Tag Archives: Sentencing

Abstracts and Minutes, Sentencing

Case 000914

Posted on by Gary McCurdy

Error and/or relief

After trial, the trial court issued a criminal protective order (CPO) barring the defendant from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting him from dissuading the victim or witnesses from attending court hearings.

The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders for the safe exchange of children and court-ordered visitation.

The CPO should not include the defendant’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. The lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly.

First Holding:

Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered.

Authority:

PEN 136.2

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2(i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. In a postconviction order, the court may bar the defendant from contacting a victim of the crime, or a percipient witness to the crime. The trial court issued the challenged CPO after trial. The trial court erred by entering a pretrial order.

Authority:

PEN 136.2(i)(1) and (i)(2)

People v. Lopez (2022) 75 Cal.App.5th 227, 236-237

People v. Walts (2025) 112 Cal.App.5th 127, 143

Third Holding:

The trial court should not have included the defendant’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. However, nothing in the record indicates that the defendant’s children were victims or percipient witnesses of that crime. As such, there was no basis to include the defendant’s children as protected parties.

Authority:

PEN 136.2(i)(1)

FAM 13700(a) and (b).)

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under sec. 136.2(i)]

Fourth Holding:

The trial court expressed its intention to let the family court deal with any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.

(Gary note: The court did not cite any authority for it order regarding modifying the CPO to permit another court to consider exceptions. When the abstract of judgment or minute order does not comport with the oral pronouncement, the court certainly has the power to make corrections. I have listed some cases on that point below, but keep in mind, they deal with abstracts of judgments and minute orders, not criminal protective orders. But remember that section 1260 grants the appellate courts very broad power to amend the judgment.)

Authority:

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

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

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Racial Justice Act, Sentencing

Case 000913

Posted on by Gary McCurdy

Error and/or relief

Because the defendant failed to obtain a certificate of probable cause, we conclude that his claim under the Racial Justice Act (RJA) is not cognizable on appeal.

We agree, however, that the abstract of judgment requires correction. So we will direct the clerk of the superior court to correct the abstract of judgment and affirm.

First Holding:

The Legislature enacted the RJA in 2020, effective January 1, 2021—more than a year before the preliminary hearing in this case. Under the RJA, the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.

The defendant argues that expert testimony at the preliminary hearing exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin. Alternatively, if his RJA claim is forfeited due to counsel’s failure to object below, he argues that counsel rendered ineffective assistance. Although an RJA claim may be raised on direct appeal, the gravamen of the defendant’s RJA claim is that he should be relieved of his otherwise knowing, intelligent, and voluntary plea agreement as it was obtained in violation of the RJA.

Because his claim thus goes to the validity of his plea, it is not cognizable on appeal absent a certificate of probable cause.

When the judgment appealed from was obtained by the defendant’s plea of guilty or no contest, the sole exceptions to the requirement of a certificate are for appeals solely on noncertificate grounds postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.

Authority:

PEN 745

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694

Second Holding:

Section 1237.5’s requirement of a certificate of probable cause should be applied in a strict manner, as it lays down a condition precedent to the taking of an appeal within its scope. Its assumption is that, as a general matter, a judgment of conviction entered on a defendant’s plea of guilty or nolo contendere does not present any issue warranting relief on appeal, and hence should not be reviewed thereon.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098

Third Holding:

The defendant’s claim of ineffective assistance arises from counsel’s performance before entry of the plea, and courts have consistently held that claims of ineffective assistance deriving from counsel’s preplea acts require a certificate.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1092 [deeming counsel’s failure to request a hearing on competency a certificate issue]

People v. Moore (2024) 104 Cal.App.5th 90, 94 [claim that counsel was ineffective for failing to request pretrial mental health diversion requires certificate of probable cause]

People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245 [challenge that counsel’s preplea performance was deficient requires a certificate of probable cause]

Fourth Holding:

Nor can we find any suggestion that the Legislature intended to exempt RJA claims from the requirements of section 1237.5.

