Tag Archives: Sentencing

Sentencing, Sixth Amendment, Standard of review

Case 000491

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.

First Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Second Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. In other words, Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

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

Third Holding:

We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.

Authority:

PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]

People v. Scott (1994) 9 Cal.4th 331, 350

People v. Castorena (1996) 51 Cal.App.4th 558, 562

Fourth Holding:

The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, the court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 776, 778

Sentencing

Case 000490

Posted on by Gary McCurdy

Error and/or relief

At the section 1172.75 sentence recall hearing, the court imposed a sentence longer than the original sentence, which violates section 1172.75. Remanded for a full resentencing hearing in compliance with section 1172.75.

First Holding:

Section 1172.75 makes it clear that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. Here, appellant was originally sentenced to an aggregate term of 25 years to life plus five years.

At resentencing, the trial court significantly increased appellant’s sentence when it imposed three consecutive 25-year-to-life terms, rather than concurrent terms as were previously imposed, plus three years for the great bodily injury enhancement on count 2 and a consecutive, rather than a concurrent, upper term of six years on count 3. Defendant was resentenced to an aggregate term of 75 years to life plus nine years.

Authority:

PEN 1172.75

Second Holding:

We conclude that appellant’s sentence is unauthorized since it directly violates section 1172.75(d)(1)’s proscription against imposing a longer sentence at resentencing An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case. It is well established that when the trial court pronounces a sentence which is unauthorized that sentence must be vacated and a proper sentence imposed when the mistake is brought to the attention of the reviewing court. Therefore, because defendant’s sentence is unauthorized, we vacate defendant’s sentence and remand the matter to the trial court for resentencing in compliance with section 1172.75(d).

Authority:

In re G.C. (2020) 8 Cal.5th 1119, 1130

People v. Benton (1979) 100 Cal.pp.3d 92, 102

Appellate Principles, Sentencing

Case 000486

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been stayed under section 654.

First Holding:

Section 654(a) provides 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. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

People v. Bey (2025) 108 Cal.App.5th 144, 167

Discretion, Sentencing, Standard of review

Case 000485

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in ordering interest on the restitution award to accrue from the date of the offense.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims” in an amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.

Authority:

PEN 1202.4(f)

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider in determining victim restitution. When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.

Authority:

People v. Phu (2009) 179 Cal.App.4th 280, 283, 284

People v. Pittman (2024) 99 Cal.App.5th 1252, 1258

Third Holding:

Section 1202.4(f)(3)(G) provides that a restitution order shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. Here, there was no evidence that the victim incurred losses as early as ordered by the court. For this reason, we reverse the portion of the trial court’s restitution order concerning interest accrual and remand for the court to select an appropriate date from which interest on the restitution award accrues.

Authority:

PEN 1202.4(f)(3)(G)

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000483

Posted on by Gary McCurdy

Error and/or relief

We find insufficient evidence to support the defendant’s conviction for sexual penetration and remand for resentencing on the remaining counts.

First Holding:

Even considering the evidence in the light most favorable to the judgment, we find no evidence to support the defendant’s unlawful sexual penetration conviction. During the victim’s police interview, she made general statements describing the defendant’s conduct, but they constituted vague, euphemistic language requiring followup questions to prove the required penetration. But the officers did not ask any. The officer’s trial testimony regarding what the victim meant, based on the officer’s experience and training, did not clarify the statements. Nothing indicates that the victim ascribed the same meaning and the officer’s testimony asserted. Nor did the victim clarify the acts in her testimony. Taken together, this evidence does not constitute precise and specific testimony to prove the required penetration beyond a reasonable doubt.

Authority:

People v. Haynes (1998) 61 Cal.App.4th 1282, 1291

People v. Paz (2017) 10 Cal.App.5th 1023, 1038

People v. Jones (1990) 51 Cal.3d 294, 316 [though a child sexual crime victim need not specify precise dates, times and circumstances, she must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct]

People v. Quintana (2001) 89 Cal.App.4th 1362, 1371

Second Holding:

On this record, we must reverse the sexual penetration conviction. We strike his sentence for that count and remand for a full resentencing as to all counts so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [trial courts have jurisdiction to modify every aspect of sentence on the counts that were affirmed, including the term imposed as the principal term]