Untitled Document

Sentencing Manual, Sections I Through V

September 2013

Always check to determine if the case has been granted review, depublished, or modified. Additionally, review the Three-Strikes Outline for all Three-Strikes related issues.

I. Apprendi, Blakely, Booker, Black and Cunningham

  1. Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], the United States Supreme Court held that where the defendant waived trial and pled guilty, the trial court’s upward departure from the sentencing range under Washington guidelines, based on facts not admitted by defendant or found by jury violated constitutional right to trial by jury within the meaning of Apprendi.

  2. People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial and as a result does not violate Apprendi, Blakely or United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738]. The court also found that Blakely is not violated by the jury not deciding if a defendant should receive a consecutive sentence.

  3. United States v. Booker (2005) 543 U.S.621, the Court addressed whether the Federal Sentencing Guidelines operated to violate the Sixth Amendment right to a jury trial.

  4. People v. Ferris NOT PUBLISHED ON THIS ISSUE: (2005) 130 Cal.App.4th 773, the Fifth Appellate District held that Apprendi, which extending the defendant’s right of trial by jury to all facts other than prior convictions, which might increase sentence above what would otherwise be the statutory maximum, does not alter the burden of proof on the question of insanity.  California requirement that a defendant prove insanity by a preponderance of the evidence, is constitutional.

  5. People v. Buser (2005) 132 Cal.App.4th 1188, the Third Appellate District held that the court did not violate the defendant’s Sixth Amendment right to a jury trial by imposing an upper term sentence based on facts not proven to a jury beyond a reasonable doubt.  The upper term, not middle term, is considered the maximum sentence (People v. Black (2005) 35 Cal.4th 1238, 1257), in limiting judicial authority to impose sentence in excess of what would otherwise be the maximum based on facts not determined by jury.

  6. People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court held, in this 5-2 opinion, that in sentencing proceedings where the defendant had two prior convictions for robbery under Nevada law, and the elements of the Nevada crime differed from the elements of the California crime, in that the Nevada convictions did not qualify on their face as convictions for purposes of sentence enhancement under California’s three strikes law, the trial court did not violate the defendant’s federal constitutional right to jury trial in examining the record of the prior robbery convictions to determine whether each of the offenses constituted a conviction of a serious felony.  The dissent contends, that Apprendi v. New Jersey (2000) 530 U.S. 466, requires that the existence of any fact increasing a defendant’s sentence beyond the statutory minimum be determined by the jury base on proof beyond a reasonable doubt.  Apprendi indicates that it decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219] which found an exception to this rule to prove “facts of a prior conviction,” is arguably incorrect.  (Apprendi, supra, 530 U.S. at p. 489.)  Given this statement, the dissent indicates that Apprendi should be construed narrowly, rather than in the expansive manner in which it continues to interpret the law.  Given the fact that the defendant never admitted the conduct underlying his Nevada convictions that are now being used to increase his sentence, he should have been given a right to a jury trial on the issue.  I predict the United States Supreme Court will grant certiorari either in this case or a related matter.

  7. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate District held that the court did not abuse its discretion in imposing upper term sentence (see People v. Black (2005) 35 Cal.4th 1238), for second degree robbery on basis that numerous aggravating factors, such as prior convictions and indication of serious danger to society, outweighed single mitigating factor of defendant’s good performance on parole.

  8. Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], the United States Supreme Court held that the California Supreme Court was once again wrong in a major sentencing determination when it decided, in a 6-3 opinion, Blakely does apply to the current California sentencing scheme, and as a result, that determinate by placing sentence-elevating factfinding within the province of the judge rather than the jury, violates the defendant’s right to trial by jury under the Sixth and Fourteenth Amendments.

  9. United States v. Blanton (9th Cir. 2007) 476 F.3d 767, the Ninth Circuit Court of Appeal held that the Fifth Amendment’s Double Jeopardy Clause bars government from appealing a district court’s allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement.  Double jeopardy will attach if applicability of sentencing enhancement that would have increased the defendant’s maximum sentence is not proven and the defendant is acquitted.  There is a good discussion of United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 and its applicability following Blakely v. Washington (2004) 542 U.S. 296 wherein there is an argument that a nonjury juvenile adjudication could not be a predicate offense for the purpose of a federal sentencing enhancement because the underlying conduct was never proven to a jury.  This case calls into question the viability of Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615, 118 S.Ct. 2246] [that double jeopardy does not apply to enhancements].  Here the court says that the test is to look behind the labels to the constitutional commands governing the treatment of sentencing enhancements that increase the statutory maximum to which the defendant is otherwise exposed. To do otherwise is to undermine the 5th and 6th Amendments.

  10. People v. Hernandez PETITION FOR REVIEW GRANTED, THEN DISMISSED, REMANDED TO THIRD DISTRICT:  formerly at: (2007) 147 Cal.App.4th 1266, the Third Appellate District held that even under Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], a defendant is not entitled to have a jury determine the facts upon which the trial court relies to impose consecutive as opposed to concurrent sentences.  (See People v. Reeder (1984) 152 Cal.App.3d 900, 923.)

  11. People v. Banks REVIEW GRANTED, TRANSFERRED TO FOURTH APPELLATE DISTRICT DIVISION 3: FORMERLY AT: (2007) 149 Cal.App.4th 969, the Fourth Appellate District, Division 3 held that the court’s finding that a combination of appellant’s prior criminal history and “recidivist-related factors” could not stand to support the upper term as the trier of fact did not find them true beyond a reasonable doubt.  As a result, the matter was remanded to the trial court for resentencing to determine if the upper term is warranted based on proof of appellant’s prior criminal record alone.

  12. People v. Waymire REVIEW GRANTED; DISMISSED: FORMERLY AT: (2007) 149 Cal.App.4th 1448, the Third Appellate District held that the court did not err in sentencing appellant to the upper term on methamphetamine manufacturing charge, after appellant violated probation.  The Court of Appeal found no Blakely/Cunningham error in considering the fact that defendant’s prior convictions were numerous and of increasing seriousness rather than simply the fact of a prior conviction.  It was also not err in to rely on the unsatisfactory performance on probation where the defendant admitted he violated probation by failing to contact his probation officer, failed to participate in a substance abuse counseling program, and possessed methamphetamine.  The court’s reliance on the additional facts not admitted by the defendant nor proven to a jury beyond a reasonable doubt that the defendant was on probation at time of the offense was harmless beyond a reasonable doubt where the absence of those facts would not have made a material difference in court’s determination.  The court also found that there was no waiver or forfeiture, even though there was no objection in the trial court as the objection would have been futile.

  13. People v. Shadden : REVIEW GRANTED, THEN DISMISSED:  FORMERLY AT: (2007) 150 Cal.App.4th 137, the Fifth Appellate District held that the imposition of upper term based on facts found by judge rather than jury, following Cunningham, was not error where the court had exercised its discretion underRomero, to strike a strike, and not impose a 25 to life term under the Three Strikes Law, which would have been a longer term of imprisonment than the imposition of the upper term.

  14. People v. Diaz REVIEW GRANTED; TRANSFERRED TO SECOND APPELLATE DISTRICT, DIVISION 7: FORMERLY AT: (2007) 150 Cal.App.4th 254, the Second Appellate District, Division 7 held that appellate did not waive or forfeit his Cunningham/Blakely challenge to an upper term sentence due to his lack of objection where such objection would have been futile based on Black.  The jury’s implicit determination that the victim was incapable of resisting defendant’s sexual advances due to intoxication or influence of a controlled substance could not be used both to find the defendant guilty of specific sexual offenses having use of intoxication, anesthesia or a controlled substance as an element and to find that defendant was “particularly vulnerable” for sentencing purposes.  Judicial determination that crimes involved “great violence” and involved “great danger to society” because victim was forced into sex did not support upper term because such factors were inherent in the crimes themselves.  Imposition of the upper term based on aggravating factors that might not have been found by reasonable jury was prejudicial.  Imposition of consecutive sentences based on judge’s finding that violent sex crimes were committed on separate occasions did not violate right to trial by jury where judge had the discretion to impose such sentences regardless of any judicial factfinding.  Where the upper term sentence was reversed as violating right to trial by jury, and the court lacked discretion to impose upper term on remand because no aggravating factors were admitted by the defendant nor found true by the jury beyond a reasonable doubt, nor did the defendant have any prior convictions, trial court was required on remand to impose middle-term sentence.