Had the Legislature intended for RJA claims to be decided on their merits whenever raised, it would not have required RJA motions to be made as soon as practicable and would have exempted such motions from the traditional rules of appellate forfeiture.

Requiring a defendant to obtain a certificate of probable cause to challenge grounds going to the legality of the proceedings after a plea is neither novel nor new, and the Legislature is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1076

People v. Frahs (2020) 9 Cal.5th 618, 634

Fifth Holding:

The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.

Thus, a trial court must issue the certificate if the defendant’s statement under section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious. If a court refuses to issue a certificate of probable cause, the defendant may seek a writ of mandate from the appellate court.

This low bar for issuance of a certificate would not hinder defendants from validly challenging their convictions based on alleged RJA violations.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 75

People v. Johnson (2009) 47 Cal.4th 668, 676

Sixth Holding:

Because the defendant did not obtain a certificate of probable cause, our review of his claims is thus limited to those issues that do not require a certificate.

Authority:

Cal. Rules of Court, rule 8.304(b)(3)

Seventh Holding:

The abstract of judgment contains a clerical error. Although the defendant admitted a firearm enhancement under section 12022.53(c), the trial court ultimately elected to impose a lesser enhancement under section 12022.53(d), as permitted in Tirado. The abstract of judgment, however, erroneously lists a section 12022.53(c) enhancement. We therefore direct the clerk of the superior court to correct the abstract of judgment.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000911

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.

(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)

First Holding:

Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.

In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Authority:

PEN 1172.1

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

Second Holding:

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.

Authority:

PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]

Third Holding:

Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.

Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]

Fourth Holding:

The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]

Fifth Holding:

(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)

Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.

Authority:

People v. Espino (2026) 20 Cal.5th 57

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

Amelioration, Sentencing

Case 000909

Posted on by Gary McCurdy

Error and/or relief

At a hearing pursuant to Penal Code section 1172.75, the court found the defendant ineligible for resentencing. Over the period during which the resentencing was being resolved, the defendant was released from prison and placed on parole. The court concluded that he was no longer eligible for relief because he was no longer serving a term of imprisonment.

The court erred in concluding that the defendant was no longer entitled to a resentencing hearing. We reverse and remand to the trial court with directions to hold a full resentencing hearing.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b), to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code. In 2021, SB 483 made this change retroactive.

It enacted what is now Penal Code section 1172.75, which declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054-1055

Second Holding:

Resentencing pursuant to section 1172.75 shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

The trial court must apply the sentencing rules of the Judicial Council as well as 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.

In addition, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

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

Third Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Fourth Holding:

Section 1172.75 requires that the defendant be incarcerated at the beginning of the process, when correctional officials identify those persons in their custody currently serving a term for a judgment that includes a now-invalid one-year prior prison term enhancement. It does not require the defendant thereafter remain incarcerated until the time of resentencing to maintain his or her eligibility for relief.

Nor is resentencing such a subsequently released defendant an empty exercise, as it can afford practical relief that includes shortening the applicable parole term. Thus, a person who has been released on parole prior to the resentencing hearing remains eligible and should still be resentenced.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057, 1061

Probation Parole PRCS, Sentencing

Case 000907

Posted on by Gary McCurdy

Error and/or relief

The trial court is directed to prepare and send a certified copy of an amended abstract of judgment to the Department of Corrections and Rehabilitation, noting that the defendant’s [more than 500] days of excess presentence custody credit are to be applied to his parole period.

First Holding:

Any excess presentence custody credits that a defendant accrues must be applied to his parole period.

Authority:

PEN 2900.5(a) and (c)

People v. Morales (2016) 63 Cal.4th 399, 405

Second Holding:

The Department of Corrections and Rehabilitation and the Board of Parole Hearings determine when a defendant is discharged from parole, and any excess credits are taken into account. In an abundance of caution, we will direct the trial court to amend the abstract of judgment to note that the defendant’s excess credits shall be applied to his parole period.

