Tag Archives: Sentencing

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, the court must 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.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

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

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in part, that 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. Section 654 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on 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. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000500

Posted on by Gary McCurdy

Error and/or relief

The condition that the defendant participate in and complete, at his expense, any counseling, rehabilitation, or treatment program deemed appropriate by his probation officer is unconstitutional. The sentencing memorandum must be amended to reflect the court’s waiver of all fines and fees.

First Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine (Cal. Const., art. III, sec. 3), judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. Here, defendant’s condition does not specify the kind of program defendant might be required to complete; rather, it allows defendant’s probation officer to determine whether and in what type of program defendant could be ordered to participate. Thus, the probation condition improperly delegates judicial authority to the probation officer.

Authority:

Cal. Const. art. III sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Second Holding:

Where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

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

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to global positioning system monitoring]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided that the defendant shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer] [CONTRA] People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [Upholding probation condition which directed defendant to follow such course of conduct as the probation officer may prescribe] [CONTRA:] People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program]

Third Holding:

The sentencing memorandum should be modified to accurately reflect the court’s oral pronouncement that all applicable fines and fees be waived. We shall direct the court to correct the sentencing memorandum.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment]

People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3 [The reviewing court has the authority to correct clerical errors]

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000499

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.

First Holding:

Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Third Holding:

Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, 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.]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000498

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court must recaculate credits for time served.

First Holding:

Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32

People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]