Tag Archives: Sentencing

Fines and fees, Retroactivity, Sentencing

Case: 000117

Posted on by Gary McCurdy

Error and/or relief

The trial court’s judgment is modified to vacate any portions of the probation related fees imposed by the trial court as part of probation condition No. 14 that remained unpaid as of July 1, 2021.

First Holding:

AB 1869 (2019-2020 Reg. Sess.) repealed the authority to collect various fees. The bill makes the unpaid balance of these fees unenforceable, uncollectible, and requires that any portion of a judgment imposing such fees be vacated.

Authority:

PEN 1465.9

Second Holding:

The defendant is entitled to the retroactive application of these ameliorative changes.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 680

People v. Clark (2021) 67 Cal.App.5th 248, 258

Abstracts and Minutes, Sentencing

Case: 000114

Posted on by Gary McCurdy

Error and/or relief

We conclude that the abstract of judgment must be modified to accurately reflect the defendant’s presentence custody credits and his sentence on the attempted murder count. We accordingly modify the judgment to correct these sentencing errors and affirm the judgment as modified.

First Holding:

While a defendant sentenced to life in prison with the possibility of parole becomes eligible for parole after serving seven years, the correct sentence to be imposed remains life with the possibility of parole, plus any determinate enhancements. The abstract of judgment, which currently describes the sentence on the attempted murder with premeditation and deliberation as “seven years to life,” must be corrected accordingly. [Gary note: The court did not provide its authority for ordering that the abstract of judgment be corrected, but there are many cases it could have cited. I have listed some below, which were not in the opinion but support the correction.]

Authority:

PEN 3046(a)(1)

PEN 664(a)

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 [shorthand pronouncement of seven years to life where statutory term is life with the possibility of parole is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility]

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

Second Holding:

The trial court miscalculated the credit for time served. The defendant is entitled to three additional days, and the abstract of judgment must be modified accordingly. [GARY NOTE: The court did not provide any authority for this correction, most likely because it is so obvious that it must be corrected. Authorities supporting the court’s order (but not cited by the court) could include those I set forth below, among others.]

Authority:

PEN 2900.5

People v. Smith (1989) 211 Cal.App.3d 523, 527

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

Case: 000106

Posted on by Gary McCurdy

Error and/or relief

The trial court modified the defendant’s sentence only to the extent required under sections 1172.75 and 1170.18, but otherwise left the balance intact, finding that the defendant remained a danger to the public. The case is remanded for the trial court to calculate the days of actual custody and to correct the abstract of judgment.

First Holding:

Because the sentence was modified under PC 1172.75, the trial court erred in not calculating the actual days in custody.

Authority:

PEN 2900.1

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

Second Holding:

We review the trial court’s finding that imposing a lesser sentence would endanger public safety under the clear and convincing evidence standard.

Authority:

PEN 1172.75(d)(1)

Third Holding:

The clear and convincing evidence standard requires the party with the burden of proof to convince the trier of fact that it is highly probable the facts which he asserts are true.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Fourth Holding:

The narrow definition of danger to public safety under PC 1170.18 does not apply to the undefined term of the Three Strikes Reform Act of 2012. [GARY NOTE: after the opinion in this case 000106 was filed, the Supreme Court ruled in Guevara that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable risk to public safety” within the meaning of section 1170.126 (enacted by initiative) in order to reconcile the application of section 1172.75 (enacted by the Legislature) to those who would otherwise qualify but are serving a sentence under the Three Strikes Law (an initiative provision).]

Authority:

People v. Valencia (2017) 3 Cal.5th 374, 374-375

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

Fifth Holding:

The abstract of judgment incorrectly reflects a determinate term of 14 years instead of 10 years, and it must be corrected. [GARY NOTE: The court did not cite authority, most likely because the error and solution are obvious. There are many relevant cases supporting this holding, some of which I have set out below.]

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

People v. Price (2004) 120 Cal.App.4th 224, 242

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

People v. Jones (2012) 54 Cal.4th 1, 89

Elements of crime, Sentencing

Case: 000105

Posted on by Gary McCurdy

Error and/or relief

The section 12022.7(a) enhancement, which was stayed at sentencing, must instead be stricken under subdivision (g) of the statute because infliction of great bodily injury is an element of battery with serious bodily injury; and the trial court improperly limited the defendant’s presentence conduct credits to 15 percent of actual days served.

