Sentencing Hearing, generally
Category > Sentencing Hearing, generally
Updated 7/12/2024The trial court did not err in considering defendant’s lack of knowledge of the unlicensed cannabis dispensary on her property when dismissing the misdemeanor under section 1385(a).Trial courts may consider the nature of a charged offense and a defendant’s minimal culpability in weighing all of the considerations for and against dismissal in furtherance of justice under Penal Code section 1385(a). The trial court did not err in considering defendant’s lack of knowledge of the unlicensed commercial cannabis on her property despite the fact that she was guilty of the strict liability misdemeanor offense.id: 28317
Updated 3/5/2024Sentencing court erred in issuing a post judgment restraining order following defendant’s misdemeanor arson conviction.Defendant set fire to a palm tree next to a strip mall, and was convicted of unlawfully burning property under Penal Code section 452, subd. (d). During sentencing, the court ordered defendant to stay 100 yards away from the building next to the tree. However, section 136.2 (used by the court) was not a proper vehicle for obtaining a postjudgment restraining order, nor are there any other statutes authorizing such unlimited postjudgment restraining orders based on a defendant’s misdemeanor conviction.id: 26688
Updated 3/4/2024Trial court had discretion to recall and resentence defendant after initial recommendation from the CDCR, even though the secretary later wrote a letter rescinding its recommendation. The secretary of the CDCR recommended a recall of defendant’s sentence under Penal Code section 1170(d) (now 1170.2). The secretary later wrote a letter rescinding its recommendation. The letter of rescission did not moot the appeal. The trial court erred in denying recall and it retained jurisdiction to recall and resentence defendant.id: 27645
Updated 3/4/2024The trial court erred in failing to conduct a full resentencing to consider new changes in the law.The trial court erred at defendant’s resentencing in failing to conduct a full resentencing in light of the recent changes in the sentencing laws.id: 28122
Updated 3/4/2024The trial court was required to conduct a full resentencing under section 1172.75 despite the terms of the plea agreement and the prosecution could not withdraw the plea if the court further reduced the term.The trial court recalled defendant’s sentence pursuant to Penal Code section 1172.75 and struck his one year prison prior. It declined to conduct a full resentencing because defendant was sentenced pursuant to a plea agreement. However, section 1172.75 required the court to conduct a full resentencing, and the prosecution was not entitled to withdraw its assent to the plea bargain if the court further reduced the term.id: 28159
Updated 3/4/2024Even though the sentencing court was not asked to apply the new laws, the case was remanded to determine the impact of Tirado and SB 81 on the applicable enhancements.Defendant argued that two new sentencing laws, SB 81, and the court's decision in People v. Tirado (2022) 12 Cal.5th 698, should have been addressed by the court in determining the application of the gun enhancement. The failure to present the issue was due to the fact that the laws were very new and all of the actors (judge and lawyers) were very busy. The case was remanded for consideration of the new laws.id: 28172
Updated 3/4/2024The trial court erred in failing to conduct a full resentencing after striking the previously stayed prior prison term enhancements.Defendant moved to strike four prior prison term enhancements under Penal Code section 1172.75, and requested a full resentencing from the 2013 case. The trial court struck the previously stayed enhancements but erred in failing to conduct a full resentencing.id: 28174
Updated 2/24/2024The trial court had no authority to impose a fine for an infraction that was not charged by the prosecutor.The trial court imposed a $100 fine under Penal Code section 29810 for failing to complete a firearms disclosure form. However, the fine was unauthorized because the prosecutor never charged defendant with the infraction. The prosecutor’s silence during the proceeding was not “a concurrence and approval” that somehow gave the court authority to act as it did.id: 26618
Updated 2/23/2024Defendant may appeal a sentence imposed after a section 1170 (d) recall without need for a certificate of probable cause.The Secretary of the Department of Corrections and Rehabilitation recommended that defendant be resentenced pursuant to Penal Code section 1170 (d)(1). An appeal can be taken from a sentence imposed under section 1170 (d)(1), without the need for a certificate of probable cause.id: 26928
Updated 2/22/2024Defendant whose case was remanded to strike a prison prior under SB 136, was entitled to seek further relief under other new sentencing laws.The trial court granted defendant’s request to have a sentence enhancement for a prior prison term struck under legislation that passed after his conviction under a plea agreement. Defendant was entitled to seek further reduction of his sentence under recent legislation affecting other parts of his conviction, but the prosecution may also withdraw its consent to the plea bargain upon a further sentence reduction.id: 28102
Updated 2/22/2024Defendant convicted over 20 years ago in adult court for crimes committed as a 15 year-old was entitled to the application of Prop 57 and SB 1391 when his case was sent back for resentencing under section 1170 (d)(1). Defendant was convicted more than 20 years ago of crimes he committed as a 15 year-old. The secretary of the CDCR requested a resentencing in 2018 pursuant to Penal Code section 1170 (d)(1). At the resentencing he was entitled to the ameliorative benefits of Prop 57, which prohibited prosecutors from directly filing criminal charges against juveniles in adult court, and SB 1391, which prohibited prosecutors from transferring most 14 and 15 year-olds to adult court. While the judgment was final in 2003, the resentencing under section 1170 (d) replaced the original sentence and so the case was no longer final for purposes of applying the recent provisions.id: 27218
Updated 2/4/2024The trial court failed to exercise its discretion in sentencing defendant to a maximum term in jail, as it believed the jail term was required after he declined probation.Defendant was convicted of misdemeanor driving on a suspended license. The trial court thereafter abused its discretion in sentencing him to the maximum term in that it failed to exercise its discretion mistakenly believing that six months in jail was the mandatory term when defendant refused probation.id: 27364
Updated 2/4/2024The trial court erred in summarily denying the CDCR’s request for resentencing under section 1170(d)(1) based on the violent nature of the offense alone.The Secretary of the CDCR recommended that the trial court recall defendant’s sentence pursuant to Penal Code section 1170(d)(1). The trial court erred by summarily denying the request based on the violent nature of the crimes without considering other factors including defendant’s youth at the time of the offense and his performance while in custody, even though this was a stipulated term of the plea agreement.id: 27685
Updated 2/4/2024At defendant’s resentencing hearing under SB 483, he was entitled to consideration of all new laws that reduce sentences.Defendant filed a petition for relief under SB 483. He was entitled to a full resentencing at that hearing which included the court’s exercise of discretion to dismiss the gun enhancement under SB 620 and the five-year serious prior under SB 1393. The trial court erred in finding it lacked the authority to address the latter.id: 27594
Updated 2/3/2024The trial court erred by rejecting the section 1170(d) request for resentencing without giving the parties an opportunity to provide additional information. The secretary of the CDCR used the Penal Code section 1170(d) procedure to recall defendant’s sentence and recommend that he be resentenced. The trial court rejected the request after stating it had reviewed the file and the secretary’s letter and determined the original sentence was proper. However, due process requires that the sentencing court give the parties notice of the CDCR’s recommendation for recall and resentencing and an opportunity to submit briefing and additional information relevant to the recommendation before ruling on the request. id: 27512
Updated 2/3/2024The minor children who slept through the crimes were not direct witnesses and were erroneously included in the postconviction order. Defendant was convicted of rape of the mother of his children who slept through the incident in another room. The trial court erred by including the children in a protective order that prevented defendant from seeing the children without counsel present for 10 years. The children were not direct victims. id: 27799
