Tag Archives: Sentencing

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000513

Posted on by Gary McCurdy

Error and/or relief

It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.

First Holding:

In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F

or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

Second Holding:

As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346

Third Holding:

With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]

People v. Smith (1983) 33 Cal.3d 596, 599

Fourth Holding:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.

Authority:

Cal. Const., art. III, sec. 3

PEN 1203

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Fifth Holding:

It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 905

Abstracts and Minutes, Effective assistance of counsel, Sentencing

Case 000510

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.

First Holding:

A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.

Authority:

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

Second Holding:

As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Welch (1993) 5 Cal.4th 228, 235

Third Holding:

At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.

Authority:

People v. Scott (1994) 9 Cal.4th 331,353

People v. Coleman (2024) 98 Cal.App.5th 709, 723-725

Fourth Holding:

If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 111

Elements of crime, Sentencing

Case 000509

Posted on by Gary McCurdy

Error and/or relief

Three counts of conviction of section 220 were but one crime, and could give rise to only a single conviction.

First Holding:

Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. Whether multiple convictions are proper under section 954 requires our independent evaluation of the statutes at issue.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Aguayo (2022) 13 Cal.5th 974, 979, 994 fn. 8 [we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Rodriguez (2021) 71 Cal.App.5th 921, 936

Second Holding:

The jury convicted the defendant of three violations of section 220(a)(1). The charging information and verdict forms for each section 220 violation did not identify separate assaultive acts. Nor did the jury instruction on the crimes. It grouped the three assault charges together, did not require multiple actus rei, and only potentially differentiated between the charges based on the intended sex crime. The jurors, evaluating the evidence, could have reasonably assigned the same act or acts to all three offenses.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 982–993 [finding assault with a deadly weapon and force-likely assault different statements of the same offense under section 954]

People v. Frank (1865) 28 Cal. 507, 513 [enumerated series of acts in a single statutory provision constitute but one and the same offense]

People v. Thompson (1896) 111 Cal. 242, 247–250 [same, even when a single statutory provision referenced multiple intents]

Appellate Principles, Sentencing

Case 000507

Posted on by Gary McCurdy

Error and/or relief

The defendant was entitled to full resentencing under section 1172.75, even though the now-invalid prior prison enhancement was stayed at the original sentencing.

First Holding:

When a prior conviction pursuant to section 667.5(b) is stricken pursuant to the procedures in section 1172.75, a defendant is entitled to full resentencing under section 1172.75(d).

Authority:

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

Second Holding:

The failure of the People to raise the issue in the trial court forfeits the issue on appeal. The reason for the forfeitur] rule is that it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Sperling (2017) 12 Cal.App.5th 1094, 1101

People v. Partida (2005) 37 Cal.4th 428, 433-434

Third Holding:

If the appellate court’s order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order. At the hearing upon remand, the trial court addressed only the section 667(a), prior convictions as directed by disposition in the Opinion. While the trial court could have addressed the section 667.5(b) priors and the stayed sentences at that time of remand based on a change of the law, it did not do so and was never asked to consider resentencing on the prior prison terms.

Authority:

People v. Walker (2021) 67 Cal.App.5th 198, 205

People v. Hargis (2019) 33 Cal.App.5th 199, 205-207 [where a change in the law becomes effective after the appellate court’s opinion but before the hearing on the limited remand, the trial court could consider the new law despite the limited remand]

Discretion, Sentencing

Case 000505

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence, and we remand for the trial court to hold a new sentencing hearing, at which it shall consider whether to exercise its discretion under section 1385 to dismiss the one-year enhancement it imposed under section 12022(b)(1).

First Holding:

During the sentencing of the defendant for second degree murder in which it was found true that he used a knife, the court stated it had no discretion to dismiss the enhancement allegation. Section 1385 governs a trial court’s discretion to dismiss an enhancement. Specifically section 1385(c)(1) states that 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, 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.

Under section 1385(a), if the court does not find that dismissal would endanger 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.) One enumerated mitigating circumstance is that the current offense is connected to mental illness. The defendant identifies that circumstance as potentially applicable here in light of information developed during the mental competency proceedings in this matter.

Authority:

PEN 1385

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

Second Holding:

The record establishes the trial court was not aware of its discretion under section 1385 to dismiss the weapon enhancement. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is not aware 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. Where the trial court was not aware of its discretion to dismiss a sentencing allegation under section 1385, it abuses its discretion. We accordingly conclude the trial court abused its discretion because it was not aware of its discretion to dismiss the weapon enhancement.

Authority:

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

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

Third Holding:

When a court has not exercised its informed discretion, remand is the default unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. Here, we find no indication in the record as to how the trial court would have exercised its discretion had it known it had the discretion to dismiss the enhancement. We will therefore remand for the trial court to exercise its discretion under section 1385 regarding the weapon enhancement imposed under section 12022(b)(1).

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431