First Holding:

A sentence cannot be enhanced by section 12022.7 for infliction of bodily injury if that is an element of the underlying offense.

Authority:

PEN 12022.7(g)

Second Holding:

Great bodily injury is an element of battery with serious bodily injury.

Authority:

People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375–1376

People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550

People v. Johnson (2016) 244 Cal.App.4th 384, 391

People v. Arnett (2006) 139 Cal.App.4th 1609, 1616

People v. Hawkins (2003) 108 Cal.App.4th 527, 531

People v. Beltran (2000) 82 Cal.App.4th 693, 696–697

Third Holding:

Serious bodily injury is the essential equivalent of great bodily injury.

Authority:

People v. Burroughs (1984) 35 Cal.3d 824, 831

People v. Sloan (2007) 42 Cal.4th 110, 117 [noting that a true finding on a great bodily injury enhancement would effectively establish the elements of the charged battery with serious bodily injury]

Fourth Holding:

Section 246 is not a violent felony per se so section 2833.1 does not limit behavior credit to 15 percent.

Authority:

In re Cabrera (2023) 14 Cal.5th 476, 491E

Appellate Principles, Sentencing, Standard of review

Case: 000104

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.

First Holding:

Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law. This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

Authority:

PEN 654

People v. Corpening (2016) 2 Cal.5th 307, 309

People v. Perez (1979) 23 Cal.3d 545, 551

Second Holding:

Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal. However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Goode (2015) 243 Cal.App.4th 484, 493

People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim]

Third Holding:

A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.

Authority:

People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11

People v. Kwok (1998) 63 Cal.App.4th 1236, 1253

Appellate Principles, Sentencing

Case: 000103

Posted on by Gary McCurdy

Error and/or relief

We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654. Accordingly, we modify the judgment to stay the sentence on the second of those two counts.

First Holding:

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct.

Authority:

PEN 654

People v. Harrison (1989) 48 Cal.3d 321, 335

Second Holding:

Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Third Holding:

The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Fourth Holding:

An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances.

Authority:

PEN 1260

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Discretion, Sentencing, Standard of review

Case: 000101

Posted on by Gary McCurdy

Error and/or relief

In 2022, defendant was resentenced under Penal Code section 1172.75 and the trial court struck seven years from his determinate term. Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety. We agree and accordingly vacate defendant’s sentence and remand for a full resentencing.

First Holding:

The court shall dismiss an enhancement if it is in the furtherance of justice to do so.” Section 1385(c)(2) provides: “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

Second Holding:

We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion. An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

In re White (2020) 9 Cal.5th 455, 470

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

Third Holding:

The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229

Fourth Holding:

Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057, 1063

Sentencing, Sixth Amendment

Case: 000099

Posted on by Gary McCurdy

Error and/or relief

We find the trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s right to a jury trial on the alleged aggravating factors. We vacate the sentence and remand the matter for litigation of the alleged aggravating circumstances and full resentencing. During the bench trial on the prior convictions, the trial court specifically noted that it was not convinced beyond a reasonable doubt that the prior convictions were true. It was therefore error for the court to rely on them.

Holding:

The trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s constitutional right to a jury trial on the alleged aggravating factors.

Authority:

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

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

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

Sentencing

Case: 000097

Posted on by Gary McCurdy

Error and/or relief

The defendant claims the trial court erred in sentencing him to five years in prison, and alternatively asserts the court was unaware of its discretion to strike the enhancement in the earlier case. The People concede the trial court did not appreciate its discretion but argue it did not err because the original sentencing court would not have struck the enhancement. We vacate defendant’s sentence and remand for resentencing but otherwise affirm the judgment.

First Holding:

The trial court erred because it failed to understand its discretion to correct what we conclude was an unauthorized sentence. We will remand to allow the court to exercise its informed discretion to correct the unauthorized sentence and resentence defendant. A sentence is unauthorized when it could not lawfully be imposed under any circumstances.

Authority:

People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1517

Second Holding:

The original sentencing court was required to either suspend imposition of a sentence or impose and suspend execution of a sentence before placing defendant on probation. Instead, the original sentencing court did not pronounce a sentence for the underlying driving under the influence offense but imposed and suspended execution of the great bodily injury enhancement. As a result, we conclude the original sentencing court’s oral pronouncement of judgment was unauthorized. To determine the sentence imposed by the first sentencing court, we look to the oral pronouncement of the sentence. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. Ordinarily, this principle of law would let us apply the trial court’s oral pronouncement of judgment as the definitive sentence, but here the sentence orally pronounced was unauthorized. The record cannot be harmonized to correct the unauthorized sentence.

