The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.), which, among other things, created a presumption in favor of a low prison term upon a showing that the defendant’s psychological trauma was a contributing factor in the commission of the offense.
In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal agreed with the parties that the appellant’s pre-Banks/Clark special-circumstance findings did not make him ineligible for relief under Penal Code section 1172.6 as a matter of law. The court reversed the denial of the appellant’s section 1172.6 petition and remanded for further proceedings.
The Court of Appeal agreed with appellant’s argument that appellant’s attempted criminal threat was part of the same course of conduct as his completed criminal threat, and therefore should have been stayed under Penal Code section 654. Additionally, the court remanded the case for resentencing in light of legislative changes to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.), which, among other things, created new limitations on the the imposition of the upper term.
In an appeal from the termination of parental rights, the court concluded that the Department of Social Services and the juvenile court did not satisfy their duty to inquire into the extended family’s possible Native American ancestry. The error was not harmless. The juvenile court’s finding that the Indian Child Welfare Act (ICWA) does not apply was conditionally reversed and the case was remanded for compliance with ICWA.
The Court of Appeal agreed with the parties that remand for resentencing was required based on retroactive application of Assembly Bill No. 124 (2021–2022 Reg. Sess.), which amended Penal Code section 1170 to require trial courts to impose the lower term (unless contrary to the interests of justice) if certain circumstances contributed to the commission of the offense. The appellant was 23 years old at the time of the offenses, which may have been a contributing factor in their commission. Upon remand, the court further ordered the trial court to revisit all of its sentencing choices in light of new and applicable legislation, including Senate Bill No. 567.
The Court of Appeal held that Assembly Bill No. 333 applies retroactively to appellant’s gang enhancement under Penal Code section 186.22. As a result, the court reversed appellant’s substantive gang offense and gang convictions and remanded the matter to allow the prosecution the opportunity to elect whether to retry appellant under current law.
The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.), which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. The court also held the fees imposed under former Government Code section 29550.2 must be vacated in light of the enactment of Assembly Bill No. 1869 (2019-2020 Reg. Sess.).
The Court of Appeal agreed with the parties that the appellant’s convictions for Penal Code section 288.7 violated the state and federal constitutional prohibitions on ex post facto laws, as the offenses occurred before section 288.7 was enacted. The court and parties further agreed that pursuant to Assembly Bill No. 1869, which added, interalia, Government Code section 6111 (Stats. 2020, ch. 92, § 11), any portion of the $108.19 booking fee imposed pursuant to Government Code section 29550.2 that remained unpaid as of July 1, 2021 was uncollectible. Finally, the court and parties agreed the trial court erred in imposing two fines pursuant to Government Code section 76104.7 because when the appellant perpetrated the most recent of the charged offenses, that statute did not authorize a fee amounting to 40 percent of the applicable base fine.
The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 654 made by Assembly Bill No. 518 (2021-2022 Reg. Sess.), which now affords trial courts the discretion to choose the count on which to impose punishment, instead of having to choose the one that provides for the longest potential term of imprisonment.
In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the denial of the appellant’s petition for resentencing under Penal Code section 1172.6. The denial was based on the jury findings that the appellant was a major participant who acted with reckless indifference to human life while engaged in the commission of felonies, which resulted in the killing for which he was convicted. However, those findings were rendered years before the Supreme Court clarified the law of felony murder liability in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.
The Court of Appeal remanded with instructions for the trial court to use its discretion to vacate one of the appellant’s convictions in light of the Supreme Court’s decision in People v. Aguayo (2022) 13 Cal.5th 974, which held that assault with a deadly weapon and assault with force likely to produce great bodily injury are the same offense and a defendant may not be convicted of both based on the same act or course of conduct. Additionally, the court agreed with the parties that the abstract of judgment should be amended to remove the $1,095 fee the trial court imposed for costs of preparing a presentence investigation report based on Penal Code section 1465.9, which made the fee unenforceable.
The Court of Appeal agreed with the parties that the appellant’s parole revocation fine pursuant to Penal Code section 1202.45 must be stricken because section 1202.45 is not applicable unless the sentence includes a determinate prison term, which it did not in this case. The court agreed remand was required based on retroactive application of Assembly Bill No. 518 (2021-2022 Reg. Sess.), which amended Penal Code section 654 to give trial courts the discretion to choose the count on which to impose punishment (instead of having to choose the one that provided for the longest potential term of imprisonment).
The Court of Appeal agreed with the parties that the trial court erred when it imposed a $300 parole revocation fine under Penal Code section 1202.45 after sentencing him to life without the possibility of parole. Section 1202.45 is not applicable unless the sentence includes a determinate prison term. The court and parties further agreed that Assembly Bill No. 518, which modified section 654 to give trial courts the discretion to choose the count on which to impose punishment (instead of having to choose the one that provided for the longest potential term of imprisonment), applies retroactively to the appellant’s case. The record did not clearly indicate that the trial court would have imposed the same sentence if it had been aware that it had discretion to do so. The court modified the judgement to strike the parole revocation fine and fine and ordered the matter remanded for resentencing pursuant to amended section 654.
