Determinate Sentence Law, generally
Category > Determinate Sentence Law, generally
Updated 3/6/2024Exception to the one-third the base term rule does not apply to a crime committed while the defendant was serving a prison term but was released before sentencing on the in-prison offense. Penal Code section 1170.1 (c) provides for a full consecutive term (rather than one-third the mid term under section 1170.1 (a)) where a defendant commits a felony while confined in state prison. If the defendant commits a felony while serving a prison sentence but is sentenced for the in-prison felony after completing the prison term, section 1170.1 (c) does not apply to the sentence for the crime committed in prison.id: 26594
Updated 3/4/2024Case was remanded for a full resentencing following SB 567 where childhood trauma may have played a role in the crime.The trial court imposed the aggravated 10 year term for the Vehicle Code section 2800.3 conviction and ran the terms consecutively. However, remand for a full resentencing was required where SB 567 was enacted after the sentencing. That provision modified Penal Code section 1170(b) to specify that the lower term may be appropriate if the defendant suffered childhood trauma. The record shows the trial court may have imposed a different term if it considered the factors the law now finds are inappropriate.id: 28186
Updated 2/4/2024Upper term imposed after it was negotiated in the plea was remanded in light of SB 567.Defendant’s sentence to the aggravated term as a condition of his negotiated plea agreement did not negate the requirements imposed on the court by amended Penal Code section 1170(b), which was retroactively applicable to him. The upper term was based solely on the fact that it was the negotiated term. The court did not state in the record that it relied on any aggravating factors when imposing the term. The matter was remanded for resentencing.id: 27640
Updated 2/4/2024SB 567 requires a stipulation or true finding by the jury of aggravating factors before the court can impose the upper term.The trial court imposed an upper term for defendant’s assault by a prisoner conviction. However, the case was remanded for resentencing under SB 567 where the aggravating circumstances were neither found true by a jury or stipulated to by the defendant.id: 27673
Updated 2/3/2024Proper remedy for a violation of SB 567 was a remand to allow the trial court to properly use its discretion in deciding on the middle or upper terms.The trial court imposed upper terms on various counts based on certain aggravating factors including vulnerable victims, sophisticated manner of committing crimes and violent conduct. The sentence was erroneous under SB 567 which became effective after sentencing. While the prosecution argued the error was harmless, the proper remedy was to remand the case allowing the trial court to properly exercise its discretion under amended Penal Code section 1170(b).id: 27690
Updated 2/3/2024Imposition of the upper term was erroneous under SB 567, and the case was remanded for resentencing where the error was not harmless.Defendant’s sentence to the upper term on the attempted voluntary manslaughter count and the firearm use enhancement did not satisfy the new requirements of Penal Code sections 1170(b) and 1170.1(d)(2), enacted as part of SB 567. Remand for resentencing was required where it could not be determined that the error was harmless. Defendant was entitled to a full resentencing.id: 27709
Updated 2/3/2024SB 567 was retroactive and the case was remanded to determine whether the low term should be imposed in a case where defendant was under 26 at the time of the offense. Penal Code section 1170(b) was recently amended in Senate Bill 567 to provide that the lower term be imposed in most cases where the defendant was under age 26 at the time of the offense. The new law which became effective on Jan. 1, 2022 applied retroactively to the defendant’s case. Rather than simply impose the lower term, the court remanded the matter to the trial court to apply the new law. id: 27767
Updated 2/3/2024Section 1170(b)(6), added as part of SB 1393 does not apply to a negotiated disposition that includes an agreed-upon term of imprisonment.Defendant argued that under Penal Code section 1170(b)(6), the trial court was required to find the aggravating factors outweighed the mitigating factors before imposing something greater then the lower term. However, section 1170(b)(6) does not apply to sentence imposed pursuant to a negotiated disposition that includes an agreed-upon term of imprisonment.id: 27671
Updated 2/3/2024Defendant who received an upper term pursuant to a stipulation in the plea agreement was entitled to a remand under SB 567.Defendant who received the upper term under a plea agreement for a stipulated sentence was entitled to a remand under SB 567 to ensure the requirements of Penal Code section 1170(b) are met.id: 27858
