Tag Archives: Sentencing

Appellate Principles, Sentencing

Case 000743

Posted on by Gary McCurdy

Error and/or relief

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent’ felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. If a defendant’s current offense is a serious felony, the defendant is also subject to a five-year prior serious felony enhancement—a so-called ‘nickel prior’—in addition to any strike

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582

People v. Thomas (1999) 21 Cal.4th 1122, 1129,

People v. Arnett (2006) 139 Cal.App.4th 1609, 1613

Second Holding:

Penal Code section 667(a) provides that a person convicted of a serious felony who previously has been convicted of a serious felony shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. A serious felony means a serious felony listed in section 1192.7(c), which identifies 42 offenses as serious felonies, including any felony punishable by death or imprisonment in the state prison for life.

Authority:

PEN 667(a)

PEN 1192.7(c)

Third Holding:

For an offense falling within the enumerated list without any change in elements since the conviction, the question whether that conviction qualifies as a serious felony is entirely legal. But if there is a factual question of whether conduct underlying the crime qualifies the offense as a serious felony, any such facts must be tried to the same factfinder that decided the defendant’s guilt of the charged crime.

Authority:

PEN 969f(a)

People v. Kelii (1999) 21 Cal.4th 452, 456

Fourth Holding:

None of the defendants prior convictions are for offenses listed in section 1192.7(c). And though he received a life sentence because he was a third-strike offender, section 1192.7(c)(7) category requires that the offense be itself punishable by life imprisonment, without regard to application of the Three Strikes law based on defendant’s status as a recidivist.

Authority:

People v. Thomas (1999) 21 Cal.4th 1122, 1130

People v. Hernandez (2017) 10 Cal.App.5th 192, 198 [construing the ineligibility factors of the Three Strikes Reform Act of 2012–Proposition 36–depends on the nature of the offense itself, not the effect of other prior convictions on the defendant’s sentence]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1159 [construing the ineligibility factors for consideration under section 1170.91 regarding the mitigating effect of trauma incurred in the course of military service, which may even include recall of the sentence and resentencing]

Fifth Holding:

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken. We have authority to correct a sentence that is not authorized by law. But when an error affects part of a sentence, the case must be remanded for a full resentencing hearing as to all counts to permit a trial court to exercise its sentencing discretion in light of the changed circumstances. We thus remand for resentencing.

Authority:

People v. Choyce (2025) 18 Cal.5th 86, 128

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)

People v. Shaw (2020) 56 Cal.App.5th 582, 588-589

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

Fines and fees, Sentencing

Case 000742

Posted on by Gary McCurdy

Error and/or relief

The crime that the defendant pleaded guilty to is not one to which Health and Safety Code section 11372.5 applies to, so the $50 fee must be stricken.

First Holding:

Health and Safety Code section 11372.5(a) states that every person who is convicted of enumerated offenses must pay a criminal laboratory analysis fee of $50 for each separate offense. The fee only applies to the offenses listed or enumerated in section 11372.5(a).

Authority:

HSC 11372.5

People v. Myles (2016) 6 Cal.App.5th 1158, 1160

Second Holding:

Defendant pleaded no contest to an offense not listed in section 11372.5(a). Thus the trial court could not legally impose the $50 criminal laboratory analysis fee as a probation condition and the fee is, therefore, unauthorized. We therefore strike the fee.

Authority:

People v. Myles (2016) 6 Cal.App.5th 1158, 1160

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [claim that a sentence is unauthorized may be raised for the first time on appeal and corrected whenever error comes to the attention of the reviewing court]

People v. Soto (2016) 245 Cal.App.4th 1219, 1231-1233 [striking unauthorized fee on appeal]

Sentencing, Statutory interpretation

Case 000741

Posted on by Gary McCurdy

Error and/or relief

The court erred in not conducting a full resentencing on the defendant’s petition for recall under section 1172.75. Remanded for full resentencing.