Authority:

PEN 3000(b)

PEN 3001

Cal. Code Regs., tit. 15, secs. 2515, 2345, 2535–2537

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review

Case 000906

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under section 1172.75, the trial court struck the one-year prior but otherwise declined to reduce the defendant’s sentence. The trial court did not apply the correct standard of law and therefore abused its discretion. We reverse the order.

First Holding:

SB 136 (2019–2020 Reg. Sess. amended section 667.5b) to allow courts to impose one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, SB 483 (2021–2022 Reg. Sess.) made the amendment retroactive to final cases and added what is now section 1172.75.

Section 1172.75 sets forth the process for recalling sentences and resentencing. If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 667.5(b)

PEN 1172.75

Second Holding:

Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

At a hearing under section 1172.75, the resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75(d)(2)

Third Holding:

As relevant here, SB 81 (2021–2022) effected a change in law by adding subdivision (c) to section 1385. That subdivision provides that, notwithstanding any other law, 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. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present.

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. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385(c)

Fourth Holding:

Section 1385(c) sets forth several mitigating circumstances for consideration. Two of them are relevant in this case. Under section 1385(c), absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in furtherance of justice.

This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

PEN 1385(c)

People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038

Fifth Holding:

We review a trial court’s sentencing decision under section 1172.75 for abuse of discretion and ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

We similarly review a trial court’s decision not to dismiss a sentencing enhancement for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 857

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

People v. Moine (2021) 62 Cal.App.5th 440, 449

Sixth Holding:

We reject the Attorney General’s argument that the defendant forfeited this contention because he failed to raise it below. The defendant did not have to ask the trial court to apply the correct standard of law to preserve a claim on appeal that the trial court applied an incorrect one. Rather, a defendant is entitled to sentencing decisions based on the sentencing court’s informed discretion, including one informed by the correct law. In any event, we may review any question of law involved in any ruling or order that affects the defendant’s substantial rights, even if the defendant did not object below.

(Gary note: The court proceeded to analyze the trial court’s treatment or lack thereof of facts specific to this defendant that demonstrated the abuse of discretion.)

Authority:

PEN 1259

People v. Salazar (2023) 15 Cal.5th 416, 424

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

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

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

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances are present. 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

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. One factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

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

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

People v. Myers (1999) 69 Cal.App.4th 305, 310

Amelioration, Sentencing, Standard of review, Statutory interpretation

Case 000903

Posted on by Gary McCurdy

Error and/or relief

A defendant sentenced to LWOP is not rendered ineligible for relief under section 1172.75 unless the person has been convicted of a sexually violent offense.

First Holding:

In 2021, the Legislature declared legally invalid all prior-prison-term sentencing enhancements imposed pursuant to Penal Code section 667.5(b) before January 1, 2020, except in cases involving terms for sexually violent offenses. Section 1172.75 established a procedure for resentencing individuals serving a term for a judgment that includes such enhancements.

Three years later, the Legislature amended the statute to preclude resentencing for an individual who has been convicted of a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole (LWOP).

Authority:

PEN 1172.75(f)

Second Holding:

The defendant was sentenced to LWOP, but has not been convicted of any sexually violent offense. Having examined the text and the legislative history of section 1172.75(f), we conclude the Legislature intended to exclude from resentencing only those individuals who were convicted of a sexually violent offense and sentenced to death or LWOP.

We review questions of statutory interpretation de novo. When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation.

We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided.

The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

People v. Cornett (2012) 53 Cal.4th 1261, 1265

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

People v. Robinson (2026) 120 Cal.App.5th 516, 522, review granted July 15, 2026, S297048

Third Holding:

Our colleagues in the Fifth District Court of Appeal in Robinson,recently considered how to interpret section 1172.75(f). The court first observed that the ordinary and usual usage of ‘and’ is as a conjunctive, meaning an additional thing, also, or plus.