Updated 2/2/2024Imposition of the upper term was invalid under SB 567 and the case was remanded for resentencing.The trial court imposed an upper term sentence in this case before SB 567 took effect. That provision, which is applied retroactively to nonfinal cases, limits a sentencing court’s ability to impose the upper term. Resentencing is unwarranted only where the upper term remains valid under federal and state law, and the record shows the court would have imposed the high term had it been aware of the new law. Resentencing was required where there was no such showing.id: 27899
Updated 2/1/2024SB 567 requires that aggravating factors used to support an upper term must be found true by the jurors beyond a reasonable doubt.The trial court imposed an upper term sentence based on a number of aggravating factors. During the appeal SB 567 became effective, and the provision modified Penal Code section 1170(b) and now requires that aggravating factors be found true beyond a reasonable doubt by a jury or stipulated to by the defendant. There is an exception for prior convictions. Defendant had a prior conviction but the record did not show the trial court would have imposed the upper term based on that factor alone. So the case was remanded for resentencing where AB 518 may also be employed as that provision says the court need not impose the longer term when defendant was convicted of more than one offense arising from the same conduct.id: 27994
Updated 2/1/2024The new sentencing laws under SB 567 and AB 518 are to be applied retroactively.Senate Bill 567 (amending Penal Code section 1170(b) as it relates to the presumptive term) and Assembly Bill 518 (amending section 654) apply retroactively, and the case was remanded to allow the trial court to resentence the defendant under the new law.id: 28003
Updated 1/31/2024Remand was appropriate under SB 567 where the record did not show the jurors would have found aggravating factors in support of the upper term to be true beyond a reasonable doubt.SB 567, enacted while defendant’s appeal was pending, amended Penal Code section 1170(b) and provides the upper term can be imposed only where aggravating factors found true beyond a reasonable doubt or there is a stipulation. The error in this case was not harmless where the record did not show the jurors would have found the aggravating factors relating to defendant’s longstanding misconduct to be true under that standard.id: 28023
Attemped sex crimes are not listed in the one strike law and the court should have sentenced defendant on the attempted sodomy count using section 1170.1.Attempted sodomy is not an offense enumerated in the one strike law. The trial court therefore erred by imposing a full consecutive middle term for the offense, as it was obligated to determine the sentence in accordance with the sentencing scheme found in Penal Code section 1170.1.id: 22760
Sentence for the subordinate term should be one-third the mid term where that offense carries a determinate term even though accompanied by an enhancement which carries an indeterminate term. Defendant was convicted of two counts of attempted murder with no finding of premeditation. The court imposed the seven year middle term for count one plus 25 years-to-life for the Penal Code section 12022.53, subd.(d) firearm use enhancement. On count two, the court added a full consecutive sentence of seven years plus 25 years-to-life for the firearm enhancement. However, the court should have imposed only one-third the mid-term for count two under Penal Code section 1170.1, subd.(a). While the limit does not apply to offenses that carry indeterminate terms, it does apply where the second offense carries a determinate term even though accompanied by an enhancement with an indeterminate term. id: 21807
The sentencing court erred by finding that section 1170.01 required that it impose the longer aggregate sentence.Defendant pled guilty to one felony count in each of three
drug offense cases in exchange for an aggregate sentence of either six years or six years and eight months. The sentencing court was to determine the length of the aggregate term. The court chose the longer aggregate term. However, the court failed to exercise its sentencing discretion because it erroneously determined the longer sentence of six years and eight months was required under Penal Code section 1170.1. That provision requires that the court designate as the principle term the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads.id: 19353
The double-the-base term limitation applies to mixed felony and misdemeanor sentences.Defendant was convicted of several theft-related felonies and misdemeanors. He received an aggregate sentence exceeding that which could have been imposed under the double-the-base term limitation of Penal Code section 1170.1, subdivision (g) had all of the charges been felonies. However, the double-the-base term limitation applies to mixed felony and misdemeanor sentences, and the trial court erred in imposing a greater sentence.id: 13830
Section 1170.1, subdivision (c) required the sentencing judge to impose a single aggregate sentence for both in-prison offenses even though they occurred far apart in time.Defendant was convicted of possession of a weapon while in prison under Penal Code section 4502. The court imposed a full four-year upper term consecutive to any and all other sentences he is now serving, including a 1986 term he received for another offense he committed in prison. He argued that pursuant to section 1170.1, subdivisions (a) and (c), the court instead should have imposed a sentence of one-third the middle term. Section 1170.1, subdivision (c) required the sentencing judge to impose a single aggregate sentence for both of defendant's in-prison offenses, even though they occurred far apart in time.id: 13829