  15. People v. Reyes REVIEW GRANTED; DISMISSED: FORMERLY AT:  FORMERLY AT: (2007) 150 Cal.App.4th 735, the Second Appellate District, Division 7, held that the court properly imposed the upper term within the meaning of Blakely and Cunningham for first degree burglary, forcible rape and forcible oral copulation counts where the defendant had at least three prior convictions, admitted multiple prior convictions on the stand, and admitted at trial he had been in prison and had just been released at the time the present crimes were committed.  The dissent by Justice Johnson would have sent the matter back to the trial court since multiple reasons were given for the upper term, and there was no showing, just as there were none in People v. Banks (2007) 149 Cal.App.4th 969, that the court necessarily would have imposed the upper term had it based its decision on the defendant’s prior convictions alone.

  16. People v. Sayers REVIEW GRANTED; TRANSFERRED BACK TO SECOND DISTRICT, DIVISION 4: FORMERLY AT: (2007) 150 Cal.App.4th 1040, the Second Appellate District, Division 4 held that there was no Cunningham error where, based in part on the defendant having engaged in a pattern of violent conduct which indicates a serious danger to society, a determination by the court based on defendant’s past and current convictions and admission that he had served a prior prison term.  The imposition of upper term based on judicial fact-finding, where erroneous, is not structural error and is subject to harmless-error analysis.  (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466, 126 S.Ct. 2546].)  The dissent by Justice Epstein indicated that the trial court considered factors that were not proper, and the Court of Appeal should not second-guess (see People v. Benevides (1998) 64 Cal.App.4th 728, 735 [appellate court’s should not substitute their decision for that of the trial court]), what the court would have done if it knew it could only utilize recidivist factors.

  17. People v. Govan REVIEW GRANTED: TRANSFERRED BACK TO FOURTH DISTRICT, DIVISION I. FORMERLY AT: (2007) 150 Cal.App.4th 1015, the Fourth Appellate District, Division 1 held that the imposition of upper term was error, based on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], and Apprendi v. New Jersey (2000) 530 U.S. 466, where the defendant’s prior convictions for crimes of increasing seriousness, his having committed the present offenses while on probation, and his unsatisfactory performance on probation, none of which was admitted to by defendant or found by a jury, violated his right to trial by jury.  Merely because there was evidence from which a reasonable jury could necessarily have found aggravating factors does not render the judge’s imposition of upper term based on that evidence harmless.  (See Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed. 2d 466, 126 S.Ct. 2546, 2549-2553].)  Additionally, the court held that the issue was not waived for failure to object.

  18. People v. Lozano REVIEW GRANTED; DISMISSED. FORMERLY AT:  (2007) 150 Cal.App.4th 1304, the Second Appellate District, Division 4 held that the court erred in basing an upper term sentence in part on nonrecidivist facts not submitted to a jury or admitted by the defendant is tested under the harmless error rule of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].  It is not a structural error requiring automatic reversal.  (See Washington v. Recuenco (2006) 548 U.S.212; [165 L.Ed.2d 166, 126 S.Ct. 2546, 2549-2553].)  The court erred in imposing upper term sentence for vandalism based not only on defendant’s prior convictions but also on the circumstances of the crime itself.  However, the error was harmless where the uncontested evidence showed defendant’s vandalism consisted of multiple acts of damage to the victim’s car, which individually were sufficient for a finding of malice to justify high term.

  19. People v. Fluker REVIEW GRANTED; TRANSFERRED TO SECOND DISTRICT, DIVISION 7. FORMERLY AT: (2007) 151 Cal.App.4th 515, the Second Appellate District, Division 7 held that the court’s imposition of upper term sentence based solely on its factual finding that defendant’s conduct in the courtroom constituted an escape attempt or disruption, an aggravating circumstance that did not involve a prior conviction and was not admitted by defendant or to jury, violated defendant’s constitutional right to a jury trial pursuant to Cunningham.  The court also found that it was not harmless beyond a reasonable doubt within the meaning of Chapman.

  20. People v. Abercrombie REHEARING GRANTED: FORMERLY AT:  (2007) 151 Cal.App.4th 585, the Third Appellate District held that the court did not violate defendant’s constitutional right to jury trial within the meaning of Cunningham by basing his upper term sentence solely on the fact that he was on parole when he committed the crime, as parole is a recidivism factor that necessarily arises from a prior conviction and relates solely to the defendant’s status as a repeat offender.  The court justified its decision based primarily on Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350].

  21. People v. English (2007) 151 Cal.App.4th 1216, the Fifth Appellate District held that, within the meaning of Cunningham, that the imposition of the upper term without the jury findings as to aggravating factors did not violate the federal constitutional right to trial by jury where the judge found as an aggravating factor that defendant had “numerous” prior convictions beyond those for which enhancements were imposed, but the court also indicated that the cruelty of the current offense played a role in this decision.  (See People v. Gonzalez (2006) 138 Cal.4th 932, 961, fn 6.)  The court also hung its hat on the fact that Cunningham error is guided by the harmless beyond a reasonable doubt standard, which the court determined is the case here.

  22. People v. Morton REVIEW GRANTED; DISMISSED: FORMERLY AT: (2007) 152 Cal.App.4th 323, the Fourth Appellate District, Division 3 held that the court’s imposition of the upper term did not violate Cunningham, where two of the three aggravating factors it found, first that the defendant had numerous convictions as an adult beyond those that were alleged, and, two that he was on parole at the time of the instant offense, fell within “prior conviction” exception.  Any error in treating the defendant’s “unsatisfactory” prior performance on parole as a third aggravating factor was harmless in light of evidence that he committed several other crimes while on either probation or parole, and several additional parole and probation violations.

  23. Rita v. United States (2007) 551 U.S. 338 [168 L.Ed.2d 203, 127 S.Ct. 2456], the United States Supreme Court held that the court of appeals may apply a presumption of reasonableness to a sentence within the sentencing guidelines.  While the district judge must consider nonfrivolous arguments for downward departure, guidelines sentence will be deemed reasonable where the court has listened to each of defendant’s arguments and considered the supporting evidence before finding those circumstances insufficient to warrant a sentence lower than the guidelines range.  A sentence of 33 months in prison for making two false statements to a grand jury was not unreasonably harsh where it was at the bottom of the guidelines range, and the defendant’s asserted grounds for departure, which included, poor health, fear of retaliation based on prior employment in law enforcement, and distinguished past military service, were not so compelling as to require a lesser sentence than would typically be imposed for those crimes.

  24. People v. Yim (2007) 152 Cal.App.4th 366, the Second Appellate District, Division 6 held that the imposition of the upper-term did not violate Cunningham or the Sixth Amendment right to jury trial where it was based on the findings that the defendant was on parole at time of crime and performed poorly on parole.  The Court of Appeal found that the prior conviction exception is not limited to the bare fact of a defendant’s prior conviction, but, extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction that renders the defendant subject to an enhanced sentence.  (People v. McGee (2006) 38 Cal.4th 682, 704.)

  25. People v. Tillotson REVIEW GRANTED; TRANSFERRED TO FOURTH APPELLATE DISTRICT, DIVISION 3. FORMERLY AT: (2007) 152 Cal.App.4th 799, the Fourth Appellate District, Division 3 held that convictions for multiple drug offenses in a single trial is subject to only one recidivist enhancement under Health and Safety Code section 11370.2, subd. (c), since the court classifies this as a status enhancement within the meaning of People v. Tassell (1984) 36 Cal.3d 77, 90 and People v. Williams (2004) 34 Cal.4th 397, 402.)