Further, the Legislature had used the term “and” and “or” in different parts of subdivision (f), which suggested that the Legislature understood the difference between the typically conjunctive “and” and the typically disjunctive “or.” It therefore appeared the challenged portion of subdivision (f) was intended to be construed conjunctively to exclude an individual who has been convicted of a sexually violent offense and sentenced to death or a life term without the possibility of parole.

The Robinson court further noted that even if it were to assume the plain language of section 1172,75(f) was ambiguous as to whether it should be read conjunctively or disjunctively, the legislative history supported a conjunctive interpretation.

As the plain meaning of the text and the legislative history both support a narrow reading of section 1172.75(f), we agree with the court’s holding in Robinson and find that section 1172.75(f) applies only to individuals serving a sentence of death or LWOP who are also convicted of a sexually violent offense as defined by Welfare and Institutions Code section 6600(b). Because petitioner was not convicted of a sexually violent offense, he is eligible for recall and resentencing under section 1172.75.

Authority:

People v. Robinson (2026) 120 Cal.App.5th 516, 524-526, review granted July 15, 2026, S297048

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Probation Parole PRCS, Sentencing

Case 000901

Posted on by Gary McCurdy

Error and/or relief

A condition of probation must be modified, as it is not sufficiently clear on what exact conduct is proscribed.

First Holding:

Probation condition number 48 provides: “You shall not associate with any person known to you as a gang member, and you shall not frequent any area where gang members are known to congregate, or areas known for gang-related activity.” The defendant argues the terms frequent and areas known for gang-related activity are unconstitutionally vague.

Authority:

In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [probation condition that the minor not frequent any areas of gang related activity was objectionable because the verb ‘frequent’ would be especially challenging to understand; ‘frequent’ should be replaced with “visit”]

In re Victor L. (2010) 182 Cal.App.4th 902, 913–914 [probation condition prohibiting minor from being in areas known for gang-related activity was impermissibly vague in that it does not provide notice of what areas the minor may not frequent or what types of activities he must shun]

Second Holding:

Under the void for vagueness doctrine, based on the due process concept of fair warning, an order 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. The doctrine invalidates a condition of probation so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910

Third Holding:

In Victor L., we considered a similar probation condition that required the minor to stay away from areas known by him for gang-related activity. We found the condition as written, without further specificity, was not sufficiently clear to put the minor on notice of the prohibited conduct.

However, we declined to remand the matter to the trial court to reform the probation condition, observing, that to require the judge in each probation order to specify exactly which areas are forbidden to the individual gang member would impose an undue burden on the judiciary.

Instead, we elected to modify the condition of probation to provide for the probation officer to notify the minor of the areas he must avoid, as this approach was implied in law in order to avoid a claim of unconstitutional vagueness. We modified the probation term to read in relevant part, “The Minor shall not be in areas known by Minor for gang-related activity (or specified by his probation officer as involving gang-related activity).

Similarly here, we will modify the condition to read: “You shall not associate with any person known to you as a gang member, and you shall not visit any area where gang members are known by you to congregate or any area known by you for gang-related activity (or as designated by your probation officer), unless you have prior authorization from your probation officer.”

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 913, 916-918, 931-932

In re H.C. (2009) 175 Cal.App.4th 1067

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

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

Discretion, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000899

Posted on by Gary McCurdy

Error and/or relief

The electronic-data conditions are unreasonable under People v. Lent. We therefore strike them and remand for the juvenile court to consider whether to impose revised conditions. We also agree with the parties that the association condition should be modified to include a knowledge requirement.

First Holding:

When a ward of the juvenile court is placed on probation, the court may make any and all reasonable orders for the conduct of the ward, including conditions of probation that (1) are individually tailored, developmentally appropriate, and reasonable; (2) impose a burden that is proportional to the legitimate interests served by the conditions; and (3) are determined by the court to be fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. A condition of probation that is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.