Updated 1/31/2024The trial court erred in granting the new DA's request to withdraw the section 1172.1 motion for resentencing because no reasons were given in support of the motion to withdraw.The District Attorney filed a request for resentencing under Penal Code section 1172.1. Thereafter, a new DA moved to withdraw the request. Trial courts have discretion to allow a DA to withdraw a section 1172.1 request before reaching the merits. The court erred in granting the motion to withdraw without hearing any reasons for the motion. The matter was remanded for a proper hearing on the matter.id: 28051
Updated 1/29/2024On remand following a letter from the CDCR identifying a sentencing error, the trial court must conduct a full resentencing and reconsider all options.The sentencing court increased defendant’s term by 16 months following a letter from the CDCR informing the court that it erroneously imposed a concurrent term in one count. The trial court’s inherent authority to correct an unauthorized sentence allowed it to modify the final judgment in response to the letter. The proper remedy though was a full resentencing hearing where the sentence included multiple components and the trial court exercised its discretion as to certain matters at the original sentencing.id: 27896
Resentencing was required where the court mistakenly believed it had to strike a strike in order to impose concurrent terms.Defendant was convicted of robbery, assault with a deadly weapon and resisting arrest. The court designated the robbery as the principal count. In deciding whether to impose concurrent or consecutive sentences on the remaining counts the court erroneously found that it would have to dismiss a strike in order to impose concurrent terms. The matter was remanded for resenstencing so that the court may consider concurrent terms depending upon whether the offenses were committed on the same occasion and arose from the same set of operative facts.id: 26254
The trial court erred in ruling mandatory supervision release serving sentences under the Realignment Act were ineligible to apply for out-of-state transfers under the Interstate Compact.A defendant released into the community to serve a mandatory supervision sentence under the Realignment Act is eligible to apply for a transfer under the Interstate Compact for Adult Supervision. id: 23845
The trial court erred by delegating to the probation department the analysis of defendant’s ability to pay the drug program fee.Defendant was convicted of a drug offense and as part of his sentence was ordered to pay a drug program fee of $570 pursuant to Health and Safety Code section 11372.7. However, the trial court erred by delegating the determination of defendant’s ability to pay the fee to the probation department. Moreover, the record does not support an implied finding of ability to pay.id: 23281
The trial court misunderstood its sentencing options and the matter was remanded for resentencing. In People v. Palacios (2007) 41 Cal.4th 720, the court held that Penal Code section 654 did not prohibit multiple sentence enhancements under section 12022.53, when it did not prohibit multiple punishment of the underlying crimes. Here, the sentencing court mistakenly believed Palacios required the court to impose consecutive enhancements under section 12022.53(d) whether or not section 654 prohibited multiple punishment for the underlying offenses. The matter was remanded to the trial court to determine whether the shooting was incidental to the robbery pursuant to section 654, and if not, whether to impose a concurrent or consecutive term for the robbery count.id: 22067
Attempted rape does not require AIDS test under section 1201.1 but the matter was remanded to allow the victim to request an AIDS test under another statute.Defendant was convicted of attempted rape. The sentencing court erred in ordering defendant to submit to an AIDS test pursuant to Penal Code section 1201.1 because attempted rape is not one of the offenses enumerated in that provision. However, the court may order AIDS testing under Health and Safety Code section 121055 if requested by the victim of a sexual assault. The matter was remanded to allow the prosecutor and/or victim to petition the court for an order requiring defendant be tested for AIDS under section 121055.id: 9922
The trial court erred by imposing a higher sentence after a recall of the original term under section 1170, subd.(d).Defendant was sentenced to a seven year prison term following his conviction of criminal threats and dissuading a witness, and neither party appealed. The department of corrections later notified the trial court that the term was higher than the law allowed. Thereafter, the trial court recalled the sentence under Penal Code section 1170, subd.(d), but then imposed a sentence greater than the original term, which it determined was unauthorized. However, the trial court erred by imposing a higher term after the recall and the fact that a portion of the original sentence was unauthorized did not allow an increased term where it was possible to achieve a similar term using a different analysis. id: 20417
Trial court's lack of awareness of its discretion to impose on a special circumstance first degree murder of a youthful offender a term of 25 years-to-life required remand. The record shows the trial court was unaware of its sentencing discretion to impose on the special circumstance first degree murder a youthful offender 25 years-to-life instead of an LWOP
term. The matter was remanded to allow the court to exercise its discretion.id: 19564
The trial court erred in resentencing defendant in his absence.In a 1995 case defendant pled guilty to several offenses including dissuading a witness under Penal Code section 136.1, subd.(e)(1). Defendant received a 14 year prison term which included a one year (one- third the middle) term for dissuading a witness. In 2001, the Department of Corrections advised the trial court that Penal Code section 1170.15 provides for a full consecutive term for dissuading a witness. The trial court thereafter erred in amending the abstract of judgment, ex parte, to provide for the three year consecutive term. The matter was remanded for resentencing with defendant present.id: 16857
The trial court lost jurisdiction to sentence on his probation revocation by failing to sentence him within 90 days of the DA's receipt of his section 1381 demand. The speedy sentencing rights provided by Penal Code sections 1381 and 1203.2 apply to a probation revocation proceeding where imposition of sentence was originally suspended. The sections provide a defendant with alternative methods of sentencing. Here, in a probation revocation proceeding, the court sentenced defendant beyond the 90 day time limit set forth in section 1381. The sentence was vacated as counsel rendered ineffective assistance in failing to move to dismiss on the jurisdictional basis. However, under section 1387, the prosecution may refile the probation revocation.id: 19809
The sentencing judge abused his discretion in refusing to continue sentencing for three days until the trial judge was available.Defendant did not have a right to be sentenced by the judge who presided over the trial. Nevertheless, the sentencing judge abused his discretion in refusing to continue the sentencing hearing for three days until the trial judge was available.id: 19914
Victim has no standing to challenge the recall of a sentence.Appellant was convicted and sentenced to prison. The Superior Court invoked Penal Code section 1170, subdivision (d) to recall the sentence. The Court of Appeals held that petitioner <197> the victim of the earlier assault <197> had standing to challenge the recall as a matter of public interest. On the merits, it held that section 1170, subdivision (d) provides no authority for the trial court's action. The Court of Appeal erred in both respects. Neither a crime victim nor any member of the public can intervene in a criminal proceeding against another person. Moreover, section 1170, subdivision (d) does not limit a sentencing court to correction of a desperate sentence. Instead, the statute allows the court to recall a sentence within time limits, and then to resentence for any reason that could influence the exercise of sentencing discretion generally, including events which have occurred since the original sentence was imposed.id: 13400
Trial court retains jurisdiction to modify a sentence by imposing a lesser sentence at any time prior to commencement of execution of the sentence.The trial court did not lose jurisdiction over defendant, and the power to modify the defendant's sentence in a manner more favorable to defendant, where the court imposed state prison sentence, ordered a brief stay of execution of judgment in order to permit the defendant to put his personal affairs in order prior to commencement of execution of the sentence, and the clerk of the court had entered the sentence in the minutes of the court.id: 13399
