, the court must resentence an eligible defendant. The resentencing must result in a lesser sentence than originally imposed unless the court is convinced by clear and convincing evidence that imposing a lesser sentence would endanger public safety. The court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Thus, the court must apply the ameliorative provisions of the Three Strikes Reform Act unless it finds that reduction would “pose an unreasonable risk of danger to public safety” as that phrase is construed in the context of Three Strikes Reform Act. If the superior court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety and the defendant is otherwise eligible under the Reform Act, the court shall resentence the defendant] pursuant to the revised penalty provisions of the Reform Act.

Authority:

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

Appellate Principles, Plea bargains, Sentencing, Sixth Amendment

Case: 000377

Posted on by Gary McCurdy

Error and/or relief

In exchange for the defendant’s plea, the People dismissed nine other counts and the parties stipulated to a sentence between the range of five and 13 years in prison. On appeal, the defendant contends the trial court prejudicially erred by imposing the upper term sentence of 13 years based on aggravating factors that he did not stipulate to and were not found true beyond a reasonable doubt at a trial. We agree and reverse the judgment and remand for resentencing. The defendant may stipulate to the factors in aggravation. If he chooses not to stipulate, he may demand a trial by jury or court, at which the prosecution must prove beyond a reasonable doubt the aggravating factors. Unless the defendant stipulates to the factors in aggravation, if the prosecution does not prove them at trial, the court must impose a sentence no greater than the middle term.

First Holding:

Although the failure to obtain a certificate of probable cause generally bars an appeal following a guilty plea, a certificate of probable cause is not required to raise on appeal a claim, such as the one the defendant presents here, regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 790–791

Second Holding:

A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. Thus, a waiver of appeal rights does not apply to possible future error, including sentencing error, that is outside the defendant’s contemplation and knowledge at the time the waiver is made.

Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. There is no dispute that when the defendant entered his plea he gave up his right to appeal any sentence stipulated in the plea agreement. Such a waiver may preclude an appellate challenge to the trial court’s imposition of a specific prison term that was stipulated in the plea agreement. What we must determine here, however, is whether the scope of such a waiver also includes a challenge to a trial court’s choice of a sentencing term from a stipulated range.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 940–941

People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662

People v. Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86

Third Holding:

Buttram is instructive on the issue of waiver of the right to appeal. In considering this issue, the court distinguished Buttram’s case from cases involving plea agreements stipulating to a specified sentence, and found persuasive the argument that a negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings, in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain.

The court further reasoned that, when the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. Finally, in determining Buttram’s appeal challenging the imposition of the maximum sentence was not precluded by his guilty plea, the court reasoned that an agreement for something other than a specified sentencing term, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 782, 785, 790–791

Fourth Holding:

Here, the defendant stipulated to a sentencing range that set both the minimum and the maximum sentence but did not specify the exact sentence to be imposed. Nothing in the plea agreement dictates the terms by which the trial court would determine what sentence to impose from within the stipulated range. And nothing in the plea agreement stipulates that the trial court, in making its sentencing decision, would not be bound by section 1170(b), or the Sixth Amendment to the United States Constitution, which limit the ability of a trial court to impose an upper term sentence absent sufficient proof of aggravating factors.

Authority:

PEN 1170(b)(1) and (2)

Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence]

Fifth Holding:

Section 1170(b) generally provides that a sentence may not exceed the middle term, except when it finds aggravating circumstances justify a higher sentence. Both section 1170(b) and the Sixth Amendment require that these aggravating factors be stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. A court does not have discretion to impose an upper term sentence unless all the aggravating factors on which it relies have been sufficiently proven.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 759 [An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial]

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

Sixth Holding:

The Courts of Appeal have split on the issue of whether a defendant, who stipulated to an upper term sentence pursuant to a plea agreement, is entitled to remand for consideration of the aggravating factors under section 1170, subdivision (b)(2), and the Supreme Court has granted review on this issue.

Gary LONG note: In this Sixth Holding, the appellate court is alluding to People v. Stamps (2020) 9 Cal.5th 685, although it does not actually mention Stamps. Stamps holds that if a defendant insists on taking advantage of ameliorative provisions in a case where the plea bargain specified the sentence, and the trial court changes the sentence based on those ameliorative provisions, either the prosecution or the court may set aside the original plea bargain entirely if not satisfied with the new sentence. But given a new statute, I wonder whether Stamps is still good law. (That is a “wonder if,” not a “statement of law.”) Effective 1/1/2025, section 1171 was enacted to give courts guidance on how to handle various amerliorative statutes.

Take a look at the excerpt from 1171(c)(3):

Penal Code section 1171(a): For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.

…

(c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.

…

(e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.

…

(f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.

On 5/18/2026, Mitchell (shown in this list of authorities relied on in the case) was decided by the Supreme Court. People v. Mitchell (2026) 19 Cal.5th 729. The Supreme Court did not rely on section 1171, but instead remanded for the procedure it outlined in Stamps–if the defendant gets what he wants, and the DA or the court is not happy with the modification, then the plea must be set aside. In its footnote 9, however, it stated,

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 … sets forth procedures governing a ‘postconviction proceeding,’ which the statute defines as ‘a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.’ … At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

I suspect the Supreme Court wanted to see how the lower courts are treating section 1171 before it chooses to weigh in. While I do not know if that IS what the Supreme Court had in mind, I think there is value in that approach from the perspective of establishing the law. When major issues are briefed by multiple attorneys in several different cases, and Courts of Appeal arrive at their decisions through their own means of arriving at a legal conclusion, it gives the broadest perspective for the Supreme Court to decide what makes the most sense. I repeat, that’s just my opinion.

I also want to point out that In People v. Montgomery (no longer a published opinion, but it was originally published at 100 Cal.App.5th 768 before the Supreme Court granted review and ultimately ordered the opinion to be depublished), the Supreme Court had before it a question on whether Stamps applied. The Court of Appeal had concluded that relief under section 1172.75 would not permit the DA or trial court from vacating the plea agreement (i.e., a NON-Stamps approach). In December 2024, just before section 1171 was to go in effect on January 1, 2025, the Supreme Court transferred the case back to the Court of Appeal in light of section 1171. Subsequently, the Court of Appeal issued an unpublished opinion in which it essentially affirmed its previous result–modification under section 1172.75 would not result in the plea being set aside in light of section 1171.

And if I may quote from Paul Harvey, “And now you know … the rest of the story.”

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same]

People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same]

People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023, S278503 [same]

Amelioration, Fines and fees, Retroactivity, Sentencing

Case: 000376

Posted on by Gary McCurdy

Error and/or relief

At the 2024 resentencing hearing under section 1172.5 pertaining to the defendant’s 2007 conviction, the court imposed a $5000 restitution fine, reducing the $10,000 restitution fine imposed in 2007. Since 10 years had lapsed since the original imposition of a restitution fine, it must be vacated.

First Holding:

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Second Holding:

Section 1465.9(d), applies retroactively to the defendant’s reopened sentence. The restitution fine was first imposed nearly 20 years ago and is now unenforceable and uncollectible under section 1465.9(d).

Authority:

In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

People v. Jennings (2019) 42 Cal.App.5th 664, 681 [SB 136’s changes to section 667.5, former subdivision (b), applied retroactively to sentences that were not final at the time the law became effective]

Elements of crime, Sentencing

Case: 000375

Posted on by Gary McCurdy

Error and/or relief

Two murders support only one special circumstance of multiple murders. We strike one of the two multiple-murder enhancements.

First Holding:

Two murders support only one multiple-murder special circumstance.

Authority:

People v. Avena (1996) 13 Cal.4th 394, 425