Tag Archives: Standard of review

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000846

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erred in failing to update the credit for time served. Remanded for the court to calculate the correct number of days and to correct the abstract of judgment that reflected the credit as of only the original sentence date.

First Holding:

The trial court incorrectly calculated his custody credit, and the abstract of judgment following the resentencing hearing does not reflect the actual days of custody credit as of the date of resentencing. We therefore remand the matter so the court may recalculate Smith’s actual days of custody credit and prepare an amended abstract of judgment.

Authority:

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

Second Holding:

(Gary note: The appellate court otherwise affirmed the sentence imposed on resentencing, but announced principles worthy of mention here, though they did not support any relief on appeal for this defendant.)

We review the trial court’s sentencing decisions for an abuse of discretion. We interpret relevant statutes and review claims of ineffective assistance of counsel de novo.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Mayfield (1993) 5 Cal.4th 142, 199

People v. Terwilligar (2025) 109 Cal.App.5th 585, 595

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. 

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing, Standard of review

Case 000838

Posted on by Gary McCurdy

Error and/or relief

Because the court did not follow the required procedures for adjudicating the petition brought under section 1170.91, we reverse and remand for further proceedings. We also direct the superior court to correct a clerical error in the abstract of judgment.

First Holding:

We interpret the requirements of section 1170.91 de novo.

Authority:

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 237

Second Holding:

Section 1170.91(b)(1) provides that a person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.

Authority:

PEN 1170.91

Third Holding:

If the trial court finds the defendant satisfies the criteria for relief, the court may, in the interest of justice, do either of the following: (1) reduce the defendant’s term of imprisonment by modifying the sentence; or (2) vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecution.

Authority:

PEN 1170.91(b)(3)(A)–(B)

Fourth Holding:

Upon receiving a section 1170.91 petition for resentencing, the trial court must hold a public hearing to determine whether the defendant satisfies the statutory criteria for relief. The prosecution, the defense, and any victim must be given at least 15 days’ notice of the hearing. At that hearing, the prosecution shall have an opportunity to be heard on the defendant’s eligibility and suitability for resentencing. The trial court erred by denying the defendant’s petition for resentencing without holding a properly noticed public hearing as required by section 1170.91(b)(3).

Authority:

PEN 1170.91(b)(3)

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 239

Fifth Holding:

Though the original version of section 1170.91 limited its application to those serving a determinate sentence, the Legislature amended the section in 2022 to remove the limitation.

Authority:

People v. Sherman (2023) 91 Cal.App.5th 325, 330 [In 2022, the Legislature amended

again. The 2022 amendment expanded subdivisions (a) and (b) to include those serving indeterminate sentences]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1154 [same]

Sixth Holding:

There is a clerical error in the abstract of judgment. It states that the defendant was convicted of grand theft of a vehicle pursuant to section 487h(a), when in fact he was convicted of the lesser included offense of unlawful driving of a vehicle pursuant to Vehicle Code section 10851(a).

If not already done, the abstract of judgment must be amended to correct this error.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000837

Posted on by Gary McCurdy

Error and/or relief

On resentencing following the defendant’s earlier appeal, the court misunderstood the scope of discretion with regard to striking or reducing the term imposed for firearm enhancements.

It also erred in imposing the upper term based on circumstances in aggravation that should have been, but were not, either stipulated to by the defendant or submitted to a jury for determination beyond a reasonable doubt.

First Holding:

When an accusatory pleading alleges and the jury finds true the facts supporting a greater firearm enhancement, the court may impose a lesser included, uncharged statutory enhancement. Further, a trial court may strike a defendant’s enhancement under section 12022.53 and impose a lesser uncharged enhancement authorized elsewhere in the Penal Code, that is, outside of section 12022.53.

Authority:

People v. Tirado (2022) 12 Cal.5th 688, 697, 700

People v. McDavid (2024) 15 Cal.5th 1015, 1030

Second Holding:

We consider a trial court’s sentencing decisions under an abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings not supported by substantial evidence.

A ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.

Authority:

People v. Moseley (2004) 105 Cal.App.5th 870, 874

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Tirado (2022) 12 Cal.5th 688, 694

Third Holding:

Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors. A silent record does not demonstrate a lack of awareness of the court’s full sentencing discretion.

Even if the sentencing court was unaware of its discretion, remand is not necessary when 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.

It appears from the record in this case that the court believed that its only choices were to impose the section 12022.53 enhancement or to strike it entirely. It appears that the court was unaware that it also had the option to impose a firearm enhancement under a lesser statute, section 12022.5.

Authority:

People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322

People v. Knowles (2024) 105 Cal.App.5th 757, 765

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

Fourth Holding:

The court erred in imposing the upper term based on a circumstance in aggravation that was not submitted to a jury for determination beyond a reasonable doubt, that the defendant’s (specifically, that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness).

Authority:

PEN 1170

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

Erlinger v. United States (2024) 602 U.S. 821

Fifth Holding:

A trial court’s sentencing decisions are reviewed for abuse of discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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