Court erred in failing to exercise sentencing discretion where defendant was convicted of first degree murder and igniting a destructive device causing death.Defendant was convicted in count I of first degree murder and in count III of igniting a destructive device causing death under Penal Code section 12310, subdivision (a). The court had a duty to determine which punishment, 25 years to life under count I <U>or</U> life without possibility of parole under count III was the appropriate punishment, and to stay the other punishment. The court erred in failing to exercise that discretion and the error required remand.id: 13374
The court had no authority to impose the maximum fines for the express purpose of reimbursing the county for the costs of prosecution.Defendant was convicted of filing false deeds of trust in connection with an elaborate scheme to unlawfully shield a friend's personal assets from collection by judgment creditors. The court erred in imposing the maximum fines for the express purpose of reimbursing the county for the costs of prosecution. However, on remand the court may consider the same factors used in making the initial sentencing choices in arriving at the amount of the fine, i.e., the nature of the crime, the defendant's background and criminal history.id: 13393
Sentence may be recalled by a judge other than the original sentencing judge if that judge is unavailable during the 120 day period.Penal Code section 1170, subdivision (d) authorizes a recall of a sentence within 120 days of the date of commitment. Judge Westra imposed the original sentence. After 116 days Judge Randall recalled the sentence (due to Judge Westra's unavailability) and set the resentencing date when Judge Westra would be available. At resentencing Judge Westra ruled the recall order was void because section 1170, subdivision (d) reserves the recall decision to the original sentencing judge . However, the original sentencing judge should be assigned a motion for recall and resentencing if available. If unavailable, then another judge of the court may substitute for the absent or otherwise unavailable sentencing judge.id: 13387
Trial court lacked jurisdiction to increase the sentence once the judgment was entered.Defendant pled guilty to transporting methamphetamine. The plea bargain included a three-year middle term lid. The court sentenced defendant to serve the three-year mid term and at defendant's request, stayed execution for three weeks. Defendant did not appear on the report date. Thereafter, he was arrested and sentenced to serve four years. However, the court lacked authority to increase the sentence once the judgment was entered.id: 13398
Superior Court must impose sentence within 30 days of receipt of an unsentenced probationer's request to be sentenced in absentia.The 30-day period in Penal Code section 1203.2a in which a trial court must impose sentence in absentia on an unsentenced probationer begins to run on the court's receipt of a request for sentencing, in absentia. Thus, the superior court had lost jurisdiction when it sentenced defendant 31 days after receiving defendant's request.id: 13391
Order for AIDS test was unauthorized where there was no request by the victim, a hearing or finding of probable cause.Defendant was convicted of committing two lewd acts on a child. In addition to a prison sentence he was ordered to undergo an AIDS test. However, since Health and Safety Code section 199.96 authorizes an order for AIDS testing only where there has been a written request by the victim, a hearing and a finding of probable cause, and none of the prerequisites were met, the AIDS testing order was invalid and stricken.id: 13384
The trial court erred in ignoring defendant's complaints at sentencing as to trial counsel's performance.The trial court erroneously failed to permit defendant to state the reasons for his expressed dissatisfaction with trial counsel and to inquire into his request for substitution of counsel prior to hearing the motion for a new trial presented by counsel. However, a remand to the trial court was not necessary where appellate counsel addressed trial counsel's ineffectiveness and the Court of Appeal found no merit to the issues raised.id: 13394
The court erred in returning the seventeen year old to CYA after the board found him an inappropriate candidate for CYA treatment and returned him to the court for resentencing.The trial court ordered the seventeen year-old defendant returned to the California Youth Authority (CYA) after the Youthful Offenders Parole Board found him an inappropriate candidate for CYA treatment and returned him for resentencing under Welfare and Institutions Code section 1737.1. However, the order was reversed as the court was without authority to do anything but sentence him to state prison or to county jail as punishment for the offense.id: 13392
Court and defendant may agree to be bound by the recommendation of the diagnostic facility so long as the court actually exercises its sentencing discretion.Penal Code section 1203.03 empowers a sentencing court to temporarily commit a convicted felon to a diagnostic facility of the Department of Corrections for a report containing a diagnosis and recommendation concerning the disposition of defendant's case. The court and defendant may agree to be bound by such a recommendation so long as the court actually exercises its sentencing discretion.id: 13370
Defendant may challenge an HIV testing order under section 1202.1 for the first time on appeal where the challenge is directed to sufficiency of the evidence.Since involuntary HIV testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection. Without evidentiary support the order is invalid.id: 17645
The trial court's failure to impose a sex offender fine pursuant to section 290.3 is not an unauthorized sentence subject to correction on appeal absent an objection by the prosecutor.The omission of a sex offender fine pursuant to Penal Code section 290.3 on a silent record does not constitute an unauthorized sentence that may be corrected on appeal. Instead, it is presumed that the trial court made the requisite findings to support its judgment. In the present case, the trial court's implied findings were supported by substantial evidence.id: 17758
The failure to order and consider an updated probation report following defendant's probation violation was harmless error.Defendant pled guilty to a drug offense and was granted probation pursuant to Prop 36. He later violated probation by committing new offenses, and was ordered to serve a prison term. The trial court erred by failing to order and consider an updated or supplemental probation report since the original report was prepared approximately eight months before the sentencing hearing at issue. However, the error was harmless where the sentencing judge was the judge who presided over the trial and was well acquainted with the facts underlying the probation violation (which involved use of a weapon). Moreover, defendant's Prop 36 progress report did not establish satisfactory progress, and his progress on probation was undoubtedly unsatisfactory.id: 18397
Court erred in failing to give defendant notice of a hearing to reconsider the issue of his ability to pay court-appointed counsel and cost of probation report.The court conducted a hearing in its morning session and made a finding that defendant had no present ability to pay the cost of his court-appointed attorney, presentence investigation and probation report. However, defendant was given no notice that the trial court would reconsider the issue and make a contrary finding in the afternoon session. Moreover, the record did not show that the trial court considered any evidence of actual costs, as required, when it fixed the costs of representation at $600 and of preparation of the probation's report at $562.id: 12207
Updated 7/12/2024The judgment became nonfinal when the defendant sentenced as an adult prior to Prop 57 had sentence conditionally reversed on habeas corpus, which entitled the defendant to the benefit of ameliorative laws.When a court vacates a sentence, the judgment becomes nonfinal for purposes of retroactively applying ameliorative laws. A judgment also becomes nonfinal when a minor sentenced as an adult prior to the passage of Prop 57 subsequently has their sentence conditionally reversed on habeas corpus. Such a defendant is entitled to the benefit of ameliorative laws enacted since the imposition of the original sentence. Here, that included SB 1391, which amended Prop 57 to prohibit the transfer of 14 and 15 year-olds to adult criminal court, and AB 333, which amended various provisions of Penal Code section 333.id: 28316
Updated 6/1/2024The trial court did not have discretion under section 1385(c) to dismiss findings that the attempted murder was premeditated because the provision only applies to sentence enhancements.Evidence supported the jury’s finding of premeditated and deliberate attempted murder where the defendant engaged in a shootout with police immediately after crashing a stolen vehicle in a busy intersection. Contrary to defendant’s argument, the trial court did not err by failing to exercise its discretion under Penal Code section 1385(c) to consider dismissing the premeditation and deliberation findings because those findings are not enhancements.id: 28284