Court erred in imposing consecutive terms for the gun use enhancements while imposing concurrent terms for the robbery conviction in the same counts.Defendant pled guilty to three counts of robbery and admitted that he personally used a firearm during each robbery. The gun use enhancements were not separate crimes and could not stand alone. In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned the sentence in an unauthorized manner under the sentencing procedure. The matter was remanded for resentencing and the prohibition against double jeopardy prohibits the court from imposing a greater sentence on remand.id: 13825
The court erred when it imposed the determinate term to run consecutive to the indeterminate term but without selecting a principal count for the determinate term.The court imposed the determinate term to run consecutively to the indeterminate term, with the determinate counts to be served at one-third of the middle term. However, even though a determinate term is served consecutively to an indeterminate term, the court must select one count to be the principal term that is served for the full amount of the upper, middle or lower term.id: 18342
Consecutive sentences under section 1170.15 are only required if the dissuasion of a witness involved the present underlying felony.Penal Code section 1170.15 provides for full term consecutive sentences when a defendant is convicted of a felony, and also convicted of dissuading or attempting to dissuade a witness to the first felony from reporting or giving testimony regarding the first felony. It does not apply unless the testimony or reporting with which the defendant tried to interfere related to the first felony.id: 16490
Under the DSL the court retains jurisdiction to grant probation once denied where a defendant on appeal obtained a reversal as to some counts.Defendant was convicted of assault and commercial burglary and was sentenced. On appeal the court reversed the assault conviction. The Determinate Sentencing Law changed the prior rule that once execution of the sentence had begun, the court lost jurisdiction to resentence or consider a renewed application for probation. Accordingly, the trial court retained jurisdiction to resentence on the commercial burglary when the assault conviction was reversed. The trial court had full authority to select any sentencing choice allowed by applicable law, including probation.id: 13600
Updated 3/4/2024Upper term for corporal injury conviction was not required to be reconsidered after SB 567 given defendant’s numerous prior convictions, which justified the upper term. Defendant argued that he was entitled to a resentencing of his corporal injury of a girlfriend conviction based on recently enacted SB 567, which limits a trial court’s authority to impose an upper term unless certain circumstances exist. However, the upper term was proper in light of additional aggravating factors including defendant’s numerous adult prior convictions and the fact that he was on probation at the time of the offense. id: 27841
Updated 3/4/2024Remand was required to allow the trial court to apply the low term under SB 567 in light of the evidence of childhood trauma.Recently enacted SB 567 provides a presumption for the lower when, among other things, a childhood trauma may have contributed to the offense. Defendant received the middle term in a case where defendant had a history of drug use caused by family trauma. Remand was required where the record did not show the same sentence would have been imposed if the court had recognized its discretion to impose the same sentence it imposed before the new law.id: 28134
Updated 3/4/2024Defendant’s prior convictions can still be used to support an upper term, and rule 4.421(b) does not constitute an unlawful delegation of legislative authority to define punishments.The trial court imposed the upper term after finding true four factors relating to defendant’s criminal history. Contrary to defendant’s argument, the court may still rely on a defendant’s prior convictions to impose an upper term. Moreover, Cal. Rules of Court, rule 4.421(b), which describes certain aggravating factors was not an improper delegation of power from the Legislature.id: 28193
Updated 2/4/2024Penal Code section 1170(b), as amended by SB 567 does not apply when a defendant enters a plea agreement with a stipulated term of imprisonment.Defendant argued that he was entitled to resentencing under SB 567 because the court imposed an upper term without relying on aggravating factors stipulated to by the defendant or found true by a jury beyond a reasonable doubt. However, the provision did not apply to defendant who entered a plea with a stipulated prison term.id: 27638