  26. People v. Velasquez (2007) 152 Cal.App.4th 1503, the Second Appellate District, Division 7 held that the defendant forfeited his claim that the court’s imposition of upper-term was improper because it did not state its reasons for selecting that term as he did not object in a timely manner.  The court properly relied on fact that the defendant had served a prior prison term and that his prior adult convictions were numerous as aggravating factors in imposing an upper term for assault, along with a related firearm enhancement.  Once again, there is a dissenting opinion on each of the above issues by Justice Johnson.

  27. People v. Cardenas REHEARING GRANTED; REVIEW DENIED: NOW AT: (2007) 155 Cal.App.4th 14, the Second Appellate District, Division 7 held that imposition of the upper prison term based on the court’s finding that crime involved planning and sophistication violated Cunningham.

  28. People v. Black (2007) 41 Cal.4th 799, the California Supreme Court held that the defendant did not forfeit his right to challenge on appeal the imposition of the upper term sentence by failing in trial court to request a jury trial on aggravating circumstances.  Imposition of an upper term sentence does not violate a defendant’s Sixth Amendment right to a jury trial under Cunningham, where at least one aggravating factor has been established by the jury’s verdict, the defendant’s admissions, or the defendant’s prior convictions.  Neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.

  29. People v. Sandoval (2007) 41 Cal.4th 825, the California Supreme Court held that the court violated the defendant’s Sixth Amendment right under Cunningham, where it imposed upper term sentence for voluntary manslaughter citing aggravating circumstances that were based solely on the facts underlying the crime.  Such facts included the fact that the killing involved a great amount of violence; the defendant engaged in callous behavior and lacked any concern regarding the consequences of her actions; the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; defendant was the “motivating force” behind the crimes; and defendant’s actions reflected planning and premeditation.  The upper term was not based on the defendant’s own admission, the jury’s verdict, or any prior convictions.  The error was not harmless beyond a reasonable doubt, warranting reversal of upper term sentence, especially where the jury rejected the prosecution’s premeditation theory and found defendant guilty only of voluntary manslaughter indicates it would not have found the aggravating circumstances pertaining to her state of mind.  However, on remand, the court has discretion to select either the upper, middle, and lower terms without requiring a finding of aggravating and mitigating circumstances.  The trial court will be required to specify reasons for its sentencing decision, but, will not be required to cite “facts” that support its decision or to weigh aggravating or mitigating circumstances.  (See newly enacted Pen. Code § 1170, subd. (c).)  The court’s ruling will be subject to appeal for abuse of discretion.  The court rejected the argument that the new scheme violates the prohibition of ex post facto laws.  Unbelievably, the Supreme Court holds that since there is little impact on the defendant’s sentence (see Miller v. Florida (1987) 482 U.S. 423 reversed the sentence based on an ex post facto violation), there is no ex post facto violation and this case is distinguishable from Miller.

  30. In re Christian G. (2007) 153 Cal.App.4th 708, the Second Appellate District, Division 6 held that in calculating the theoretical maximum term of confinement for a juvenile for the purpose of committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (formerly the California Youth Authority), the juvenile court properly considers the upper terms for both the underlying felony and any applicable enhancement, even if such terms could not be imposed on an adult offender in the absence of special jury findings.  As a result, Cunningham and its progeny were not violated.

  31. People v. Retanan (2007) 154 Cal.App.4th 1219, the Third Appellate District held that a court’s finding that Penal Code section 667.61, subd. (g), within the meaning of the “One-Strike” law, which provides that a single enhanced sentence shall be imposed for offenses committed against a single victim on a single occasion, does not apply to a particular case does not violate Blakely, nor do the consecutive sentences violate Cunningham or Black II.

  32. People v. Jefferson (2007) 154 Cal.App.4th 1381, the Third Appellate District held that the court indicated that Cunningham and Blakely still recognize Almendarez-Torres, and therefore, People v. Kelii (1999) 21 Cal.4th 452, which holds that the court makes the determination whether the defendant’s prior is a strike, has not yet been abrogated.  Where the court agreed that the elderly victim enhancement within the meaning of section 667.9 should not be imposed because the defendant did not physically harm the victim, did not brandish or use the knife he had in his possession, and was motivated largely by his need for drugs, and because second-strike sentence would constitute sufficient punishment, enhancement should have been stricken rather than stayed (People v. Luckett (1996) 48 Cal.4th 1214), and there is no reason to remand to the trial court for further proceedings.

  33. People v. Munoz (2007) 155 Cal.App.4th 160, the Third Appellate District held that where the defendant pleaded guilty to attempted murder and admitted possessing firearm during commission of offense in exchange for dismissal of numerous other charges, and the court, in sentencing the defendant to the upper terms on the offenses, relied on defendant’s voluntary Harvey waiver.  (See People v. Harvey (1979) 25 Cal.3d 754.)  The defendant stipulated to the truth of facts relevant to upper terms and allegations underlying the dismissed charges; as a result, the sentence did not violate defendant’s Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt under Cunningham.

  34. People v. Ayala REVIEW GRANTED AND DISMISSED: FORMERLY AT: (2007) 155 Cal.App.4th 604, the Sixth Appellate District held the imposition of upper term sentence under Cunningham, which was based on a judicial findings that the crimes involved “a high degree of callousness” and were carried out in a manner evidencing “planning and sophistication,” violated his Sixth Amendment right to trial by jury, and the error was not harmless beyond a reasonable doubt where findings were based solely on brief recitations in a probation report.

  35. People v. Brock REVIEW GRANTED AND DISMISSED: FORMERLY AT: (2007) 155 Cal.App.4th 903, the Second Appellate District, Division 8 held that the imposition of the upper prison term based on aggravating factors including prior prison terms, poor performance on parole, and abusing trust by failing to return to prison, justified the high term under Cunningham and Black II.

  36. People v. Grayson REVIEW GRANTED AND DISMISSED: FORMERLY AT: (2007) 155 Cal.App.4th 1059, the First Appellate District, Division 3 held that the court did not err by imposing the upper term sentence based in part on the court’s finding that the defendant had prior juvenile adjudications.  Those adjudications are equivalent to a criminal conviction, and once the court determined that the defendant has a prior conviction, it may consider other aggravating factors not found by the jury or admitted by the defendant.  The court rejected the position taken in Tighe and Nguyen which would have prohibited the use of the juvenile prior as a strike or to justify the upper term.  Statements in the presentence probation report constituted sufficient evidence of  the defendant’s juvenile adjudications where the defendant knew that such statements would be considered for sentencing purposes and did not challenge them in trial court.

  37. People v. Presley (2007) 156 Cal.App.4th 1027, the Third Appellate District held that Cunningham, Apprendi andBlakely are not violated do to the fact that public notification requirements of the sex offender registration laws are not punishment (see People v. Castellanos (1999) 21 Cal.4th 254) for purposes of the Sixth Amendment, so the underlying facts need not be found by a jury.

  38. People v. Ibarra (2007) 156 Cal.App.4th 1174, the Fifth District held that the imposition of upper term does not under Sixth Amendment or Cunningham, Black II andSandoval, require a jury findings where the term was based on prior felony and misdemeanor convictions.

  39. People v. Landaverde (2007) 157 Cal.App.4th 28, the Second Appellate District, Division 4 held that the court did not deprive the defendant of his right to a jury trial pursuant to Cunningham, by imposing the upper term based on the defendant’s admission that he had sexually molested his daughter over a continuous period.  Even if the defendant was entitled to a jury trial on the sentencing, any error was harmless since there is no reasonable doubt that jury would have found at least one of the aggravating factors on which the trial judge relied to be applicable, and making him eligible under People v. Sandoval (2007) 41 Cal.4th 825, and Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed. 2d 466, 126 S.Ct. 2546, 2549-2553].

  40. People v. Flores (2007) 157 Cal.App.4th 216, the Fourth Appellate District, Division 3 held that the imposition of consecutive terms does not violate the defendant’s Sixth Amendment rights because there is no requirement that the court find aggravating circumstances. (See People v. Black (2007) 41 Cal.4th 799, 821.)