Updated 3/4/2024Provision authorizing recall and resentencing for veterans whose PTSD and other conditions were not considered at the original sentencing applies only to those sentenced before Jan. 1, 2015.Penal Code section 1170.91 (b) allows military veterans suffering from military related conditions including PTSD, and who did not have those circumstances considered when first sentenced, to petition for a resentencing. Defendant did not qualify for the relief since the statute expressly states that it applies to persons sentenced before Jan. 1, 2015, and he was sentenced in March of 2015. id: 27241
Updated 3/4/2024It was presumed that the court knew of the modification to section 1385 at the time of the resentencing.Defendant sought a remand for resentencing so that the court could consider new mitigating factors in determining whether enhancements should be dismissed under Penal Code section 1385. The new factors were established in SB 81. However, the amendment to section 1385 was in effect when the trial court resentenced defendant, and it was presumed that the trial court was aware of the new law.id: 28166
Updated 3/4/2024The trial court erred in summarily denying the 1170.91 petition that met the statutory requirements for relief.Defendant filed a petition for resentencing under Penal Code sectin 1170.91, the provision enacted in 2018 to allow for resentencing for veterans who had sustained PTSD during their military service. The trial court erred by summarily denying the petition rather than holding a hearing to determine whether he met the eligibility criteria.id: 26852
Updated 2/4/2024Section 1172.1 adds a presumption favoring recall and resentencing, but not a presumption as to a particular sentence.The CDCR recommended resentencing under Penal Code section 1170(d)(1), later replaced by 1170.3, and then again as 1172.1. The latter provides a presumption in favor of recall and resentencing. The trial court may not have been aware of the new presumption; but that didn’t matter since the case had already been recalled for resentencing. There was no new presumption as to a particular sentence recommended by the secretary of the CDCR.id: 27605
Updated 2/4/2024Defendant could not apply for resentencing as a veteran with a disorder under section 1170.91 since he was serving an indeterminate term and the prospect of Romero relief did not change that. In 2018, the Legislature amended Penal Code section 1170.91 to allow a convicted veteran suffering from service related disorders to petition for resentencing so that disorder could be considered as a mitigating factor when imposing a determinate term. Defendant filed a petition under this provision but was denied because he was serving an indeterminate life term. He argued this was erroneous because if resentenced, the court could dismiss a strike prior. However, section 1170.91 is not a vehicle for obtaining the opportunity to make a Romero motion. Neither could he be sentenced to a determinate term under Prop 36.id: 27378
Updated 2/3/2024The Franklin hearing did not open up defendant’s case that was otherwise final and so the new sentencing laws were not available to him.Defendant was convicted of drunk driving murder in 2006. He subsequently went back to court for a Franklin hearing to make a record of youth-related factors relevant ot the crime. Contrary to defendant’s claim, the Franklin hearing did not reopen the case so that it was no longer final and new sentencing laws could be applied.id: 27665
Updated 2/1/2024The trial court did not err by failing to incorporate the Three Strikes Reform Act when resentencing defendant under SB 483.Defendant was resentenced pursuant to SB 483, and the trial court dismissed a one year prior prison term enhancement but otherwise imposed the original term. He argued the trial court erred by not also applying the revised penalty provisions of the Three Strikes Reform Act of 2012 (Prop. 36). However, there was no error as the Reform Act provides for a distinct resentencing procedure that defendants must follow in order to seek discretionary relief under the act.id: 27923
Section 1385 does not authorize a trial court to dismiss a parole revocation petition “in furtherance of justice.”The authority to dismiss conferred by section 1385(a) is addressed to criminal charges or allegations in the indictment or information. The trial court did not err by denying defendant’s request to dismiss the parole violation petition.id: 26255
The defendant serving an indeterminate term was ineligible for resentencing under section 1170.91, which allow courts to considering mitigating factors relating to military service.In 2018, the Legislature amended Penal Code section 1170.91 to allow those sentenced for a felony before 2015 to petition for a resentencing hearing at which the court could consider mitigating factors related to military service. However, the defendant serving an indeterminate term was statutorily ineligible for resentencing under section 1171.961.id: 27140
Including treatment program completion as a means to an earlier release from juvenile hall was not an improper delegation of power from the juvenile court to the probation department. The juvenile court committed the minor to juvenile hall until the age of 21, but provided for an earlier release if and when he successfully completed a court-designated treatment program. The minor argued on appeal that this was an improper delegation of the court’s authority to the probation department to determine the length of commitment. However, under the terms of the program, the juvenile court retained the authority to determine whether and when the minor would be released from juvenile hall, so there was no improper delegation of authority.id: 26078
The trial court had the authority to increase the sentence on remaining felony counts after granting Prop 47 relief on certain counts.When a defendant’s aggregate sentence includes multiple felony offenses, some of which are reduced to misdemeanors pursuant to Prop 47, a trial court may resentence the defendant to an increased term for the remaining felony offenses as long as the new aggregate sentence doesn’t exceed the original sentence.id: 24962
Denying defendants the opportunity to petition for a sentence recall under section 1170, subd.(d)(2) after an earlier modification would improperly punish them for exercising a constitutional right.Defendants’ LWOP sentences were reduced to simple life sentences. Thereafter, defendants filed a petition to recall the sentences under newly amended Penal Code section 1170, subd.(d)(2). The prosecution argued the court having once modified the sentences lacked jurisdiction to recall the sentences under the “plain meaning” of section 1170, subd.(d)(2). However, application of that rule would be unfair and penalize the defendants for exercising their constitutional rights as declared by the U.S. Supreme Court.id: 24940
The trial court did not err by resentencing defendant to the same term he originally received after granting Prop 47 relief as to two counts. The trial court granted defendant’s request to reduce two of his several convictions to misdemeanors under Prop 47. The trial court did not thereafter err by resentencing defendant to an overall prison term that was the same length as his original, plea bargained sentence given defendant’s significant criminal history.id: 24883
The failure to provide a person facing revocation of PRCS a probable cause hearing before a judge doesn’t violate due process or equal protection. Defendant argued the process used to revoke his postrelease community supervision (PRCS) violated his right to due process because he wasn’t promptly given a probable cause hearing before a neutral decision maker, as required in parole revocation cases. However, PRCS is similar to parole in some respects but a different form of supervision, and there was no due process problem where the defendant in a PRCS revocation hearing has an informal hearing before the supervising agency, which addresses probable cause. There was no equal protection violation given the different treatment of parolees and those subject to PCRS.id: 24576
The trial court lacked jurisdiction to modify the verdict once defendant filed the notice of appeal. Defendant was convicted of first degree murder, his motion for a new trial was denied and he filed a notice of appeal. The trial court thereafter erred by reducing the offense to second degree murder and imposing a lower term. The trial court had no jurisdiction to modify the verdict and resentence. While Penal Code section 1170, subd.(d) allows a trial court to modify a sentence within 120 days it does not authorize the court to change the verdict. The filing of the notice of appeal also divested the court of jurisdiction to find the first degree murder sentence was cruel and unusual or to modify the verdict under section 1181.id: 23824
