Tag Archives: Sentencing

Abstracts and Minutes, Fines and fees, Sentencing

Case 000596

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court ordered that the original fines and fees imposed nearly 30 years earlier would remain the same. They are ordered stricken.

First Holding:

Effective January 1, 2025, section 1465.9 was amended to provide that, 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. Accordingly, the portion of the judgment imposing the restitution fine is vacated.

Authority:

PEN 1465.9

Second Holding:

The $70 fee imposed for AIDS education must be vacated. The original sentencing court imposed this fee pursuant to section 264(b), which states in relevant part: The judge may assess a fine not to exceed $70 against a person who violates Section 261 or former Section 262 with the proceeds of this fine to be used in accordance with section 1463.23. Section 1463.23, however, was repealed effective January 1, 2018. The provision authorizing the AIDS education fee (sec. 264, subd. (b)) was impliedly repealed in 2018, when the referenced statute (sec. 1463.23) was actually repealed, since it is no longer possible for the proceeds of this fine to be used in accordance with section 1463.23. Accordingly, the AIDS education fee is vacated.

Authority:

Repeal of PEN 1463.23

Third Holding:

The abstract of judgment filed in 2024 does not reflect the restitution fine or the AIDS education fee. We further note that the sentencing minute order similarly does not refer to any fines and fees imposed. Nevertheless, it is well established that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Accordingly, the clerk of the superior court is ordered to prepare an amended abstract of judgment and an amended sentencing minute order reflecting that the previously imposed restitution fine and AIDS education fee are vacated.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Jurisdiction, Sentencing

Case 000594

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This was NOT a win for the defense, but I include it because it contains a valuable point.] If an inmate is NOT CURRENTLY serving a sentence that has been enhanced by a now-invalid prior prison term conviction, that inmate is NOT ELIGIBLE for resentencing under section 1172.75. Thus, the appellate court reversed the resentencing order of the trial court that dismissed the now-invalid prior, because the defendant was no longer serving a sentence enhanced by it at the time of resentencing.

Holding:

By 2006 at the latest, the defendant had completed his original sentence that was enhanced by a single prior prison term in 1996. However, the defendant committed several new felonies while incarcerated, and was still serving those sentences when he filed his petition for recall of his original sentence in 2023. The superior court struck the original prior prison term enhancement in 2025.

But the defendant was no longer serving a sentence on that judgment. New crimes committed while in prison are treated as separate offenses and begin a new aggregate term. Section 1172.75 requires two things in addition to the judgment including an invalid section 667.5(b) enhancement: (1) that the defendant be in custody and (2) be currently serving a term on the judgment containing the invalid enhancement. Where a defendant remains in prison, the current judgment is the operative judgment pursuant to which they are incarcerated. Because the defendant was no longer in custody on the offense bearing the now-invalid enhancement, the court had no jurisdiction to dismiss it. We therefore reverse the judgment entered following the 2025 resentencing. The 1996 judgment is reinstated.

Authority:

People v. Langston (2004) 33 Cal.4th 1237, 1242

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1066

People v. Escobedo (2023) 95 Cal.App.5th 440, 447

People v. Amaya (2015) 239 Cal.App.4th 379, 386–387 [the trial court’s resentencing was void on the face of the record because the court granted relief that it had no power to grant]

Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 53 [when, as here, there is an appeal from a void judgment, the reviewing court’s jurisdiction is limited to reversing the trial court’s void acts]

Sentencing

Case 000592

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in treating three prior serious felonies separately though they were not brought and tried separately. Remanded for full resentencing.

First Holding:

Section 667(a) provides for a separate five-year sentence enhancement for every prior serious felony conviction on charges brought and tried separately. Where multiple charges were not brought separately, but were made in a single complaint, the court can only impose a single five-year enhancement for the multiple charges. The question whether prior convictions were brought and tried separately is for the court to decide, not the jury.

Authority:

In re Harris (1989) 49 Cal.3d 131, 136-137

People v. Jones (2015) 236 Cal.App.4th 1411, 1415-1416

Second Holding:

Given that the court rested its sentencing decisions on a mistaken understanding of the law, defendant is entitled to a full resentencing.

Authority:

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

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case 000591

Posted on by Gary McCurdy

Error and/or relief

The court erred in finding true the defendant’s two prior strikes. The true findings on appellant’s prior strike conviction allegations are reversed, and the matter is remanded to the trial court. Upon remand, the court is directed to give the People the opportunity to retry the strike allegations.

First Holding:

In 2022, AB 333 went into effect and made changes to the law on gang enhancements, including narrowing the definitions of a criminal street gang, and pattern of criminal activity.

Authority:

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

Second Holding:

The defendant’s 2014 prior felony conviction was a strike because it included a gang enhancement under the then-version of section 186.22. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. The current law applicable to a nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

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

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

People v. Tran (2022) 13 Cal.5th 1169

Third Holding:

There was insufficient evidence for the court to find that the defendant’s 2010 conviction for grossly negligent discharge of a firearm qualified as a strike prior, because no evidence was presented that the defendant personally used the firearm. It is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor. The People in this case presented evidence only of appellant’s conviction, and not any information regarding the conviction’s underlying facts.

Thus, the People proved nothing more than the least adjudicated elements of the prior conviction. Because there was no admission or evidence that appellant personally used a firearm, which would qualify his prior section 246.3 conviction as a serious felony pursuant to section 1192.7(c) the trial court’s true finding was in error. The remedy in such a case is remand for retrial at the prosecution’s election.

Authority:

People v. Golde (2008) 163 Cal.App.4th 101, 112-113

People v. Rodriguez (1998) 17 Cal.4th 253, 262

People v. Barragan (2004) 32 Cal.4th 236, 239

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case 000590

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s Penal Code section 1172.6 petition for resentencing at the prima facie stage.

First Holding:

Effective January 2019, the Legislature amended the law to eliminate liability for murder based on the natural and probable consequences doctrine or theories of imputed malice predicated solely on one’s participation in a crime. As relevant here, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Second Holding:

A trial court considering a section 1172.6 petition must first determine whether the petitioner made a prima facie showing he or she could not presently be convicted under the amended laws. In doing so, the court accepts the petitioner’s factual allegations as true. The court may deny the petition at the prima facie stage only if the record of conviction—which includes facts admitted in a guilty plea—conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Here, as the People concede, the record did not foreclose the possibility that the defendant was convicted under the invalid natural and probable consequences theory. His admissions and factual basis for the guilty plea were generic and did not establish the specific theory of aiding and abetting under which the defendant admitted guilt. Accordingly, they do not establish that he is ineligible for section 1172.6 relief as a matter of law. He pled that he aided and abetted a murder, but the natural and probable consequences doctrine is one theory of aiding and abetting.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211. 1212

Third Holding:

We review de novo the trial court’s resentencing denial at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211