  41. People v. Tillotson (2007) 157 Cal.App.4th 517, the Fourth Appellate District, Division 3 held that given the fact that the court mentioned the defendant’s numerous prior convictions as one of the reasons for imposing the upper term, it satisfied People v. Black (II) (2007) 41 Cal.4th 799, 815-816.)

  42. In re Alex U. (2007) 158 Cal.App.4th 259, the Fifth Appellate District held that Cunningham has no application to the juvenile court’s determination of the theoretical maximum term of confinement.  (See In re Christian G. (2007) 153 Cal.App.4th 708.) Any discrepancy between the theoretical maximum term as calculated by juvenile court and maximum term that could be imposed on an adult offender in absence of jury findings in aggravation does not violate equal protection guarantees since adult and juvenile offenders are not similarly situated for this purpose.  (See People v. Romo (1975) 14 Cal.3d 189, 196; see also In re Robert D. (1979) 95 Cal.App.3d 767, 774-775.)

  43. People v. Curry (2008) 158 Cal.App.4th 766, the Third Appellate District held that sentencing to upper term without permitting jury to decide aggravating factors beyond a reasonable doubt, pursuant to Cunningham, was error, but harmless since a jury would have been able to find at least one aggravating circumstance using a beyond a reasonable doubt standard.

  44. People v. Morton (2008) 159 Cal.App.4th 239, the Fourth Appellate District, Division 3 held that the imposition of the upper prison term did not violate his right under Black II and Sandoval where based on three aggravating factors, (1) the existence of numerous prior convictions not otherwise used for enhancement, (2) the defendant’s being on parole at the time of the offense, fall within the “prior conviction” exception to the jury right, and (3) that defendant’s prior performance on parole was unsatisfactory, was beyond reasonable dispute.

  45. People v. Garcia (2008) 159 Cal.App.4th 163, the Second Appellate District, Division 6 held that the imposition of the upper prison term did not violate the defendant’s Sixth Amendment right to jury trial where his record of numerous, increasingly serious convictions and parole violations was an aggravating circumstance that warranted imposition of the upper term.

  46. People v. Superior Court (Brooks) (2008) 159 Cal.App.4th 1, the Second Appellate District, Division 8 held that the prosecution may not amend the information to allege aggravating circumstances listed in California Rules of Court, Rule 4.421 to secure a jury trial of those alleged aggravating circumstances.  Such a procedure, while a constitutionally permissible means of determining aggravating circumstances for sentencing purposes, is unauthorized by any statute or court rule.  This court disagrees with the opposite conclusion drawn in Barragan v. Superior Court (2007) 148 Cal.App.4th 1478.

  47. People v. Stuart (2008) 159 Cal.App.4th 312, the Third Appellate District held that it was not error under Black II and Sandoval for the for the court to impose the upper-term sentence for rape based on a finding of aggravated factors did not violate his constitutional rights under Cunningham where one legally sufficient aggravating circumstance was based on his record of prior convictions.  The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise “could” have been imposed, not whether it raised the sentence above that which “would” have been imposed.  (People v. Black (2007) 41 Cal.4th 799, 815.)  Here the defendant had six prior misdemeanor convictions which qualified for the upper term under rule 4.421(b)(2), which are numerous and of increasing seriousness.

  48. People v. French (2008) 43 Cal.4th 36, the California Supreme Court held that where the defendant challenged the court’s imposition of an upper term sentence after he entered a plea of no contest pursuant to a plea agreement for a maximum term of 18 years, he did not need to obtain a certificate of probable cause under section 1237.5 since a certificate is not required when a defendant only asserts errors in the proceedings conducted for the purpose of determining the degree of the crime and the penalty to be imposed, and defendant did not challenge the validity of the plea agreement. Where the defendant waived his right to a jury trial on the substantive charges against him, entered a plea of no contest, and stipulated to the factual basis for his plea, he neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance, thus imposition of a upper term sentence violated defendant’s right to a jury trial.  Because an express waiver of defendant’s constitutional right was required, the defendant did not forfeit his claim challenging his aggravated sentence by failing to raise it in trial court, and the constitutional error was not harmless beyond a reasonable doubt.  When asked by the trial court whether counsel believed there was a sufficient factual basis for the no contest pleas, counsel stated, ‘I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that’s what they’ll testify to.’  Indeed, counsel was careful to state that he agreed that witnesses would testify to the facts as recited by the prosecutor; he did not stipulate that the prosecutor’s statements  were correct.  Under the circumstances of this case, defense counsel’s stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham.

  49. People v. Garcia (2008) 161 Cal.App.4th 475, the Second Appellate District, Division 1 held that in ruling on whether to grant discretionary relief from lifetime sex offender registration requirement, the court erred in its conclusion that it should not consider circumstances subsequent to defendant’s conviction.  Cunningham is not violated by the jury not deciding whether appellant should have to register.

  50. People v. Medrano (2008) 161 Cal.App.4th 1514, the Third Appellate District held that where the court suspended an upper-term sentence after the defendant pled no-contest, but subsequently reinstated it after he was convicted for another crime, the defendant’s objection to the imposition of the upper term within 60 days of reinstatement, rather than within 60 days of original sentencing, was timely.  (People v. Barnett (1995) 35 Cal.App.4th 1, 2-3 [any other determination of the issue would be premature].)  The defendant’s objection that the court’s imposition of original sentence, which relied on facts which the court had originally relied upon, including the fact that the defendant had been on probation at time original crime was committed, violated his Sixth Amendment right to have facts found by jury was without merit where probation was evidence of other convictions, and defendant did not contest that he was on probation.

  51. People v. Towne (2008) 44 Cal.4th 63, the California Supreme Court held that the imposition of the upper term sentence based on an aggravating circumstance that the defendant served a prior prison term or was on probation or parole at the time the crime was committed does not, under Sixth Amendment, nor Cunningham and Black II, require a jury trial on the facts underlying the aggravating circumstance.  With regard to imposition of upper term, the aggravating circumstance that the defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.  Where the court has found an aggravating circumstance that permits imposition of an upper term sentence, it may exercise its discretion in favor of such a sentence based on a factual finding that is supported by substantial evidence, but is inconsistent with jury’s verdict on other counts.  The court specifically disapproved of People v. Takencareof (1981) 119 Cal.App.3d 492, 498.  As a result, the trial court did not commit statutory or constitutional error in finding, for sentencing purposes, that the victim was put in fear, even though the only offense of which he was convicted was “joyriding” and the defendant was acquitted of other charges involving force or fear as an element.

  52. People v. Miller (2008) 164 Cal.App.4th 653, the Second Appellate District, Division 4 held that the trial court can sentence appellant under the new sentencing law, even though the offense occurred before it was announced since there is no ex post facto violation within the meaning of People v. Sandoval (2007) 41 Cal.4th 825, 857.

  53. People v. Wilson (2008) 164 Cal.App.4th 988, the Third Appellate District held that the trial court did not err where it used the defendant’s multiple prior convictions and continued drug abuse as justifications for imposing an upper-term sentence within the meaning of newly amended section 1170, subdivision (b) (amended through SB 40), and the sentence did not infringe upon defendant’s constitutional right to jury trial pursuant to People v. Black (2007) 41 Cal.4th 799, 816 (Black II)

    .

     

  54. People v. Esquibel (2008) 166 Cal.App.4th 539, the Second Appellate District, Division 8 held that the imposition of upper prison term for assault with a firearm, based on aggravating factors found by judge rather than jury, violated defendant’s right to a jury trial, but the violation was harmless beyond a reasonable doubt where any reasonable jury would have found the same aggravating factors, that victims, unarmed persons fired upon without provocation while visiting a public park with their small children, were especially vulnerable, and that the crime involved a high degree of callousness and a high degree of violence.  (People v. Sandoval (2007) 41 Cal.4th 825, 839.)