Increased sentence after retrial was not vindictive prosecution and did not violate due process or double jeopardy where it was based on enhancements on which the jury hung at the first trial.Defendant’s attempted murder conviction was reversed for instructional error. At the retrial, the prosecution pursued firearm enhancements on which there had been a hung jury and a mistrial. They were never dismissed. At the second trial, the prosecution pursued the enhancements which were found true, and resulted in a greater sentence at the retrial. The retrial on the mistried enhancements was not vindictive prosecution as there was no increase in changes for the second trial. Moreover, the increased aggregate sentence did not violate due process or double jeopardy under the state constitution as the rule prohibiting an increased sentence at a retrial does not apply where it was due to retrial of a count on which the jury hung. id: 22225
The trial court did not err when correcting the sentence by imposing a higher term where the original sentence was unauthorized. The trial court corrected a sentencing error - increasing defendant’s term in state prison from an unauthorized four years to an authorized six years. Defendant argued the trial court was prohibited from resentencing him to a term greater than that originally imposed. However, neither double jeopardy nor Penal Code section 1170(d) prohibited the increased sentence where the original term was unauthorized. id: 22456
Defendant did not commit the drunk driving murder as a result of combat service-related PTSD.Defendant was a Marine convicted of second degree murder in a drunk driving incident. He argued the trial court erred in failing to properly consider his request for alternative sentencing as a combat veteran suffering from PTSD under Penal Code section 1170.9. However, the trial court did not abuse its discretion in finding that defendant did not show he committed the offense as a result of combat service-related PTSD.id: 22158
Any error in failing to advise defendant of his right to allocution at sentencing was harmless where he pled guilty in exchange for a five year term. Defendant pled guilty to an aggravated assault before his preliminary hearing and without the benefit of a probation report. He was sentenced to the negotiated term of five years. He argued on appeal that the case should be remanded for resentencing because he had not been advised of, and did not waive, his right of allocution at sentencing. However, any error was harmless where the record showed that he pled guilty in exchange for an actual sentence of five years.id: 21456
The trial court had no authority following the motion to recall the sentence under section 1170, subd.(d) to impose something less than the 12 year stipulated term.Defendant pled guilty to felony child neglect and admitted a GBI allegation, and agreed to a 12 year prison term which the court imposed. The codefendant was acquitted of the more serious (murder) charge at trial, and was sentenced to six years for conviction on a lesser charge. Defendant moved to recall her sentence. However, the trial court’s discretion to impose a sentence both at the initial sentencing hearing and upon a recall of sentence under section 1170 was defined by the terms of the plea. The court could not modify the 12 year stipulated sentence.id: 20989
Indigent defendant was not entitled to have experts appointed to support defense counsel’s argument at sentencing.The trial court did not err by refusing to appoint a psychotherapist and a drug treatment counselor to help defendant present addiction treatment options at the sentencing hearing. Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings. Moreover, neither the state nor federal constitutions entitled an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts appointed to support defense counsel’s argument.id: 21067
The dismissal of the enhancement allegations under section 1385 was reversed for failure to include a written statement of reasons.Penal Code section 1385 requires that when the trial court seeks to dismiss an entire action, or an enhancement allegation, the reasons for the dismissal must be set forth in writing. Here, the trial court’s reasons for the dismissal, though not stated in a minute order, were expressed in open court and recorded in the transcript. However, the lack of written reasons violated section 1385. Moreover, the prosecution did not waive the error by failing to remind the court of the need for a written order and later failing to take corrective action. The matter was remanded so that the trial court could set forth its reasons in writing or reconsider its decision.id: 20942
The trial court’s response to the clerk that the wobbler offense should be treated as a felony showed it was aware of its discretion to sentence the offense as a misdemeanor. The minor was found to have possessed “metal knuckles” within the meaning of Penal Code section 12020, subd.(a). The offense is a wobbler. At the close of the proceedings, the clerk asked if the offense was a felony and the court responded that it was. The minor argued on appeal that the court’s statement did not show an awareness that it could treat the offense as a misdemeanor. However, the court’s statement sufficiently demonstrated the court was aware of its discretion to sentence the offense as a misdemeanor.id: 20593
The trial court lacked the authority to reduce a 365 day jail term that had already been served. The superior court does not have authority, while a defendant is still on probation, to reduce a county jail term imposed as a condition of probation when the defendant has already served the term. Moreover, the prosecution had the right to appeal the trial court’s reduction of the 365 day jail term that would have allowed the defendant to avoid deportation, because it affected the substantial rights of the People.id: 20870
The trial court did not deny the capital defendant’s right to allocution at the sentencing hearing by denying his request for a continuance so that he could produce witnesses.Defendant argued he was denied his right to allocution at the penalty phase because he was unprepared for the sentencing hearing. Assuming a capital defendant has a right to make a sworn statement, he does not have a right to call witnesses and present evidence at the hearingid: 20818
The sentencing court may take into account facts the jury found not to be true.Defendant argued that in imposing sentence, the trial court may not take into account facts that the jury implicitly found not to be true. However, because facts considered by the court in selecting the appropriate sentence within the available range need not be proved beyond a reasonable doubt. A trial court, in this setting is not prohibited from considering evidence underlying charges of which a defendant has been acquitted.id: 20556
Court erred in reducing a 1994 sentence by one day nunc pro tunc in order to avoid deportation.In 1994 defendant pled guilty to drunk driving with three prior convictions. As a condition of probation, he was required to serve 365 days in local custody. In April of 2000, after he had served his 365 days and his probation expired, he filed a motion to reduce his sentence nunc pro tunc to 364 days. He argued he had not been fully advised of the immigration consequences at the time he entered the plea. The trial court erred in modifying the sentence to 364 days nunc pro tunc to the date of the original sentence in order to avoid deportation. The case did not involve a clerical error and the nunc pro tunc order cannot be used in order to change a sentence. Since the order was in excess of the trial court's jurisdiction and affected substantial rights, the order was appealable by the prosecution.id: 16638
Penal Code section 1191.1 does not limit the victim's right to speak to just the initial sentencing hearing.Defendant argued that Penal Code section 1191.1 allows the
victim to speak at the original sentencing hearing, but not a subsequent sentencing following revocation of probation. however, the victim may be heard at any sentencing hearing.id: 19858
Trial court lacked jurisdiction to recall a sentence under section 1170(d) to allow the defendant to appeal discovery related issues.Defendant pled guilty to various drug related offenses after the trial court denied his suppression motion. Some time after sentencing, the parties believed defendant's discovery issues might not be cognizable on appeal because of the guilty plea, so the court recalled the sentence, allowed defendant to withdraw his plea, and allowed a court trial under the slow plea process. Defendant was convicted and the trial court imposed the same sentence. Defendant appealed from that judgment. However, the judgment was void as Penal Code section 1170(d) only permits recall for reasons related to lawful sentencing which this was not. The court lacked jurisdiction to recall the sentence.id: 20044