Authority:

PEN 1203.1

People v. Hill (1986) 185 Cal.App.3d 831, 834 [an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components–the invalidity of one component infects the entire scheme]

People v. Price (2004) 120 Cal.App.4th 224, 243

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

Third 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 situations, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion had it been aware of the scope of its discretion.

Authority:

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

Duty of the court, Sentencing

Case 000090

Posted on by Gary McCurdy

Error and/or relief

Remand for resentencing is required because (1) the trial court erred by failing to impose and then stay execution of the sentence on the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a); and (2) the trial court erred in failing to resentence the defendant to a single aggregate term of imprisonment for this case and another case for which he is serving a term of 24 years. We accept the People’s concession and remand the matter for resentencing.

First Holding:

At sentencing, the trial court did not orally pronounce a sentence for the infliction of great bodily injury enhancement. The matter is accordingly remanded for the trial court to impose and stay execution of the three-year sentence on the Penal Code section 12022.7(a) enhancement.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130

Second Holding:

When a defendant is convicted of multiple crimes in different cases and a consecutive term of imprisonment is imposed, the aggregate term for those cases is the sum of the principal term and subordinate term. In this instance, the trial court did not impose a single aggregated term. We will therefore remand for the trial court to do so.

Authority:

PEN 1170.1

Rules of Court, rule 4.452 [setting forth the procedure for imposing consecutive sentencing under PC 1170.1]

Third Holding:

During resentencing, the trial court shall award the appropriate custody credits for the aggregate term. [Gary note: the court cited no authority on the recalculation of credits, likely because the error is so obvious. But I have listed the statute and a leading case below.]

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37 [Having modified defendant’s sentence on remand, the court was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time]

Amelioration, Duty of the court, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000088

Posted on by Gary McCurdy

Error and/or relief

The trial court made several errors in resentencing under Penal Code section 1172.5. It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee. On remand the court must also recalculate credits and correct the abstract of judgment. [GARY NOTE: The opinion also provided extensive discussion of the application of section 1385, regarding dismissals in the furtherance or interest of justice, touching on abuse of discretion, etc., that were resolved against the defendant on appeal. I have provided a few principles and authorities on those points for educational reasons, even though they did not support relief for the defendant in this instance.]

First Holding:

Section 1172.75 declares legally invalid all one-year prior prison term enhancements except those for sexually violent offenses described in WI Code section 6600(b). Because the defendant’s two priors are not sexually violent offenses, they were legally invalid and should have been stricken.

Authority:

PEN 1172.75

Second Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) modified the gang enhancement by adding new requirements that did not previously exist. Because AB 333 retroactively applies to people, like defendant, who have been granted a resentencing hearing, the trial court erred in not assessing whether the jury’s findings in this case otherwise addressed the new requirements or whether the jury’s failure to do so was harmless beyond a reasonable doubt.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 395-396

Third Holding:

The trial court imposed a $10 administrative screening fee ostensibly under section 1463.07 in November 2018. This is unenforceable because our Legislature in 2021 repealed that section and nullified prior fees imposed under that section.

Authority:

PEN 1465.9

Fourth Holding:

It was not necessary for the trial court to respond to all of the defendant’s contentions at the sentencing hearing. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules.

Authority:

Rules of Court, rule 4.409 [sentencing factors will be deemed to have been considered unless the record affirmatively reflects otherwise]

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322

People v. Brugman (2021) 62 Cal.App.5th 608, 637

Fifth Holding:

We review the exercise of sentencing discretion for an abuse of discretion but recognize that a trial court’s reliance on an incorrect legal standard constitutes such an abuse. Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Sixth Holding:

Despite the use of the phrase “shall be dismissed,” section 1385’s provisions that require a court to give great weight in favor of dismissal do not apply where a trial court finds that dismissal of the enhancements would endanger public safety.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

People v. Mazur (2023) 97 Cal.App.5th 438, 444-446

People v. Cota (2023) 97 Cal.App.5th 318, 335-337

People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1290

People v. Anderson (2023) 88 Cal.App.5th 233, 238-241

People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21