  55. People v. Ybarra (2008) 166 Cal.App.4th 1069, the Fifth Appellate District held that where the trial court imposed the aggravated prison terms based upon multiple factors, only one of which was found by a jury, the defendant’s right to a trial by jury on the sentencing factors was violated, within the meaning of Cunningham, requiring resentencing at which trial court would have discretion to impose any lawful sentence.  The trial court’s imposition of consecutive, rather than concurrent, terms based on judicial fact finding did not violate Cunningham.  Trial court erred in imposing parole revocation fines on defendants whose sentences made them ineligible for parole.  (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.)

  56. People v. Baughman (2008) 166 Cal.App.4th 1316, the Third Appellate District held that the imposition of the upper prison term on basis of aggravating factors in violation of Cunningham, was error, was harmless beyond a reasonable doubt where one of the aggravating factors was abuse of trust, and no reasonable juror would have found otherwise given that the defendant was the victim’s father, that he repeatedly abused her, that the crimes were generally committed when other members of the household were away or asleep, and that defendant, when caught on one occasion, denied what he had done.

  57. People v. Rabanales (2008) 168 Cal.App.4th 494, the Fourth Appellate District, Division 2 held that the defendant was not entitled to a trial by jury or a finding of guilt beyond a reasonable doubt on the question of whether he violated the conditions of his release under People v. Vargas (1990) 223 Cal.App.3d 1107, know as a Vargas waiver, whereby trial court reserved the right to impose sentence in excess (e.g., 7 years) of that otherwise bargained for (e.g., one year county jail and 4 years suspended), if he violated specified conditions prior to sentencing.  At a preliminary hearing the court found sufficient evidence that the defendant committed spousal battery based on the testimony of the victim, the mother of the defendant’s children, by hitting her a couple of times, causing a black eye and injured ribs, together with corroborating testimony by witnesses who saw her injuries, was sufficient to support trial court’s finding, of a violation of the Vargas waiver, and the condition that he commit no new crime, under a preponderance of the evidence standard, thereby permitting the increased sentence, and such a finding did not violate Apprendi, Blakely or Cunningham.

  58. Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711] the United States Supreme Court held that the Sixth Amendment within the meaning ofApprendi and Blakely, does not prohibit states from assigning finding of facts necessary to impose consecutive rather than concurrent sentences for multiple offenses to judges instead of juries.

  59. In re Gomez (2009) 45 Cal.4th 650, the California Supreme Court held that Cunningham did not apply on collateral review of a judgment that became final before Cunningham was decided, but after Blakely, because Cunningham did not extend or modify the rule established in Blakely, but merely applied it to the California sentencing scheme.  Cunningham applies retroactively to any case to which the judgment was not final when the decision in Blakely was issued.

  60. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third Appellate District held that the trial court erred in imposing upper terms on the defendant’s convictions for making a criminal threat and inflicting corporal injury on a spouse, pursuant to Cunningham, as there were no specific facts to justify the upper term for those acts.

  61. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth Appellate District, Division 2 held that imposition of the upper term based on aggravating factors listed in probation report did not violate Cunningham, where the sentence was based on statutory amendment to section 1170, subdivision (b), permitting trial court to exercise its discretion in selecting upper, middle, or lower term.  Application of amendment to Determinate Sentencing law to crime committed before amendment took effect did not violate constitutional prohibitions against ex post facto laws, nor did it prejudice defendant, who could have received upper term because one of the aggravating factors was that defendant was on probation when he committed the new crime.

  62. People v. Nichols (2009) 176 Cal.App.4th 428, the Third Appellate District held that the court was not required under Apprendi, Cunningham or People v. Jefferson (2007) 154 Cal.App.4th 1381 to submit the issue of the prior prison term allegations (§ 667.5, subd. (b)) or the serious felony prior convictions (§ 667, subd. (a)(1)), to the jury.

  63. People v. Moberly (2009) 176 Cal.App.4th 687, the Fifth Appellate District held that the imposition of the upper prison term for voluntary manslaughter plus the upper-term for a firearm enhancement based on same aggravating factor, that defendant was a prior convicted felon in possession of a firearm and ammunition, is not an unlawful dual use of facts; therefore the trial court can use the same factor to give the aggravated term on the substantive count, and on the enhancement as provisions on the use of the facts are limited under People v. Scott (1994) 9 Cal.4th 331, 350.  Neither section 1170 nor the California Rules of Court attempts to provide an inclusive list of aggravating circumstances.  Thus the trial court is free to base an upper term sentence upon any aggravating circumstance the trial court deems significant and is applicable to the matter.  (See People v. Sandoval (2007) 41 Cal.4th 825.)

  64. People v. Pham (2009) 180 Cal.App.4th 919, the Fourth Appellate District, Division 3 held that the upper term sentence, based on judge's finding that defendant took advantage of special position of trust, did not violate Sixth Amendment right to trial by jury where imposed under amended section 1170, subdivision (b), which eliminated midterm presumption and permits trial court to impose upper term without additional fact-finding.  (See People v. Sandoval (2007) 41 Cal.4th 825, 843-858.)  Therefore, Cunningham and Apprendi do not apply.

  65. In re Watson (2010) 181 Cal.App.4th 956, the Fourth Appellate District, Division 1 held that Apprendi v. New Jersey (2000) 530 U.S. 466 established a new rule of constitutional procedure which was the premise for the demise of California’s determinate sentencing law in Cunningham v. California (2007) 549 U.S. 270, (at least until the enactment of SB 40.)  Given the fact that the petitioner’s conviction was still on direct appeal when Apprendi was decided, the upper terms imposed by the trial court, based on sentencing factors not found true by a jury beyond a reasonable doubt, were required to be reduced to no more than the middle term.  The court also held that petitioner's claim was timely as he was sentenced under an unconstitutional statute.  (In re Robbins (1998) 18 Cal.4th 770, 780 [pertaining to the timeliness of the petition and successive claims].

  66. People v. Torres (2011) 198 Cal.App.4th 1131, the Sixth Appellate District held that the trial court erred in imposing upper prison term for witness dissuasion under section 136.1, subdivision (c)(1), since such term is permissible only where the dissuasion was by force or threat, and jury made no such finding.  (See Blakely v. Washington (2004) 542 U.S. 296, 303; see also Cunningham v. California (2007) 549 U.S. 270, 281.)  The jury was never asked to find a violation under subdivision (c)(1), only under (b)(1), which is a wobbler and not a straight felony with a high term of four years.  That is an alternative penalty scheme, and due process was violated.  (See People v. Palmer (2001) 86 Cal.App.4th 440, 444 [it violates fundamental notion of due process do deem a defendant convicted of an offense on which the jury was never instructed.])

  67. People v. Kramis (2012) 209 Cal.App.4th 346, the Second Appellate District, Division 5 held that Southern Union Co. v. United States (2012)     U.S.    , [132 S. Ct. 2344], which held that where a statute required that amount of fine be determined by number of days on which a defendant was in violation, the defendant had a Sixth Amendment right to have the number of days determined by the jury pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, 490, does not give that defendant a right to have jury set amount of restitution fine under former section 1202.4, subdivision (b)(1), as the amount of the fine is entirely within judicial discretion as long as it is within the proscribed statutory range, here between $200, and $10,000. The minimum amount of the fine was increased from  $200 to $240, January 1, 2012.

  68. People v. Wilson (2013)     Cal.App.4th    , reported on September 9, 2013, in 2013 Los Angeles Daily Journal 12039, the Sixth Appellate District held that the trial court erred in doubling appellant's sentence for a DUI based on a prior manslaughter conviction since the trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466, and People v. McGee (2006) 38 Cal.4th 682; see also Shepard v. United States (2005) 544 U.S. 13, where the court did not find that appellant personally inflicted great bodily injury.  In fact appellant disputed the relevant facts of his conduct, and his plea to the offense did not admit that element. The trial court did not find that appellant personally inflicted great bodily injury.  In fact, appellant disputed the relevant facts of his conduct, and his plea to the offense did not admit that element.  As a result, since the jury could have found that a reasonable doubt that the defendant personally inflicted great bodily injury, the error was not harmless. (See Wilson v. Knowles (9th Cir. 2011) 638 F.3d 1213, 1216.)