Authority:

WIC 730(b)

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

Second Holding:

We review conditions of probation for an abuse of discretion, which occurs only if the condition is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances. To determine whether a probation condition is reasonable, we apply a three-part test under Lent.

A condition cannot be held invalid under Lent unless it meets all three of the following prongs: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not related to future criminality.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118-1119

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

Third Holding:

In addition to being reasonable, a probation condition must be sufficiently precise for the probationer to know what is required and for the court to determine whether the condition has been violated, or else it is void for vagueness. And when a probation condition imposes limitations on a probationer’s constitutional rights, it must closely tailor those limitations to the purpose of the condition—the person’s reformation and rehabilitation—to avoid being invalidated as unconstitutionally overbroad.

Authority:

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

Fourth Holding:

Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo.

Authority:

In re David C. (2020) 47 Cal.App.5th 657, 661

Fifth Holding:

We conclude that the conditions are invalid under Lent. As to the first prong of Lent, there is no question that restricting the use of electronics The minor’s conduct involved asking the victim for her phone number, and asked the victim to put his number in her phone contacts list–which she did, but later deleted it. These acts do not establish the requisite relationship between the challenged probation conditions and the minor’s offense (sexual battery by restraint). Generally, decisions finding a sufficient connection between electronics search conditions and an offense rely on the probationer’s use of electronic devices to facilitate the offense.

In Appleton, the defendant met the minor victim online and later sexually assaulted him. The Court of Appeal held that the nexus between the offense and the probation condition at issue was sufficient even though it was somewhat attenuated. In Flores, the Court held that there was a reasonable relationship between the condition at issue and the defendant’s drug offense because the defendant used a website and an online program to arrange drug sales through a disguised phone number. Here, in contrast, there is no evidence that electronic devices played any role in facilitating the offense.

Here, in contrast, there is no indication that the minor ever actually contacted the victim through an electronic device. Indeed, he did not even have the ability to do so, as he never obtained her contact information. Nor is there any evidence that the victim attempted to communicate with the minor after the offense. The first two prongs of Lent have been met–the condition has no relation to the criminal conduct, and it restrains otherwise lawful conduct.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 719-720

People v. Flores (2026) 118 Cal.App.5th 563, 565-566, 573

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

Sixth Holding:

The third prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, the mere fact that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct is insufficient to justify a broad electronics search condition. The electronic-data conditions burden the minor’s privacy in a manner substantially disproportionate to the claimed purposes of ensuring compliance with two of his other probation conditions (a no-contact order and prohibition from possessing sexual materials).

Authority:

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

In re David C. (2020) 47 Cal.App.5th 657, 665 and fn 4

In re Amber K. (2020) 45 Cal.App.5th 559, 567-568

Seventh Holding:

The court ordered the following probation condition: “The Minor shall not associate with minors under the age of 14, unless it is his own child, unless in the presence of a responsible adult, or associated person is approved by the Probation Department.”

A probation condition is unconstitutionally overbroad if it (1) impinges on constitutional rights, and (2) is not tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the probationer’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

The restriction is not unreasonable, but it must be tailored to require the minor’s express knowledge that the minor is under the age of 14. Generally speaking, if a probation condition prohibits a probationer from associating with a certain group of people, the condition is unconstitutionally vague unless it also requires that the probationer know a given person is in that group. Here, the minor may not reasonably know that an individual is under 14 years of age.

Thus, we modify the association condition to read: “The Minor shall not associate with minors whom he knows or reasonably should know are under the age of 14, unless it is his own child, unless he is in the presence of a responsible adult, or unless the associated person is approved by the Probation Department.”

Authority:

People v. Gonsalves (2021) 66 Cal.App.5th 1, 8–9

People v. Bray (2025) 112 Cal.App.5th 494, 503

People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [modifying condition prohibiting association with people under age 18].