First Holding:

When a defendant raises both statutory and constitutional bases for their appeal, we do not reach the constitutional grounds if the case can be resolved on statutory grounds. When a defendant appeals the denial of a Marsden motion, the core inquiry is whether the trial court’s ruling violated the defendant’s constitutional right to the effective assistance of counsel.

Authority:

Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497, 513 [a reviewing court should consider a constitutional question only where essential to the disposition of a case]

People v. Marsden (1970) 2 Cal.3d 118, 123

People v. Smith (1993) 6 Cal.4th 684, 696

Second Holding:

On the other hand, the scope of a trial court’s application of section 1172.75 is a question of statutory interpretation, which is subject to our de novo review. If that review resolves the appeal, it is dispositive.

Authority:

People v. Renteria (2023) 96 Cal.App.5th 1276, 1281–1282

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231 [finding that where statutory and constitutional claims are at issue and resolution of the statutory ground is adequate to resolve the matter, doing so is dispositive]

Third Holding:

The parties disagree about whether defendant forfeited his argument that the trial court erred by failing to conduct a full resentencing under section 1172.75. In the interests of judicial economy, to forestall an ineffective assistance of counsel habeas petition, and to avoid the constitutional issues raised by defendant regarding the performance of his trial counsel, we decline to enforce any forfeiture under the circumstances of this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

Fourth Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

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

Sixth Holding:

Where an issue on appeal requires that we determine the meaning of a statute, we review the trial court’s decision de novo. In any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. When the language of a statute is clear, we need go no further.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Scott (2014) 58 Cal.4th 1415, 1421

People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls]

Seventh Holding:

Section 1172.75 makes any sentence enhancement imposed prior to January 1, 2020, pursuant to 667.5(b) legally invalid unless it was imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code. If the court determines (through the process set forth in the statute) that the defendant’s sentence includes an invalid enhancement, it is required to recall the sentence and resentence the defendant. An eligible defendant under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [Where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Fines and fees, Sentencing

Case 000737

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the $200 restitution fine imposed by the trial court on resentencing must be vacated, as section 1465.9(d) requires such a fine that is more than 10 years old to be vacated.

First Holding:

Section 1202.4 states a 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.

Authority:

PEN 1202.4

Second 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. This section not only authorizes, but mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626

Elements of crime, Sentencing, Standard of review

Case 000735

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient as a matter of law to support the jury’s true findings on gang enhancements attached to counts 1 and 2, and a gang-murder special circumstance attached to count 1.

First Holding:

When considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Such evidence must be reasonable, credible and of solid value.

Authority:

People v. Renteria (2022) 13 Cal.5th 951, 970

Second Holding:

To establish a gang enhancement, the prosecution was required to prove the defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang and did so with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute requires proof of a common benefit to members of a gang where the common benefit is more than reputational. Examples of qualifying nonreputational benefits include financial gain or motivation, retaliation, targeting rivals, or witness intimidation.

Authority:

PEN 186.22

Third Holding:

The gang-murder special circumstance required the prosecution to prove that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. Thus, the special-circumstance allegation depended upon the same gang-related findings underlying the section 186.22 enhancements, including the “more than reputational” requirement in section 186.22(g).

Authority:

PEN 190.2

PEN 186.22

People v. Campbell (2023) 98 Cal.App.5th 350, 378

Fourth Holding:

Substantial evidence does not support the jury’s true findings on the gang enhancements attached to counts 1 and 2 or the gang-murder special circumstance attached to count 1. In short, the requirements of section 186.22(g) were not met. Consequently, these findings must be stricken. Based on the principle of double jeopardy, retrial is barred.

Authority:

PEN 186.22(g)

Lockhart v. Nelson (1988) 488 U.S. 33, 39

People v. Garcia (2014) 224 Cal.App.4th 519, 526 [a gang enhancement reversed for insufficient evidence may not be retried]

Fifth Holding:

Because these findings formed part of the overall sentencing package, remand for full resentencing is required.

Authority:

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