Updated 2/4/2024California law does not require unanimity in jury’s determination of factually disputed aggravating circumstances. Neither the California Constitution nor Penal Code section 1042 require the penalty phase jury to unanimously determine “all issues of fact” included in the factually disputed aggravating id: 27479
Updated 2/4/2024SB 567 did not require a remand for resentencing where defendant’s sentence was imposed pursuant to a stipulated plea agreement.SB 567, which limits the trial court’s ability to impose an upper term sentence about a stipulation on a finding of aggravated circumstances at trial, applies retroactively to cases not yet final on appeal. However, it did not apply where the defendant’s sentence was imposed pursuant to a stipulated plea agreement.id: 27575
Updated 2/4/2024Remand was unnecessary following the passage of SB 567 where defendant agreed to the terms of the indicated sentence.After defendant was sentenced SB 567 became law. That provision calls for the imposition of the middle term where there’s no stipulation to the aggravating factors and they were not proven beyond a reasonable doubt. Defendant’s case need not be remanded for resentencing where the defendant agreed to the indicated sentence after the court considered the aggravating and mitigating factors.id: 27588
Updated 2/3/2024The imposition of the upper term prior to SB 567 was harmless where the record showed the court would not have imposed a more favorable term upon resentencing.The resentencing court dismissed a strike prior sparing defendant a 25 years-to-life Three Strikes sentence. The trial court did not err in imposing the upper term for the offense under newly enacted SB 567 where the record indicated the court would not have imposed a more favorable sentence upon remand.id: 27528
Updated 2/3/2024SB 567 error was harmless where there was no reasonable likelihood the jurors would not have found the remaining aggravating factors true.Defendant’s sentence to the upper term was not consistent with the requirements of SB 567 because the record does not show the aggravating factors were proven by certified records, defendant’s admission, or proven beyond a reasonable doubt. The correct standard for harmless error requires a determination of whether the jury would have found one factor true beyond a reasonable doubt and whether the jury would have found any remaining factors true. If not, the court asks whether there is a reasonable probability the court would have imposed a lesser term. There was no reasonable likelihood the jurors would not have found defendant’s remaining priors at the time so the error was harmless.id: 27531
Updated 2/3/2024SB 567 does not require the prosecution to plead aggravating factors used to impose an upper term.Defendant argued the trial court’s imposition of the upper term was unauthorized because the prosecution did not plead any aggravating factors as required by SB 567. However, Penal Code section 1170.1(e) applies to enhancements, not factors in aggravation used to impose an upper term.id: 27712
Updated 2/3/2024AB 567 is retroactive to nonfinal cases and the provision does not require that aggravating factors used to support the upper term be proved BRD.Assembly Bill 567’s revision to the determinate trial sentencing under section 1170 is retroactive. As to the latter, an aggravating circumstance considered by the court in determining whether the lower term would be contrary to the interest of justice need not be proved beyond a reasonable doubt to a jury, or to a court if the jury is waived.id: 27713
Updated 2/3/2024The sentencing court was not required to make an express finding under section 1170(b)(6)(B) where there was no showing in the record that defendant’s youth played a role in the crime.Newly enacted Penal Code section 1170(b)(6)(B) establishes a presumption favoring the low term if defendant’s youth was a contributing factor unless the aggravating factors outweigh the mitigating factors such that imposition of the low term would be contrary to the interest of justice. Defendant was 23 years old at the time of her original offense. The trial court was not required to make an express finding regarding the presumption because nothing in the record showed defendant’s youth was a contributing factor in the commission of the underlying offense.id: 27860
Updated 2/2/2024Unauthorized sentence exceptions to the forfeiture doctrine did not apply where the sentence in question could legally have been imposed.The trial court resentenced defendant and imposed the upper term after he violated probation. Defendant argued on appeal that he was entitled to a new resentencing where the court could apply SB 567 or AB 124 to reach a lower term. However, the issue was forfeited due to the failure to raise the issue at sentencing. The unauthorized sentence exception to the forfeiture doctrine did not apply and defendant failed to show that an objection would have been futile.id: 27900
Updated 2/1/2024Imposition of the middle term under section 1170(b)(6) did not implicate ApprendiThe trial court’s determination that imposition of the lower term was contrary to the interests of justice did not violate defendant’s jury trial rights under Apprendi. The language and framework of AB 124 show the Legislature intended to maintain the sentencing court’s ability to impose the middle term even if it finds defendant falls within one of the three categories described in Penal Code section 1170(b)(6). Imposition of the low term becomes presumptive only after the sentencing court makes findings in addition to those supporting the jury’s verdict.id: 27907