Trial court had jurisdiction to recalculate sentence following probation revocation and section 1170(d) time limit did not apply.Following a guilty plea in a drug case, defendant's four year sentence was suspended and he was placed on probation. His probation was later revoked following a guilty plea in an attempted pimping case. He argued the negotiated aggregate prison term of five years was illegal because the court lacked jurisdiction over the probation revocation matter in the drug case because his appeal in that case was pending and, the 120-day time limit under Penal Code section 1170(d) for modifying or recalling the term had expired. However, the court had jurisdiction to recalculate the sentence in the drug case and the section 1170(d) time limit was inapplicable.id: 19929
Penal Code section 1385 requires that reasons for the dismissal must appear in the court's minutes and the oral statement given at sentencing in this case did not satisfy the requirement.The trial court erred by striking additional punishment under Penal Code section 1385 without setting forth its reasons for doing so "in an order entered upon the minutes." The statement of reasons which appeared in the reporter's transcript did not satisfy the specific requirements of section 1385. Moreover, while the procedure used would have supported the dismissal under another provision (Health and Safety Code section 11379.8), the court specified that it was proceeding under section 1385.id: 19941
Trial court lacked authority to remove the sex offender registration requirement after revoking probation. Following a guilty plea, defendant was placed on probation and ordered to register as a sex offender. Probation was later revoked, and defendant was remanded to prison, but the court struck the previous order regarding the requirement under
Penal Code Section 290 to register as a sex offender. However, the court lacked authority to vacate the registration requirement.id: 19451
The denial of allocution was harmless where defendant was represented by counsel at sentencing and the mitigating information was set forth in the probation report.Defendant argued the trial court erred by denying him the statutory right to allocution pursuant to Penal Code section 1200. However, defendant did not establish any prejudice arising from the trial court's omission. He was represented by counsel throughout the proceedings including sentencing , and his mitigating information was set forth in the probation report.id: 18825
A defendant incarcerated in another state but awaiting sentencing in California was not entitled to be returned upon request.A defendant awaiting sentencing in California, but incarcerated in another state, was not denied equal protection of the laws (comparing his situation to arguably similar statutory provisions) when he was not returned to California for sentencing upon request.id: 18174
The appeal of an HIV testing order based on the lack of a probable cause finding or docket notation is subject to the general rule requiring a timely objection.Penal Code section 1202.1 provides that upon conviction of a lewd act with a child under section 288, defendant must submit to an HIV blood test if the court finds there is probable cause to believe body fluid capable of transmitting HIV has been transferred from the defendant to the victim. The court is required to note its findings on the docket and minute order if one is prepared. A defendant may not challenge such an order on appeal if he has failed to object to the absence of an express finding of probable cause or docket notation.id: 17644
The trial court did not have the option to sentence the Viet Nam veteran to a federal prison, despite the language of section 1170.9, since that program was never funded.Following a no contest plea, defendant requested sentencing pursuant to Penal Code section 1170.9. That section provides for a sentence to be served in a federal facility for treatment of substance abuse and psychological problems resulting from combat service in Viet Nam. However, while the provision is well intended it was never federally funded and, therefore, is a nonexistent sentencing option.id: 17588
Failure to object to sentencing choices precluded appellate review even where the trial court did not issue a tentative decision before the hearing.In People v. Scott (1994) 9 Cal.4th 331, the court held that a party in a criminal case may not challenge the trial court's discretionary sentencing choices on appeal if that party did not object at trial. The case also said trial counsel must have a meaningful opportunity to object. To effectuate that requirement, the trial court need not issue a tentative decision before the sentencing hearing.id: 17542
Following the reversal of a felony count on appeal, the aggregate term need not be decreased.On remand following the reversal of a felony count for which a subordinate term had been imposed, neither lack of jurisdiction nor res judicata bars the trial court from reconsidering its prior sentencing choices made under the normal rules of felony sentencing, including imposing a higher term for the principal, or base, term, so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence. Moreover, the trial court did not err by supporting its sentencing choice with aggravating factors it rejected the first time. Finally there was no error in failing to consider letters in mitigation, which were filed late, where the letters were not properly mitigating. Their untimely submission did not constitute the ineffective assistance of counsel.id: 17235
Court did not err at resentencing in selecting the upper term for the assault since the new term did not exceed the original aggregate term.Due to the fact that the original ten year sentence violated Penal Code section 1170.1, subdivision (e), which then limited imposition of enhancements, defendant was resentenced to a total term of eight years. He argued that on resentencing the trial court improperly selected the high base term for assault in order to achieve a total term as close as possible to the original term imposed despite having to stay the great bodily injury enhancement period. However, the new aggregate term of eight years did not exceed the original aggregate term of ten years, and was properly calculated by the court.id: 16113
Reducing a felony to a misdemeanor is improper where a prison sentence has been imposed before probation was granted.The trial court properly determined that Penal Code section 17, subdivision (b)(3), precludes the court from reducing felonies to misdemeanors where a prison sentence has been imposed before probation was granted.id: 16117
Trial court did not err after being informed of a technical error in the sentence in imposing the upper term on the primary count to reach the originally agreed upon ten year term.Defendant argued the trial court exceeded its jurisdiction when it determined after the original sentencing that aggravating factors existed to justify imposition of the upper term. He originally received a ten year term under the terms of the plea bargain. When the court was informed by the Department of Corrections that the middle term (imposed by the court) for the residential robbery was four years rather than six years, the court received the circumstances and determined the six year upper term was appropriate. This brought the sentence back to the ten year term originally contemplated. The trial court properly reviewed the sentence in its entirety after discovering a portion of it was illegally imposed.id: 16118
The trial court did not violate defendant's due process rights by failing to state reasons on the record for imposing a longer sentence than it originally imposed.Under a plea bargain, defendant agreed to plead guilty to three counts of residential burglary and one count of receiving stolen property. He waived jury trial on a fourth burglary count and on the prior conviction allegations. The prosecutor agreed to a maximum term of 26 years. In a court trial defendant was convicted of the fourth count and the priors were found true. The court fixed the sentence at 25 years. Defendant and the prosecutor appealed. The Court of Appeal agreed with the prosecutor that the trial court erred in staying a five-year sentence enhancement. On remand, the court reconfigured the sentence which then came out to 26 years. Defendant argued the court violated his due process rights by failing to state reasons on the record for imposing a longer sentence on remand. However, defendant's failure to object waived the argument. Moreover, in order to comply with the plea bargain the court had to reconfigure the sentence. The additional year defendant received did not reasonably suggest an effort to punish defendant for his unsuccessful appellate claims.id: 15273