Appellant was resentenced in 2022 pursuant to Senate Bill No. 620 and People v. Tirado (2022) 12 Cal.5th 688. The parties and trial court did not specifically discuss ameliorative sentencing legislation that had become operative at the start of the year. The Court of Appeal assumed the issue was not forfeited and found the error was not harmless. The matter was reversed and remanded for resentencing under the new ameliorative legislation: Senate Bill No. 81 (2021-2022 Reg. Sess.), which governs a court’s discretion in considering whether to dismiss an enhancement; Senate Bill No. 567 (2021-2022 Reg. Sess.), which governs triad sentencing discretion; and Assembly Bill No. 518 (2021-2022 Reg. Sess.), which allowed courts, when a defendant violates multiple laws in a single course of action, to choose the punished offense . Additionally, the court agreed with the parties that (1) the appellant’s booking and classification fees under former Government Code section 29550.2 must be vacated, and (2) the trial court erred by not recalculating defendant’s custody credits upon resentencing and must do so on remand.
The Court of Appeal remanded for retroactive application of Senate Bill No. 567, which amended Penal Code section 1170, subdivision (b)(6)(A), to provide a presumption for the lower term if the defendant’s psychological, physical, or childhood trauma was a contributing factor in the offense.
The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.), which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction.
In this juvenile case, the Court of Appeal agreed with appellant that the trial court prejudicially erred in concluding the first 8 minutes of the minor’s interview with police were non-custodial and admitting his un-Mirandized statements. The court reversed the juvenile court’s jurisdictional findings and dispositional order, and remanded for a new jurisdiction hearing, with directions to grant the motion to suppress the minor’s statements in their entirety.
The Court of Appeal agreed with the parties that the case must be remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), which generally limits the trial court’s ability to impose an upper term sentence unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or by the court in a court trial.
The California Supreme Court held that testimony about the reputational benefits of crime does not support an inference that a lone gang member committed crime for gang-related reasons — as opposed to acting other, more personal motives. Because in this case there was not an adequate basis for drawing the necessary inference about appellant’s intent, the Supreme Court reversed the judgment of the Court of Appeal and remanded for resentencing. After remand for resentencing, appellant’s sentence went from two consecutive terms of 23 years to life, to 6 years 8 months. He was released on time served.
The Court of Appeal reversed the appellant’s felony conviction for “child abuse likely to cause great bodily harm or death” because the trial court committed prejudicial error in not instructing the jury with on the lesser included offense of “child abuse in circumstances other than those likely to cause great bodily harm or death.” The appellant did not invite the error by failing to request any instructions on lesser included offenses.
The Court of Appeal agreed with the parties that the trial court erred in imposing the full middle term for an enhancement on a count where it imposed one-third the middle term, as Penal Code section 1170.1 required the trial court to impose one-third the middle term on the enhancement as well. The court ordered the judgment to be modified accordingly.
The Court of Appeal agreed with the parties that remand was required for resentencing under Penal Code section 1170, subdivision (6), which was amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) to create a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense. The court advised that upon remand, the trial court can reconsider the appellant’s sentence under section 1170, subdivisions (b)(1) and (2) as well. Finally, the court held that the appellant was entitled to 90 additional days of presentence credit under Penal Code section 2900.5.
Finding that Assembly Bill No. 1540 applies to the appellant’s case as a clarification of Penal Code former section 1170(d)(1), the Court of Appeal agreed with the parties that the trial court prejudicially erred in declining to exercise its discretion to recall the appellant’s sentence or strike the enhancements without appointing counsel, providing notice to the appellant, holding a hearing, or explaining its reasoning. The court remanded the matter for reconsideration of CDCR’s recommendation to recall and resentence the appellant in accordance with Penal Code section 1172.1.
The Court of Appeal agreed with the parties that remand for resentencing was required in light of retroactive statutory amendments to Penal Code sections 654 (Assembly Bill No. 518 (2021-2022 Reg. Sess.)) and 1170 (Senate Bill No. 567 (2021–2022 Reg. Sess.)). The court further directed the trial court to place it findings as to its application of section 654 on the record.
The Court of Appeal agreed with the parties that in light of the amendments to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 124 (2021-2022 Reg. Sess.), remand was appropriate for the trial court to consider the appellant’s age at the time of the offenses. The court further advised that the trial court can consider any other applicable changes to section 1170.
At the time the trial court denied the appellant’s petition for resentencing under Penal Code former section 1170.95, the statute was understood to exclude those convicted of attempted murder or manslaughter. The Court of Appeal agreed with the parties that the order must be reversed in light of Senate Bill No. 775 (2020–2021 Reg. Sess.).
The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 1170, made by Assembly Bill No. 124 and Senate Bill No. 567 (2021-2022 Reg. Sess.), and changes to Penal Code section 654, made by Senate Bill No. 518 (2021-2022 Reg. Sess.).
The Court of Appeal agreed with the parties that the trial court erred in relying on facts contained in the appellate opinion from a co-defendant’s case to conclude that the appellant failed to make a prima facie case for relief under Penal Code section 1172.6. The trial court additionally erred in failing to appoint counsel. The errors were not harmless. The court remanded the matter with directions to issue an order to show cause and conduct a hearing on the petition to determine whether to vacate the appellant’s murder conviction and resentence him.
Based on Assembly Bill No. 1950 (2019−2020 Reg. Sess.), which limited the maximum probation term a trial court is authorized to impose for most felony offenses to two years, the court reduced appellant’s three year probation term to two years. The court also reversed the trial court’s order revoking appellant’s driver’s license, which it is not authorized to do under Vehicle Code section 13351.5.
Because the trial court partially denied the appellant’s Penal Code section 1170.03 (renumbered to 1172.1) resentencing petition before the enactment of Assembly Bill 1540, which requires the court to apply any changes in law that reduce sentences and created a presumption in favor of resentencing when the request comes from the California Department of Corrections and Rehabilitation, the Court of Appeal remanded the matter for further proceedings in compliance with the amended legislation.