Updated 2/1/2024Remand was not required under SB 567 where the defendant’s background made it very unlikely the jurors could have rejected an aggravating factor.Relying on recently enacted SB 567, defendant argued resentencing on his corporal injury conviction was required given the trial court’s imposition of the upper term without jury findings on a stipulation regarding the aggravating factors. However, the court found remand for resentencing was unnecessary where it was satisfied beyond a reasonable doubt the jury would have found true at least one aggravating factor as the probation report identified multiple sustained juvenile delinquency petitions and adult convictions, and further established he was on probation when he committed the present offense.id: 28019
Updated 1/31/2024SB 567 applied retroactively but remand was not required to impose the low term given defendant’s lengthy history of committing serious crimes.Defendant was convicted of false imprisonment and other offenses and received the mid term of three years, doubled because of a strike prior. He argued that SB 567 enacted after his sentence was imposed, requires a resentencing. The new law adds Penal Code section 1170(b) which requires the low term be imposed where (as here) the defendant suffered a childhood trauma unless the court finds the aggravating factors outweigh the mitigating factors such that the lower term would be contrary to the interests of justice. Remand was not required here given defendant’s 30 years of committing serious crimes and the court's proper denial of defendant’s Romero motion.id: 28026
A full consecutive term for a misdemeanor was authorized for the sentence imposed under the Realignment Act.Defendant was convicted of both felony and misdemeanor resisting arrest. The punishment for the Penal Code section 148, subd.(a)(1) violation includes a jail term not to exceed one year. The court imposed a one year jail term to run consecutive to the felony term, but defendant argued that under section 1170.1, subd.(a) the authorized term was one-third of that term — four months. However, the one-third the mid term limitation applies only to consecutive felony terms. A different interpretation is not required where the sentence was imposed under section 1170, subd. (h).id: 24750
The trial court did not err by imposing a full term for the second attempted murder count because the DSL did not apply in light of the life term for the gun use enhancement. Defendant was convicted of two counts of attempted murder with no finding of premeditation. He argued that he should have been sentenced on the second count to one-third the base term. However, there was also a 25 years-to-life enhancement for the use of a firearm. The Determinate Sentencing Law does not apply where there is any indeterminate term. Therefore, the court did not err by imposing the full seven year middle term sentence for the attempted murder in count two. id: 21487
An indeterminate enhancement does not merge with a determinate offense to bring the entire term within the indeterminate sentencing law. The trial court sentenced defendant to seven years for the attempted murder in the first count, plus 25 years-to-life for the firearm use enhancement under Penal Code section 12022.53, subd.(d). On count two, the court added a full consecutive sentence of seven years, plus 25 for the firearm use enhancement. However, Penal Code section 1170.1 mandates that the subordinate term consist of one-third the middle term. An indeterminate enhancement does not merge with the determinate offense to bring the entire term within the indeterminate sentencing law.id: 21844
The trial court did not err by increasing the term for the original subordinate offense after granting Prop 47 relief on the offense that was designated the principal term. In case one, defendant was sentenced to eight months which was one-third of the two year midterm, to be served consecutive to the three year principal term of case two. The trial court later denied Prop 47 relief as to case one but granted it as to case two and resentenced defendant to two years county jail in case one. The increased sentence as to case one was not improper and the recomputed term was less than the prior aggregate term.id: 24329