Sentencing court may hear statements from more than one family member of the deceased victim.Penal Code sections 1191.1 and 1191.15 do not limit the participation on behalf of a deceased victim to one person. The court has discretion to hear from additional witnesses where appropriate. Moreover, allowing statements from family and friends of the victim did not deprive defendant of due process of law and his right to a fundamentally fair hearing. Finally, the receipt and consideration of the letters not expressly authorized by section 1191.1 and 1191.15 did not violate section 1204's prohibition against accepting any verbal or written statement in aggravation or mitigation of punishment except as provided in the statute.id: 13487
Nature of the crime was not an insufficient reason to impose a prison sentence rather than probation.Defendant argued the nature and seriousness of the offense was an inadequate reason for imposing imprisonment rather than probation following his plea of guilty to manslaughter. However, nature of the crime is not an insufficient reason for choosing probation. Moreover, the facts supported the sentencing choice where defendant had physically fought with the victim before committing the crime; and defendant deliberately abandoned the victim in the middle of the night and in relatively isolated location.id: 13401
Court had no jurisdiction to resentence defendant after the original sentence was entered in the minutes and the notice of appeal was filed.At the sentencing hearing, the court noted that defendant received a Silver Star in Vietnam and for that reason, imposed the middle term of three years. The codefendant received the aggravated term. The court was later informed by the prosecutor that defendant had never been awarded the Silver Star medal. At a subsequent hearing, the court stated that due to the misrepresentation the sentence was being modified to the upper term. However, only the initial sentence was valid. The resentencing was void because the initial sentence had previously been entered in the minutes and the notice of appeal filed immediately after the initial sentence divested the trial court of jurisdiction to modify the judgment as originally pronounced.id: 13375
Court retained jurisdiction to vacate the first sentence and resentence defendant where defendant never began serving the first sentence.Defendant was convicted of several offenses and sentenced. Shortly after the sentence had been pronounced the court was advised defendant was under age 18 when the crimes were committed. The court vacated the sentence and remanded defendant to CYA for an amenability report. The CYA found defendant not amenable to CYA treatment. The court reinstated proceedings and resentenced defendant. Defendant argued the court lacked jurisdiction to vacate the first sentence and to resentence him because the execution of sentence began when the court remanded defendant to custody following the first sentence. However, the oral pronouncement was ineffective to commence execution of the first sentence. Since defendant never began serving the first sentence the trial court retained jurisdiction to vacate the first sentence and resentence defendant.id: 13376
Defendant may not raise the issue of the court's failure to recommend substance abuse counseling for the first time on appeal.Defendant argued the trial court erred by failing to recommend that he participate in a substance abuse counseling or education program while imprisoned pursuant to Penal Code section 1203.096. However, a defendant who fails to request findings pursuant to section 1203.096, subdivision (b), or to object to the trial court's failure to make such findings, thereby waives his or her right to raise the issue for the first time on appeal.id: 13378
Defendant must raise specific objections at sentencing to preserve the issues for appeal.A defendant cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons. A defendant's objections regarding claimed sentencing mistakes must be sufficiently specific and meaningful to allow the trial court to correct the errors. Moreover, the sentencing judge has no obligation when faced with an omnibus objection, to inquire further in an effort to ferret out the basis for the objection as it may exist in the mind of defense counsel.id: 13379
Facts supported the stated reason that defendant's prior record was significant in the sense that it indicated a lack of amenability to probation supervision.In selecting imprisonment over probation, the trial court noted that defendant's prior record was significant. The facts supported the court's prior record sentencing reason as the defendant had previously been convicted of attempted robbery, resisting arrest and grand theft. These facts supported the determination that defendant's prior criminal record was significant in the sense that it indicated a lack of amenability to probation supervision.id: 13380
Mere sentencing error by the original judge does not require a new judge at resentencing.Defendant argued that on remand a new judge should reside at resentencing. However, mere sentencing error does not justify removing the trial judge since it does not reflect a lack of objectivity implicating the interest of justice.id: 13381
No error in failing to continue sentencing hearing based on the failure to provide a timely probation report where defendant was ineligible for probation.Defendant argued the court erred in failing to continue his sentencing hearing where he did not receive the probation report until the day of sentencing. However, defendant was ineligible for probation, and such defendants suffer a due process violation only when they establish they received an untimely probation report which resulted in prejudice.id: 13382
Order denying motion to modify the sentence after the court had lost jurisdiction to do so was not appealable.On April 12, 1991, the court denied defendant's motion to modify his sentence under Penal Code section 1170, subdivision (d), after finding the court no longer had jurisdiction following the expiration of the 120-day period as provided in that section. Defendant appealed the order. However, the April 12 order constitutes an order made after judgment and is appealable only if it affects defendant's substantial rights. According to the terms of section 1170, subdivision (d), a defendant has no standing to bring the motion to recall his sentence. Therefore, denial of the instant motion could not have affected defendant's substantial rights. The order denying the motion to modify the sentence was not an appealable order.id: 13383
Original sentence omitting reference to restitution award was invalid and defendant was properly resentenced.Defendant argued the original sentence which made no provision for victim restitution was a valid sentence. However, victim restitution was mandatory under Penal Code section 1202.4 and California Constitution, article 1, section 28, subdivision (b). Since the court did not state clear and compelling reasons for not awarding restitution, the sentence was invalid and the trial court properly resentenced defendant and included a restitution award.id: 13385
Sentencing court's inadvertent reference to the wrong subdivision in the enhancement statute did not negate the enhancement.Defendant was charged with a methamphetamine offense included within Health and Safety Code section 11370.2, subdivision (b), and with a qualifying prior. He pleaded guilty to the methamphetamine charge and admitted the prior. His conduct as admitted and as charged subjected him to the enhancement. However, at sentencing the trial court simply misspoke in referring to subdivision (a) of the statute rather than the applicable subdivision (b). Defendant argued the inadvertent misstatement in referring to the wrong subdivision, entirely viviated the effort to impose the enhancement. However, there was no basis for such relief and the abstract of judgment was amended to refer to subdivision (b) of the statute.id: 13388
Trial counsel must object to a sentencing court's statement of reasons in order to preserve the issue for appeal.Defendant argued the Court of Appeal erred in holding that defects in the trial court's statement of reasons are waived unless challenged at the time of sentencing. However, complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. In reaching its conclusion the Supreme Court articulated a new mandatory sentencing procedure whereby the sentencing court must announce a tentative ruling <U>before</U> arguments and solicit objections from the parties. The ruling must embrace discretionary choices and reasons and a determination as to whether the court intends to adopt the recommendation in the probation report. Such rule is to be applied prospectively only.id: 13395
Trial court did not have to state reasons for imposing an increased sentence as compared to the first sentence.The trial court sentenced defendant, then vacated the sentence and resentenced him. Defendant argued the court erred by failing to explain its reasons for resentencing defendant to a longer prison term than in its first sentence. However, as long as the decision ultimately made is supported by the reasons given for it, it is not so arbitrary and capricious as to constitute an abuse of discretion. The trial court did not have to state reasons for imposing an increased sentence as compared to the first sentence.id: 13396