II. Consecutive v. Concurrent Sentencing

  1. People v. Hill (2004) 119 Cal.App.4th 1192, the First Appellate District, Division 3, held that section 1170.1, subd. (a), which permits the court to impose consecutive prison terms for each subordinate term, and “shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses,” gives the court the discretion to impose a gun-use enhancement equal to one-third the upper term for subordinate offense to which the enhancement applies.  (See also People v. Sandoval (1994) 30 Cal.App.4th 1288, 1302.)

  2. People v. Griffin (2005) 128 Cal.App.4th 1112, the First Appellate District, Division 3 held that section 12022.1 applies regardless of whether the offense in which bail was posted is alleged to have occurred in California or in another state.  The sentence imposed for the crime committed while on bail must be imposed to run consecutive to the sentence imposed for the crime in which bail was posted.

  3. People v. Rodriguez (2005) 129 Cal.App.4th 1401, the Fourth Appellate District, Division 2, held that the trial court erred when it believed that it did not have the discretion to impose concurrent terms for multiple convictions under the one strike law within the meaning of section 667.61.

  4. People v. Lowe (2007) 40 Cal.4th 937, the California Supreme Court held that where the defendant claims a speedy trial violation, he must establish that the delay harmed his ability to defend against the charged crime.  Where the prosecution filed criminal charges against defendant, some five months earlier, but did not notify him thereof until he had completed a jail term in a neighboring county for a probation violation, and there was no evidence that delay impaired defendant’s ability to defend against the charges, he could not establish prejudicial delay simply by showing that he lost the chance to serve any sentence stemming from the pending charges concurrently with the jail term he was already serving on the probation violation.  The state right to a speedy trial arises upon the filing of the complaint, whereas the federal right comes into play when the information or indictment is filed.  Here appellant had complaint of a violation under the state constitution.  An uncommonly long delay triggers a presumption of prejudice under the federal constitution, but not under the state constitution.  (People v. Martinez (2000) 22 Cal.4th 750, 756-766.)  As a result of the foregoing, the decision in People v. Martinez (1995) 37 Cal.App.4th 1589, is overruled.

  5. People v. Mosley (2007) 155 Cal.App.4th 313, the Second District, Division 5 held that where the defendant was convicted of multiple, in-custody offenses, including several counts of making terrorist threats and one count of possession of a weapon, and court designated one of the threats counts as the principal count, it was error to impose full-term consecutive sentence on the weapon count.  Even though the defendant must be sentenced consecutively pursuant to section 4502, there is no term, unlike in section 667.6 that permits full term consecutive sentencing, and the sentence must be 1/3 the middle term on the consecutive sentence.

  6. People v. Tillotson (2007) 157 Cal.App.4th 517, the Fourth Appellate District, Division 3 held that the matter must be remanded for the court to state its reasons for imposing enhancements under section 12022.1 consecutive.  When prison sentences are imposed on multiple secondary offenses and one primary offense, section 12022.1 subd. (e) requires only the sentence on one secondary count to be imposed consecutively to the sentence on the primary count, and the court has the discretion to impose the sentences on the remaining secondary counts to run concurrently or consecutively.

  7. People v. Miller (2008) 164 Cal.App.4th 653, the Second Appellate District, Division 4 held that to impose a consecutive sentence on the hit-and-run conviction based on the conclusion that the crime was of “great violence,” the trial court was required to specify the act or acts of violence to which it referred.  The trial court can sentence appellant under the new sentencing law, within the meaning of People v. Sandoval (2007) 41 Cal.4th 825, 857.

  8. People v. Gamble (2008) 164 Cal.App.4th 891, the Sixth Appellate District held that a consecutive prison term is not mandatory for a felony escape in violation of section 4532, subdivision (a)(1).  A consecutive sentence is mandated under subdivisions (a)(2), (b)(1) and (b)(2) pursuant to the language of those sections, but that same language is not written into subdivision (a)(1), and subdivision (c) only applies to a sentence imposed under “that” subdivision, it is only discretionary to impose a consecutive sentence under subdivision (a)(1), and therefore, it must be remanded to the superior court for the court to exercise its discretion.  (See People v. Downey (2000) 82 Cal.App.4th 899, 912.)  If the record had shown that the court would have not exercised its discretion, or would have been an idle act, then a remand would not have been necessary.  (See People v. Sanders (1997) 52 Cal.App.4th 175, 178.)

  9. People v. Quintanilla (2009) 170 Cal.App.4th 406, the Second Appellate District, Division 5 held that in and of itself, the age of the rape victim was an insufficient factor in aggravation to justify a sentencing enhancement where victim was 13.  (See Calif. Rules of Court, rule 4.425(b)(3).)  However, the victim’s age was relevant to the victim’s vulnerability and abuse of trust; therefore, the trial court did not abuse its discretion in finding the defendant’s exploitation of the friendly relationship he maintained with victim’s family, an aggravating factor.  (See Calif. Rules of Court, rule 4.421(a)(3).)  In finding that the defendant’s acceptance of responsibility came only after trial, the court of appeal found that he was not being punished for going to trial.  (People v. Collins (2001) 26 Cal.4th 297, 305-306.)  Additionally, because of the defendant’s escalating sexual violence and predation and his abuse of his relationship with victim as a friendly neighbor, the trial court reasonably viewed defendant as a serious sex offender and did not err in imposing a full consecutive sentence under section 667.6, subdivision (c) for defendant’s rape and forcible lewd act convictions.

  10. People v. Goodliffe (2009) 177 Cal.App.4th 723, the Third Appellate District, held that  the “absurd consequences” exception to the plain meaning rule cannot be applied whenever it is claimed to run counter to a generalized legislative intent, general statement of electorate's intent “to strengthen and improve the laws that punish and control sexual offenders” will not trump plain meaning of section 667.6, subdivision (c), which provides that a “full, separate and consecutive term” may be imposed for each violation of an enumerated violent sexual offense involving the “same victim on the same occasion.”  The trial court erred in imposing full consecutive terms under that subdivision for offenses committed against separate victims.  The court chose not to rewrite subdivision (c), to reinstate language that Jessica's law repealed.  (In re Water of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348; People v. Skinner (1985) 39 Cal.3d 765, 775 [the Court of Appeal does not rewrite unambiguous language].)

  11. People v. Williams REVIEW GRANTED (S195187); FORMERLY AT: (2011) 197 Cal.App.4th 339, the Second Appellate District, Division 7 held that the trial court did not abuse its discretion in sentencing defendant to consecutive terms, where it had the option of sentencing concurrently on certain offenses, based on his numerous prior convictions, which had been increasing in severity, and on the fact he had been on parole when he committed the instant offense.  A factor in aggravation used to set the upper term cannot be used as a basis for imposing a consecutive term (Cal. Rules of Court., Rule, 4.425(b)(1).)

  12. People v. Dyser (2012) 202 Cal.App.4th 1015, the Third Appellate District held that there was no valid reason for counsel's failure to object to the trial court's failure to state reasons for consecutive sentences (People v. Tillotson (2007) 157 Cal.App.4th 517, 545 [trial court must express reasons for consecutive sentences]) for first degree robbery and assault with intent to commit rape, and counsel forfeited the issue (People v. Scott (1994) 9 Cal.4th 331, 353), but there were at least five aggravating circumstances pursuant to rule 4.421, and it is not probable that the result would have differed.

  13. People v. Maharaj (2012) 204 Cal.App.4th 641, the Third Appellate District held that where the defendant was convicted of 3 counts within section 269 (aggravated sexual assault on a minor), and section 288, subdivision (b), and each of the offenses in within section 667.6, subdivision (e), and therefore requiring mandatory consecutive sentences for each of the 4 forcible sex offenses.  (See § 667.6, subds. (c) and (d) requiring full term, consecutive sentences.)  Section 667.6, subdivision (c) mandates that violent sex offenses listed in section 667.6, subdivision (e), when committed against the same victim on separate occasions, be subject to full-term consecutive sentences just as when such offenses are committed against multiple victims.