Supreme Court says Washington sentencing guidelines trigger Apprendi.Washington state law sets maximum terms of imprisonment for various classes of felonies. Other statutes limit the range of sentences beneath that maximum that a judge can impose for each offense, but allow for sentences above those ranges in "exceptional cases." To impose an "exceptional" sentence, a judge must find that the case involves factors not taken into account in setting the sentencing range. Defendant, convicted of kidnaping, had a sentencing range of 49 to 53 months, but the court departed upwards to a 90-month sentence because of the cruelty of defendant's offense. The Supreme Court held that defendant's sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that facts, other than the fact of a prior conviction, that increase the penalty for a crime must be submitted to a jury and proved beyond a reasonable doubt. The Court held that the statutory maximum for purposes of this rule is the maximum sentence the judge may impose based on the facts found by the jury or admitted by the defendant. The majority expressed no opinion on the Federal Sentencing Guidelines, but Justice O'Connor, in a dissent joined by Justice Breyer on this point, said that "[i]f the Washington scheme does not comport with the Constitution, if is hard to imagine a guidelines scheme that would."id: 20164
The determinate sentencing procedure described in section 1170.1 does not apply to indeterminate terms or concurrent sentences.Defendant was convicted of murder along with other offenses. The trial court erred by treating the indeterminate term imposed on the murder count as the principal term and imposing one-third the middle term on count two - treating that count as the subordinate term because Penal Code section 1170.1 doesn’t apply to indeterminate terms. The court also erred by imposing one-third the mid term for count three (robbery) to run concurrent since section 1170.1 doesn’t apply to concurrent terms. If the court wanted to impose a concurrent term for count three it needed to select the lower, middle or upper term.id: 23393
The trial court did not err in imposing the upper term where there was at least one valid aggravating factor.The trial court did not err by imposing the upper term for the firearm possession count. The sentence was imposed after March 30, 2007, when the Determinate Sentencing Law was amended to eliminate the presumption of the middle term following Cunningham. And there was no abuse of discretion in imposing the term even if the court relied on certain improper factors where there was at least one valid factor - the threat defendant continued to pose to Smith and his wife.id: 23240
The trial court did not err by imposing the full consecutive three-year enhancement for the admitted prior conviction under section 11370.2, subd.(a). Defendant was convicted of two felony sex offenses. He also admitted a prior narcotics conviction alleged as an enhancement pursuant to Health and Safety Code section 11370.2, subd.(a). He argued the trial court erred by sentencing him to a full three year sentence for the enhancement, and that the term should have been limited to one year under Penal Code section 1170.1, subd.(a). However, the prior conviction enhancement contained in section 11370.2, subd.(a) is not subject to the one-third. limit. The trial court did not err in imposing a full consecutive term for the prior conviction.id: 22789
The 25 years-to-life term for the section 12022.53, subd.(d) enhancement is not subject to the one-third the base limitation of section 1170.1.Defendant was convicted of several counts including shooting at Magana from a vehicle. The jury also found he discharged a weapon within the meaning of Penal Code section 12022.53, subd.(d). The court later imposed a 25 years-to-life term for the enhancement. Defendant argued the minimum parole eligibility period for the enhancement must be limited to one-third of the term or eight years and four months to life. However, the section 1170.1, subd.(a) limitation does not apply to indeterminate sentences and the court must impose the full 25 years-to-life term for the enhancement.id: 21304
When faced with determinate and indeterminate terms, the trial court erroneously applied the principal term/subordinate term methodology to all of the offenses. Defendant was convicted of murder which carries an indeterminate term as well as attempted robberies which carry a determinate term. However, the court failed to separate the two types of sentence. Specifically, the court erroneously applied the principal term/subordinate term methodology in Penal Code section 1170.1 to all of the offenses. The matter was remanded for resentencing.id: 21240
Under the three strikes law, Penal Code section 667(a) enhancements are to be applied individually to each count of a third strike sentence.In People v. Tassell (1984) 36 Cal.3d 77, the court held that when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. However, Tassell's holding does not apply to multiple indeterminate third strike sentences imposed under the three strikes law where a prior conviction enhancement may be added to the third strike sentence for each new offense.id: 18141
The trial court did not err in imposing one-third of the upper term on the subordinate gun-use enhancement.Defendant argued the trial court erred as a matter of law in calculating the sentence for the gun-use enhancement related to the subordinate robbery count. As part of the subordinate term the court imposed one-third the upper term of 10 years for the related gun use enhancement. Defendant argued that under Penal Code section 1170.1, subd.(a), the trial court was required to use the middle term of four years. However, the court was not so limited. It had the discretion to use any of the enhancement's terms (upper, middle or lower) in calculating the subordinate term.
