Tag Archives: Sentencing

Case 000548

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Case 000547

Error and/or relief

On resentencing the defendant under section 1172.75, the balance of the restitution fine must be struck, as it was imposed more than 10 years ago.

Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years cannot be collected upon. The restitution fine here more than 10 years ago. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Case 000544

Error and/or relief

When the court set the probation term at three years instead of the agreed-on two years, the court erred in not complying with the plea bargain without permitting the defendant to withdraw from the plea agreement.

First Holding:

The standard for evaluating claims that counsel provided constitutionally ineffective assistance is set forth in Strickland. This standard provides that to secure reversal upon the ground of ineffective assistance of counsel under either the state or federal Constitution, an appellant must establish (1) that counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that appellant would have obtained a more favorable result absent counsel’s shortcomings.

On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687–694

People v. Cunningham (2001) 25 Cal.4th 926, 1003

People v. Mai (2013) 57 Cal.4th 986, 1009

Second Holding:

It is the appellant’s burden to demonstrate by a preponderance of the evidence that his or her counsel’s performance fell below an objective standard of reasonableness. Unless an appellant establishes the contrary, we shall presume that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Further, failure to raise a meritless objection is not ineffective assistance of counsel.

Authority:

In re Thomas (2006) 37 Cal.4th 1249, 1257

People v. Ledesma (2006) 39 Cal.4th 641, 746

People v. Bradley (2012) 208 Cal.App.4th 64, 90

Third Holding:

The defendant argues that his trial counsel was ineffective by failing to object when the trial court placed on a three-year grant of probation instead of the two-year probation term contemplated by the plea agreement. However, the order of probation is an unauthorized sentence, on which basis we reverse, rendering moot the question of ineffective assistance of counsel.

The Legislature enacted AB 1950, effective January 1, 2021, which significantly changed the law governing probation, including section 1203.1. Under the amended version of section 1203.1, the maximum term of probation a trial court may impose for most felony offenses is a period of time not exceeding two years. Whereas previous law had authorized courts to grant a period of probation not exceeding the maximum term for which the person could be imprisoned, AB 1950 instead authorizes a court to impose a term of probation not longer than 2 years, except as otherwise specified. As a general matter, the amendments of AB 1950 apply retroactively to the benefit of a person whose judgment is not yet final on appeal.

Authority:

PEN 1203.1

People v. Arreguin (2022) 79 Cal.App.5th 787, 793

People v. Faial (2025) 18 Cal.5th 199, 207

People v. Prudholme (2023) 14 Cal.5th 961, 963 [modifying term of probation to conform with new law while preserving remainder of plea agreement]

Fourth Holding:

Generally, a court may not accept an unauthorized plea. Where a trial court is asked to approve an illegal plea bargain—illegal because it violates a policy condition established by the Legislature or the people through the initiative process—the proper course of action for the court is clear. It should decline to act in excess of its authority and should refuse to approve an arrangement under which it is called upon to do so. Faced with an unlawful plea bargain, a trial court should withhold approval of the bargain.

Thus, if a court has approved a plea bargain containing an illegal term, ordinarily, the recourse for a court would not be to reform the bargain to make it legal; it would be to withdraw its prior approval of the agreement. Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission request by one or both of the parties, the trial court must restore the parties to the status quo ante. The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.

Authority:

People v. Prudholme (2023) 14 Cal.5th 961, 974

People v. Stamps (2020) 9 Cal.5th 685, 707

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757 [When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered]

People v. Barton (2020) 52 Cal.App.5th 1145, 1159

[Gary Note:

Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

But Wait! There’s More!

On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

But it contained a very important footnote:

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”]

Case 000543

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.

First Holding:

Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

PEN 1385

People v. Rogers (2025) 108 Cal.App.5th 340, 362

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Second Holding:

The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854

Fourth Holding:

We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377-378

Fifth Holding:

Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Case 000542

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that a defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB No. 136 retroactive by adding what is now numbered section 1172.75 to the Penal Code. Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

People v. Burgess (2022) 86 Cal.App.5th 375, 380

Second Holding:

A court has long had the authority to exercise its discretion and dismiss one or more prior serious felonies that are charged as Strikes under the Three Strikes law. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 hearing. Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either. As the trial court misunderstood the scope of its discretion, he case is remanded for a resentencing hearing. At that hearing, the trial court is directed to consider its full range of lawful sentencing options, including whether to grant or deny the defendant’s Romero motion.

Authority:

People v. Superior Court (Romero) 1996 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 345, 362