III. Cruel and Unusual Punishment

  1. United States v. Barajas-Avalos (9th Cir. 2004) 377 F.3d 1040, the Ninth Circuit Court of Appeal held that a thirty-year sentence for conspiracy to manufacture methamphetamine and attempting to manufacture methamphetamine did not constitute cruel and unusual punishment, even though defendant had never been convicted of a prior felony or crime of violence, given the seriousness of the crime, the quantity of drugs involved, the possession of the firearm during the commission of the crime, and his participation in an obstruction of justice.

  2. Centeno v. Superior Court  (2004) 117 Cal.App.4th 30, the Second Appellate District, Division 5, held that a defendant who contends that he is not subject to death penalty due to mental retardation (see section 1376), is entitled to a pretrial hearing before the court on that issue.  (See Atkins v. Virginia (2002) 536 U.S. 304, 319-321 [147 L.Ed.2d 435, 120 S.Ct. 2348].)  Where a defendant facing the death penalty claims mental retardation at the time of the act, the prosecution expert may conduct a pretrial examination of defendant, limited to tests reasonably related to a determination of mental retardation.  The defendant is not entitled to unqualified judicial immunity for statements made in the course of the examination, but, possesses a statutory immunity at the guilt phase of the trial.

  3. Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, the Ninth Circuit Court of Appeal held that a Three-strikes sentence of 25 years to life for theft of a VCR valued at less than $200 violated the Eighth Amendment prohibition against cruel and unusual punishment as applied to appellant’s current and prior offenses.  Appellant had previously been convicted of two second-degree robberies, and neither involved weapons; minimal force to escape from each of the petty thefts was used by appellant.  Appellant had pled guilty to the priors, which the trial court conceded were actually petty thefts for which defendant served 6 months in county jail and successfully completed the 3 year probationary term without incident.  The current offense is a wobbler do to the prior theft offenses; and he had never been convicted of any other felony.  The Ninth Circuit Court of Appeal found the California’s appellate court’s upholding of the 25 to life sentence, in which appellant must serve a minimum of 25 years (see In re Cervera (2001) 24 Cal.4th 1073), was an unreasonable application of controlling federal law, and therefore relief was possible under AEDPA in this “rare case” as a violation of the Eighth Amendment.  (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-77 [155 L.Ed.2d 144, 123 S.Ct. 1166].)

  4. People v. Kellogg (2004) 119 Cal.App.4th 593, the Fourth Appellate District, Division 1, held that it was not cruel and unusual punishment, under the Eighth Amendment, or Robinson v. California (1962) 370 U.S. 660, 666-667 [8 L.Ed.2d 758, 82 S.Ct. 1417], or Powell v. Texas (1968) 392 U.S. 514 [20 L.Ed.2d 1254, 88 S.Ct. 2145] to conviction the defendant a chronic alcoholic, who was homeless, under section 647, subd. (f).  The statute applies only if publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way, it does not punish the mere condition of being a homeless, chronic alcoholic, but rather punishes conduct posing a public safety risk.

  5. Rios v. Garcia (Ninth Cir. 2004) 390 F.3d 1082, the Ninth Circuit Court of Appeal held that the habeas petitioner’s sentence of 25 years to life in prison for petty theft of two watches worth less than $80, based on his Three Strikes sentence, was not grossly disproportionate to his crime in light of his criminal history.  (See Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108, 123 S.Ct. 1179].)  This Court of Appeal distinguished Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, which held a 25 to life sentence for a theft of a VCR was grossly disproportionate to the crime, as the defendant surrendered without the use of violence, and the priors were two non-violent robberies.  Here, petitioner struggled with the arresting security guard, and tried to avoid apprehension.

  6. Smith v. Texas (2004) 543 U.S. 37 [160 U.S. 303, 125 S.Ct. 4000], the United States Supreme Court held that under Texas death penalty scheme, where the jury was instructed to determine whether the killing was deliberate and whether the defendant posed a continuing danger to others, and where the jury was not specifically instructed nor did the verdict form indicate that it could, even if it found for the prosecution on those two special issues, return a verdict for a sentence less than death if it found defendant’s low IQ and placement in special-education classes to be sufficiently mitigating.  As a result, the defendant was deprived of his right to consideration of mitigating evidence in violation of the Eighth Amendment, and the error was not cured by a general instruction to consider all mitigating evidence.  (See Penry v. Johnson (2001) 532 U.S. 782 [150 L.Ed.2d 1254, 88 S.Ct. 1910] (Penry II).)

  7. People v. Poslof (2005) 126 Cal.App.4th 92, the Fourth Appellate District, Division 2, held that the sentence of 27 years to life in prison for failure to register did not constitute cruel and unusual punishment in view of defendant’s criminal history as a recidivist and child sex offender, nor did the lower court err in denying appellant’s Romero motion pursuant to People v. Williams (1998) 17 Cal.4th 148, 161.

  8. In re Hawthorne (2005) 35 Cal.4th 40, the California Supreme Court held that postconviction claims that a death sentence is cruel and unusual punishment as applied to a mentally retarded person should be litigated in substantial conformance with section 1376 which prescribes preconviction standards and procedures for determining whether a defendant against whom the prosecution seeks the death penalty is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 U.S. 304.

  9. Roper v. Simmons (2005) 543 U.S. 351 [161 L.Ed.2d 1, 125 S.Ct. 1183], the United States Supreme Court held that the Eighth and Fourteenth Amendments preclude imposition of death penalty on a person who was less than 18 years of age when crime was committed.

  10. Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, the Ninth Circuit held that the lower court erred in denying a habeas petition based on a violation of the prohibition against cruel and unusual punishment, in this Three Strikes case, where the record did not reflect whether petitioner’s most recent strike offense was a crime against persons or involved violence, and a remand for further development of the record was required.  It is clear that the Eighth Amendment will only apply to Three Strike cases in “exceedingly rare” cases.  (See Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 763 [appellant’s conduct did not give rise to grave harm to society].)

  11. People v. Carmony (2005) 127 Cal.App.4th 1066, the Third Appellate District held that a violation of section 290, for the failure to “update” sex offender registration within five working days of offender’s birthday, where defendant had registered his correct address one month before his birthday and the parole agent knew that the defendant continued to reside at that address, was an offense so minor that there would be a violation of the prohibition against cruel and/or unusual punishment provisions of the United States and California constitutions, if a three-strike sentence was imposed.  The majority of the court, in this 2-1 opinion, does an extensive analysis of the intrajurisdictional and interjurisdictional comparisons for both the state and federal standard, and the majority found that the sentence is clearly disproportionate by any measure.  (Cf. People v. Cluff (2001) 87 Cal.App.4th 991, 1004.)

  12. Taylor v. Lewis (9th Cir. 2006) 460 F.3d 1093, the Ninth Circuit Court of Appeal held that where the defendant’s history of recidivism marked was by violence over a 30 year period, the lower court did not err, within the meaning of Ewing v. California (2003) 538 U.S. 11, and Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382, 100 S.Ct. 1133], that a three-strikes sentence of 25 years to life for possessing 0.036 grams of cocaine did not violate the Eighth Amendment prohibition of cruel and unusual punishment.

  13. People v. Demirdjian (2006) 144 Cal.App.4th 10, the Second Appellate District, Division 4 held that a defendant’s failure to object in the superior court to imposition of statutorily prescribed sentence, on grounds that it constitutes cruel and/or unusual punishment, does not preclude the Court of Appeal from entertaining the argument. Imposition of two consecutive 25-year-to-life sentences on a 15-year-old defendant did not violate the Eighth Amendment or similar California provision where terms were imposed for two horrendous murders in which teenage victims were bludgeoned to death.  Proposition 21, permits the minor to be tried as an adult, and the imposition of a 25-year-to-life sentence, where defendant is between the ages of 14 and 16 and is charged with special circumstances murder.