Trial court does not act in excess of its jurisdiction by giving an indicated sentence to a career criminal.The statutory scheme governing the prosecution of career criminals, Penal Code section 999b, et seq., does not prohibit a trial court from indicating the sentence it will impose if a given set of facts is confirmed, and the accused enters a guilty plea to all pending charges and admits all special allegations.id: 13397
After 120 days the court no longer had jurisdiction to recall defendant's sentence under section 1170, subdivision (d).Defendant was sentenced on September 11, 1990. On October 31, 1990, he sent a letter to the court asking to be resentenced pursuant to Penal Code section 1170, subdivision (d). The court did not purport to recall the sentence until March 7, 1991, when it initially granted the motion to modify the sentence. However, by then, the 120-day limit under section 1170, subdivision (d) which began to run on September 11, had expired. As a result, at the April 12, 1991 hearing, the court was correct in finding it no longer had jurisdiction to recall the sentence and properly denied the motion to modify the sentence.id: 13368
Appellant's earlier drug use, without more, was insufficient to put the court on notice that he was an addict or in danger of becoming addicted for purposes of section 3051 commitment.Appellant's initial probation report in 1986 showed that he had a history of alcohol abuse and had used marijuana, LSD and heroin. At the time he committed the underlying crime in 1986, he stated that he was wired up on crank. However, at his probation interview five months later, he stated he had not used drugs since that time, and drugs were not a problem in his life. At the sentencing hearing after his probation was revoked, three years later appellant made no mention of current or past substance abuse problems or the need for an evaluation regarding a possible Welfare and Institutions Code section 3051 commitment. The evidence was insufficient to put the trial court on notice, as a matter of law, at the sentencing hearing on revocation of probation that appellant may be addicted or is in imminent danger of being addicted to narcotics.id: 13369
Court did not err in failing to specifically state why it was imposing a prison term for the wobbler.Defendant was convicted of a wobbler which is punishable as a felony or a misdemeanor. He argued the court's decision to impose a prison sentence required a statement of reasons. However, the court's stated reasons for denying probation and imposing the upper term clearly indicated the court had no intention of reducing the offense to a misdemeanor. Moreover, defendant waived the issue since he was aware the count would be treated as a felony and had ample opportunity to object to the imposition of the upper term.id: 13371
Court did not err in failing to consider the option of commitment to federal custody for a Vietnam veteran where no federal program currently exists.Defendant argued the court failed to consider the option of federal custody for him (pursuant to Penal Code section 1170.9), instead of a commitment to state prison, because of his status as a Vietnam combat veteran, and his psychological and narcotics problems, which are asserted to have been occasioned by his service in Vietnam. However, a condition of sentencing under section 1170.9 is that appropriate federal program exist. At this time, they do not. Until such time as federal law authorizes receipt into appropriate federal programs of Vietnam combat veterans convicted of a felony, which is not now possible, there can be no abuse of discretion by reason of a court's failure to consider a non-existent sentencing option.id: 13372
Court did not err in sentencing defendant to a jail term for cocaine possession after his PCP sale conviction had been vacated even though he had completed a jail term for that conviction.In 1987 defendant pled guilty to possession of phencyclidine for sale and the court dismissed the possession of cocaine count. After completing his probation (including one year in county jail) he successfully set aside the prior conviction and guilty plea. He then pled guilty to the possession of cocaine charge and was acquitted of the possession of phencyclidine for sale. The court imposed the two year mid term but suspended execution of sentence and placed defendant on probation which included a one year jail term. The sentence was not "vindictive" as nothing in the record indicated it was intended to punish defendant for exercising a procedural right. Moreover, once he relinquished the original plea bargain, nothing precluded the imposition of a sentence more harsh than that originally imposed. Furthermore, the current sentence was not "more severe" simply because it constituted punishment additional to that already served in the 1987 sentence. Defendant was not entitled to credit for the time already served where the court imposed one sentence on one charge, that conviction was vacated and the court then imposed another sentence on another charge. Finally, defendant argued the cocaine charge was less serious and a less severe sentence was warranted. However, seriousness of the offense is only one factor in sentencing and defendant's positive drug test in 1990 justified the sentence.id: 13373
Trial court had jurisdiction to correct the sentence and order an AIDS test.Defendant argued the trial court lacked jurisdiction to order a blood test for evidence of the AIDS virus pursuant to Penal Code section 1202.1 after he commenced his prison sentence. The trial court did not lack jurisdiction because the court's failure to order the AIDS test rendered the sentence unauthorized and subject to correction at any time.id: 12060
Unlike an adult offender, a juvenile does not have a right to speak personally before pronouncement of judgment.California's statutory right of allocution encompasses a right of defendants to make personal statements in their own behalf and present information in mitigation of punishment. However, allocution is not required in juvenile proceedings because juveniles have the opportunity to testify at dispositional hearings and address the court on the subject of disposition.id: 11718
Defendant was not entitled to specific performance of an indicated sentence where the sentencing court subsequently learned of two prior prison terms.Defendant was sentenced to a ten year prison term following a plea of guilty to attempted murder, assault with a deadly weapon and several enhancements. He argued he should have received no more than seven years which was the indicated sentence originally offered by the trial court over the objection of the prosecution. At the time the court indicated the sentence it had no knowledge of defendant's two prior prison terms. Defendant was not entitled to specific performance of the indicated sentence. He was informed the seven year sentence was not a promise. He then pleaded guilty a second time knowing he would receive nothing less than ten years and he was given an opportunity to withdraw his plea, which he refused. He was entitled to nothing more.id: 11545
The sentencing court lacked discretion to alter the terms of the negotiated plea by imposing a probationary sentence rather than a prison term.The prosecution agreed to dismiss one of two counts, in exchange for which defendant agreed to plead guilty to possession of an explosive device and to be sentenced to three years in state prison. During the plea hearing the court accepted the terms. It thereafter lacked jurisdiction to alter the terms of the plea bargain so that it became more favorable to defendant. The trial court had authority to withdraw its approval of the plea, but not to grant probation.id: 11510
After one count was dismissed following a legal error it was perfectly proper for the trial judge to reimpose the same sentence in a different manner.In its first review of the case, the Court of Appeal reversed one count of attempted robbery with directions to dismiss. By changing a stayed sentence on one count to a consecutive one, the judge reimposed the original term. Defendant argued the court erred in basing its resentencing decision on its subjective feeling about the sentence. He claimed the court is not permitted to reason backward to permit a particular sentence. However, it was perfectly proper for the trial judge to reimpose the same sentence in a different manner. Moreover, double jeopardy principles did not bar the change in the disposition of count 1 and defendant was not punished for a successful appeal. Although one component of the sentence was raised, the overall sentence was not increased.id: 9815
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245