Tag Archives: Sentencing

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and 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. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

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

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of the Three Strikes law.

The Supreme Court concluded that 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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

Amelioration, Appellate Principles, Sentencing

Case 000698

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall under section 1172.6 on the grounds that he had previously filed a petition that was denied. Because the record demonstrates that the defendant is prima facie eligible for relief under case law that has emerged since his original petition was denied in 2020, we remand the matter to the trial court with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6(d).

First Holding:

Although the elements of collateral estoppel are satisfied, an equitable exception to that doctrine arises when there has been a significant change in the law since the initial ruling that warrants reexamination of the issue.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454

Second Holding:

In 2018, the Legislature, through SB 1437, amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. In 2021, through SB 775 the Legislature clarified that the amendments made by SB 1437 were also intended to eliminate any other theory of imputed-malice murder liability.

A defendant seeking relief under section 1172.6 must attest to the following: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder under which malice is imputed to a person based solely on that person’s participation in a crime. (2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder. (3) The petitioner could not presently be convicted of murder under current law.

Upon receipt of a facially sufficient petition, the trial court shall appoint counsel for petitioner if requested. The trial court then assesses whether the petitioner is prima facie eligible for relief. If the court determines that the petitioner has made a prima facie showing of eligibility for relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.

Authority:

PEN 1172.6

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

Third Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. The doctrine is intended to protect litigants from the burden of relitigating an identical issue with the same party or his privy while promoting judicial economy by preventing needless litigation.

Collateral estoppel has five elements.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. While satisfaction of these elements is necessary to invoke the equitable doctrine of collateral estoppel, it is not always sufficient. Even if the elements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 451-452, 454

Fourth Holding:

In denying the defendant’s earlier petition, the court stated that at no time did the defense or prosecution argue the theory of natural and probable consequences at trial. The only homicide theory the parties argued to the jury] was that the defendant was an aider and abettor of a planned assassination. Three years after that denial of the petition, Lee held that, despite the prosecution (in Lee) arguing a single theory to the jury, the instructions were not so limited and permitted the jury to find the defendant guilty on a theory not argued by the prosecution.

The Lee court did not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because it did not have the full record before it. The Lee court was therefore unwilling to conclude, based solely on the prosecution’s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice. The same reasoning applies in the instant case.

Authority:

People v. Lee (2023) 95 Cal.App.5th 1164, 1188

Fifth Holding:

Lee constitutes a significant development or clarification of the law. Because the trial court did not have the benefit of Lee when it issued its order, foreclosing a re-examination of the defendant’s arguments would be unfair.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454 [an exception to collateral estoppel is when there is a significant change in the law]

Duty of the court, Sentencing

Case 000696

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by refusing to recalculate the defendant’s credit for time served on resentencing, instead deferring to the Department of Corrections and Rehabilitation to make the calculation. The trial court was responsible for making this calculation.

First Holding:

Penal Code section 1237.1 requires that errors in the award of presentence custody credits be addressed to the sentencing court, even when the matter is pending on appeal. An erroneous credit calculation is an act in excess of the sentencing court’s jurisdiction and may be corrected by that court whenever brought to its attention.

Authority:

PEN 1237.1

People v. Wrice (1995) 38 Cal.App.4th 767, 770

People v. Jack (1989) 213 Cal.App.3d 913, 917

Second Holding:

The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing. The defendant was originally sentenced on in 2022 and was credited with 476 presentence custody credits. He was resentenced in 2025 with the same number of credits.

Where, as here, a prison term already in progress is modified, the resentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. There are [nearly 900] days between and including the original sentencing date and the resentencing date. Therefore, the defendant is entitled to actual credits of [more than 1350] days. The trial court was responsible for making this calculation.

Authority:

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

People v. Salgado (2022) 82 Cal.App.5th 376, 381

Sentencing

Case 000694

Posted on by Gary McCurdy

Error and/or relief

Where the defendant was convicted of being a felon in possession of a firearm and felony possession of ammunition, the court should have stayed the sentence on one of the counts under section 654.

First Holding:

Section 654(a), provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. This section precludes multiple punishment for a single act or omission, or an indivisible course of conduct. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Deloza (1998) 18 Cal.4th 585, 591

Neal v. State (1960) 55 Cal.2d 11, 20, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 334

Second Holding:

Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Sok (2010) 181 Cal.App.4th 88, 100

Probation Parole PRCS, Sentencing

Case 000692

Posted on by Gary McCurdy

Error and/or relief

The condition of probation requiring the minor to “report to your probation officer as directed and follow his or her orders” is unconstitutionally vague and overbroad and must be modified.

First Holding:

We review constitutional challenges to probation conditions de novo.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Second Holding:

A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Third Holding:

Courts may not delegate to probation officers the authority to set probation conditions. A probation officer has wide discretion to enforce court-ordered conditions and to give directives to a probationer, if those directives are reasonably related to previously imposed terms. The condition as drafted does not clearly demarcate the scope of the probation officer’s wide discretion to enforce the court’s conditions. To remove any ambiguity on this point, we will direct that the condition be modified to read “Report to [the probation officer] as directed and follow his/her orders related to the probation conditions imposed by the court.”

Authority:

In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373

People v. Smith (2022) 79 Cal.App.5th 897, 902 [While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.]