id: 17901
10 year limit on subordinate terms applied only to nonviolent robberies with use of a deadly weapon and was not a limit on the cumulative subordinate term imposed for that kind of robbery as well as the other offenses.Penal Code section 1170.95, subdivision (g) calculates subordinate terms for nonviolent robberies with deadly weapon use and provides that the total term cannot exceed ten years. The ten year limit on subordinate terms applies only to nonviolent robberies with the use of a deadly weapon and is not a limitation on the cumulative subordinate term imposed for that kind of robbery as well as for other kinds of offenses.id: 16221
Court properly imposed full term enhancements for the straight life term as well as for the 25 years to life term.Defendant was convicted of first degree murder as well as premeditated attempted murder. The court imposed full firearm use enhancements for both crimes. Defendant argued the court should only have imposed one-third of the term for the enhancement on the attempted murder charge. However, both straight life terms and sentences of a number of years to life are indeterminate sentences not subject to the Determinate Sentencing Act. Therefore, the court properly imposed full enhancements for the murder and attempted murder counts.id: 16222
Term "not more than three years" in tax fraud statute prescribes an indeterminate term of three years.Revenue and Taxation Code section 19405 provides that a person convicted of filing a false tax return shall be fined and imprisoned for "not more than three years." Defendant argued the quoted language indicates a single term of imprisonment within the determinate sentencing law. However, the term" not more than" prescribes an indeterminate term and defendant was properly sentenced to indeterminate sentences for the tax fraud offenses.id: 15092
Great bodily injury enhancement was not improper where one term was determinate and the other indeterminate.Appellant argued the court erred in imposing the three year enhancement for great bodily injury because the assault with intent to commit murder (Penal Code section 217) was the subordinate offense (within the meaning of section 1170.1) and if the subordinate offense is not listed in section 667.5(c), which this offense is not, then the enhancement may not be imposed. However, when one term is determinate and the other is indeterminate, neither is principal or subordinate. The fact that the enhancement was determinate did not render it subordinate within the meaning of section 1170.1.id: 13826
Increasing the determinate sentence seven years after appellant's initial sentencing did not violate his due process or speedy trial rights.Appellant argued that increasing his determinate sentence seven years after he was first sentenced and after he had finished the determinate term first imposed violated his rights to due process and a speedy trial. However, failure to spot the sentencing error earlier did not violate due process. Moreover, the speedy trial argument was unpersuasive since appellant was promptly sentenced; it was the correction of the sentence that was unfortunately protracted.id: 13827
Mid-term was not improper for defendant who set into motion a 16.5 pound cocaine sale.Defendant deliberately set in motion events which led to two sales of cocaine which totaled 16.5 pounds of cocaine. The court acknowledged the fact that defendant's role was minimal and that he had a minimal prior history of criminal involvement. The court used as an aggravating factor the significant quantity of cocaine. Sentencing defendant to the mid-term of four years in state prison was not an abuse of discretion.id: 13828
Trial court is not required to consider the effect of a mandatory sentence enhancement when selecting the base term of imprisonment.In exercising discretion whether to impose a middle or upper term sentence there is no requirement that the court <U>must</U> consider the effect of a mandatory five-year sentence enhancement.id: 13831
Trial court properly considered defendant's parole status in deciding to impose the upper term on the firearm-use enhancement.California Rules of Court, rule 428(b) limits the authority of a trial court in imposing additional punishment for <U>certain</U> enhancements by providing that the upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement. The Court of Appeal held the trial court erred in basing its imposition of the upper term for a firearm-use enhancement upon the circumstance that defendant was on parole when he committed the offenses at issue. However, rule 428(b) is invalid to the extent it conflicts with controlling statutory authority. Because a sentencing court has long been permitted to consider the circumstance that the defendant was on parole when he or she committed the offense in imposing the upper term a sentencing court may rely upon that same consideration - defendant's parole status - in determining whether the upper term should be imposed for an enhancement.id: 13832
Court did not err in imposing the upper term on the remaining conviction where the conviction for which the principal term had been selected was reversed and later dismissed.Defendant was convicted of assault and commercial burglary and on appeal the assault conviction was reversed. He argued that he was penalized for taking a successful appeal because upon resentencing on the commercial burglary, the trial court imposed the upper term of imprisonment. However, when the conviction for which the principal term had been selected and imposed, was reversed and subsequently dismissed, the trial court was within its discretion in imposing an upper term for the remaining conviction.id: 13824
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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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