Tag Archives: Sentencing

Amelioration, Discretion, Sentencing

Case: 000472

Posted on by Gary McCurdy

Error and/or relief

On this appeal from the defendant’s resentencing under section 1172.75, the matter is remanded for the court to exercise its discretion on whether to resentence the defendant under the Three Strikes Reform Act of 2012.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of a felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense was not a serious or violent felony. It included a retrospective provision – section 1172.126 – that provides relief to prisoners already serving third strike sentences where the third strike was not a serious or violent felony.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 652

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292

Second Holding:

In 2021, the Legislature enacted section 1172.75 that invalidates certain sentencing enhancements and requires courts to recall sentences with those enhancements and resentence them by applying any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and promote uniformity of sentencing

Authority:

PEN 1172.75

Third Holding:

The Reform Act applies at a section 1172.75 resentencing if section 1170.126’s substantive requirements are satisfied, including the following: (1) the defendant is eligible under the Reform Act; and (2) the trial court does not determine that resentencing the defendant would pose an unreasonable risk of danger to public safety. Eligibility for resentencing must be decided on a count-by-count basis. A defendant is ineligible under the Reform Act if he was armed with a firearm during the offense for which the third strike sentence was imposed.

As to the public safety component, the People must prove the facts upon which the determination is based by a preponderance of the evidence. Relevant factors include: (1) the defendant’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, the remoteness of the crimes; (2) the defendant’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 852, 878

People v. Johnson (2015) 61 Cal.4th 674, 688

People v. Estrada (2017) 3 Cal.5th 661, 669

Fourth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. When a court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing 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.

In applying the clearly indicates test, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Remand for resentencing is required unless the sentencing court (1) announced it was aware of forthcoming legislation and explained how it would exercise its discretion under that legislation or (2) made “the kind of definitive statements to clearly indicate it would not impose a lesser sentence under any circumstances.

Authority:

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

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

Fifth Holding:

The trial court’s focus on defendant’s public safety risk was under Romero and section 1385(c). Those standards do not cover the section 1170.126(g) standard for purposes of satisfying the clearly indicates test. Under section 1385(c), the court has discretion to dismiss an enhancement unless there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

This likelihood standard is not equivalent to or inclusive of the unreasonable risk of danger to public safety standard described in section 1170.126 for purposes of the clearly indicates test. And in denying the defendant’s request to dismiss his prior strikes under Romero, the trial court operated under a circumscribed power to depart from the sentencing norm established by the Three Strikes law. The circumstances had to be extraordinary for defendant to be deemed to fall outside the spirit of that law.

Authority:

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

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

People v. Buford (2016) 4 Cal.App.5th 886, 902-903

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

People v. Mayfield (2020) 50 Cal.App.5th 1096, 1105

Sixth Holding:

On remand, the trial court may consider the entire sentencing scheme given the inherently integrated nature of felony sentencing for a multiple-count conviction.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Abstracts and Minutes, Fines and fees, Sentencing

Case 000470

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be amended to make clear the trial court found an inability to pay fees and fines, and to provide the correct number of prejudgment credit days.

First Holding:

At sentencing, the trial court found that the defendant did not have the ability to pay the court fees. The abstract of judgment, however, imposes a court security fee of $200 and a criminal conviction assessment of $150. We will direct the trial court to amend the abstract of judgment accordingly.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 10

Second Holding:

Based on counsel’s representations, the court awarded credit for actual days served that was 30 days less than he actually served. Therefore, the court’s minute order should be corrected to reflect the proper number of credit days, and the abstract of judgment should be amended accordingly.

[GARY NOTE: The court did not cite any authority for this correction, but there is plenty. I have listed authority the court could have cited.]

Authority:

PEN 2900.5

People v. Chilleli (2014) 225 Cal.App.4th 581, 591 [The failure to properly calculate custody and conduct credit is a jurisdictional error that can be corrected at any time]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

People v. Buycks (2018) 5 Cal.5th 857

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Amelioration, Sentencing

Case 000466

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75 a defendant serving a life term under the original Three Strikes law, the court must resentence the defendant under the Three Strikes Reform Act of 2012 unless it finds that release would pose an unreasonable risk of danger to the public as that phrase has been construed under the Reform Act.

First Holding:

The Three Strikes Reform Act and section 1172.75 may be interpreted to operate harmoniously, so that the revised penalty provisions of the Reform Act may constitutionally apply at a resentencing pursuant to section 1172.75. Section 1172.75, when applied to Third Strike defendants seeking relief from their indeterminate terms under the Reform Act’s ameliorative provisions, incorporates the substantive requirements of the Reform Act, including the resentencing provisions in section 1170.126. For purposes of resentencing, section 1172.75 incorporates section 1170.126’s discretionary public safety override. Thus, a petitioner such as the defendant who is being resentenced under section 1172.75 is entitled to a full resentencing provided that he can satisfy the substantive eligibility criteria established in section 1170.126 to obtain resentencing pursuant to the revised penalty provisions of the Reform Act.

Authority:

PEN 1170.126(f) [a trial court shall resentence an eligible defendant unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety]

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861-862, 877

Second Holding:

If the superior court determines that resentencing the defendant pursuant to the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety, the court shall reimpose an indeterminate term. If the superior court does not determine that resentencing him would pose an unreasonable risk of danger to public safety, and the defendant is otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878

Third Holding:

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.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893