  14. Kennedy v. Louisiana (2008) 554 U.S. 407, [171 L.Ed.2d 525, 128 S.Ct. 2641], the United States Supreme Court held that the Eighth Amendment bars state from imposing the death penalty for the rape of a child because the death penalty is disproportionate to a crime where the crime did not result, or was not intended to result, in the victim’s death based upon societal standards; capital punishment, where imposed for crimes against the individual, as opposed to crimes against the state such as treason and espionage, must be reserved for the “worst of crimes.” 

  15. People v. Cross (2008) 45 Cal.4th 58, the California Supreme Court held that a surgical abortion, performed on a 13 year old girl, can support an enhancement under section 12022.7 for the defendant’s personal infliction of great bodily injury in committing the offense that led to the victim’s pregnancy, and that in this instance the pregnancy itself can constitute such great bodily injury.  (See People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1131-1132; see also People v. Sargent (1978) 86 Cal.App.3d 150.)  Where the 13-year-old victim became pregnant by her stepfather and carried the fetus for 22 weeks, the jury could reasonably have found that the victim suffered a significant or substantial physical injury. Where the trial court instructed the jury that “a pregnancy or an abortion may constitute great bodily injury” and did not instruct them on meaning of personal infliction the trial court did not err by failing to instruct on meaning of personal infliction, but the court erred in instructing the jury that an abortion may constitute great bodily injury, even though such statement was legally correct, because the defendant did not personally perform the abortion.  Such instruction would not have misled the jury into concluding that the defendant inflicted great bodily harm by virtue of victim’s abortion by facilitating the victim in obtaining the abortion.

  16. Gonzalez v. Duncan (9th Cir., 2008) 551 F.3d 875, the Ninth Circuit Court of Appeal held that where the defendant was convicted of failing to update his annual sex offender registration (see § 290, subd. (a)(1)(D), and, as a result of his priors, was sentenced to 28 years to life under the Three Strikes law, his sentence was grossly disproportionate to his offense, given the fact that he offense was a passive, harmless, and a technical violation where jury found the he had not moved, law enforcement was aware of his address, and he had registered at same address three previous times.  The defendant’s failure to register could not have interfered with law enforcement’s ability to conduct surveillance and so the purpose of the registration requirement was not undermined by his technical offense; the offense resulted in no social harm and little or no moral culpability attached; and absent some connection between his prior offenses, the regulatory violation, and a propensity to recidivate, California’s interest in deterring and incapacitating recidivist offenders did not justify severity of sentence imposed.

  17. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third Appellate District held that although the defendant had no criminal record and was a successful attorney, the facts of the case demonstrated that he was also capable of gross inhumanity for which he was neither remorseful nor contrite, and so his life sentence was not so disproportionate to defendant’s crime that it was cruel and unusual punishment, under either the California or federal constitutions.

  18. People v. Em (2009) 171 Cal.App.4th 964, the Fourth Appellate District, Division 3, the majority of the court, over a strong dissent, held that the defendant’s two consecutive 25-year-to-life sentences, for the felony murder, when the defendant was not the shooter, was not cruel or unusual punishment even though defendant was 15 years and nine months old at time of offense.  The dissent argued that the consecutive sentences violated both the state and federal constitutions, wherein concurrent sentences would not.

  19. In re Nunez (2009) 173 Cal.App.4th 709, the Fourth Appellate District, Division 3 held that life imprisonment without possibility of parole for kidnaping for ransom constituted cruel or unusual punishment pursuant to the state constitution, and the Eighth Amendment as applied to this minor defendant who was 14 years of age when crime was committed.  The minor inflicted no injury on victim, and who was suffering from post-traumatic stress disorder at the time of the crime, where the minor did not have a significant criminal record, and the sentence was so disproportionate to those actually imposed on offenders of similar age who committed similar crimes in other jurisdictions as to be “freakishly rare.”

  20. People v. Haller (2009) 174 Cal.App.4th 1080, the Third Appellate District held that  appellant’s sentence of 78 years to life in prison on multiple counts of criminal threats, stalking, and assault with a deadly weapon, in this Three-Strike sentence, did not constitute cruel and/or unusual punishment under state and federal constitutions where the defendant caused serious emotional distress to multiple victims, was on probation for similar conduct at the time of the crimes, and had prior convictions for four felonies and a large number of misdemeanors, and the sentence was not disproportionate to those imposed on violent recidivists in other jurisdictions.  Here the defendant will not be eligible for parole until he is 119 years old.

  21. People v. Nichols (2009) 176 Cal.App.4th 428, the Third Appellate District held that a sex offender's indeterminate life sentence for failing to register within five days of changing his address (§ 290), did not constitute cruel and/or unusual punishment since the defendant thwarted of the purpose of registration, coupled with the seriousness of his prior convictions (three prior strikes), and his sustained criminality, all demonstrated his sentence was not grossly disproportionate to his offense.  The court concluded that this situation was more closely in line with People v. Meeks (2004) 123 Cal.App.4th 695 [life sentence for failure to register not unconsitutional], than the defendant's history and age of his priors in People v. Carmony (Carmony II) (2005) 127 Cal.App.4th 1066 [violation for failure to register was found unconstitutional].

  22. People v. Russell (2010) 187 Cal.App.4th 981, the Fourth Appellate District, Division 1 held that the Court of Appeal held that the defendant's sentence of 26 years to life for first-degree felony murder was not cruel and unusual punishment where he failed to show that his sentence shocked the conscience and violated fundamental notions of human dignity.  (See People v. Carmony (2005) 127 Cal.App.4th 1066, 1076.)

  23. People v. Mendez (2010) 188 Cal.App.4th 47, the Second Appellant District, Division 2, held that a prison sentence of 84 years to life constituted cruel or unusual punishment where the defendant was 16 years of age at time of the crimes, and did not commit a homicide or inflict bodily injury.  (Graham v. Florida (2010) 560 U.S.    , [130 S.Ct. 2011; 176 L.Ed.3d 825].)

  24. People v. Ramirez (REVIEW GRANTED (S192558); FORMERLY AT: (2011) 193 Cal.App.4th 613, the Second Appellate District, Division 4 held, over a dissent by Justice Manella, and consistent with its prior opinion in People v. Caballero (2011) 191 Cal.App.4th 1248, that Graham v. Florida (2010) 560 U.S.      [176 L.Ed.3d 825; 130 S.Ct. 2011], which holds that the Eighth Amendment prohibits the imposition of a life-without-parole sentence on a juvenile offender who did not commit a homicide, is expressly limited to those cases where a juvenile offender actually receives a sentence of life imprisonment without the possibility of parole for a nonhomicide offense and does not bar a court from sentencing a juvenile offender to a determinate sentence that exceeds his or her life expectancy.

  25. People v. Meneses (2011) 193 Cal.App.4th 1084, the Fourth Appellate District, Division 3 held that substantial evidence supported the great bodily injury finding under sections 667.61, subdivisions (b), (e), and 12022.8 for the forceable rape on the 12-year old victim who became pregnant as a result of defendant's sexual contact with her.  (See People v. Cross (2008) 45 Cal.4th 58, 66.)  Additionally, the Court of Appeal held that the defendant's sentence of 15 years to life based on the finding of great bodily injury under section 667.61, subdivisions (b) and (e), was not cruel and unusual even though the pregnancy may not be the usual type of bodily injury for which the enhancement is applied.

  26. People v. Nunez REVIEW GRANTED (S194643): FORMERLY AT: (2011) 195 Cal.App.4th 414, the Fourth Appellate District, Division 3 held that a sentence for a term of years exceeding the life expectancy of a juvenile but without the LWOP label does not pass constitutional muster based on a theoretical but illusory parole date.  This Court of Appeal agrees with the decision in People v. Mendez (2010) 188 Cal.App.4th 47, and disagrees with People v. Ramirez (REVIEW GRANTED (S192558): FORMERLY AT: (2011) 193 Cal.App.4th 613.

  27. People v. J.I.A. TRANSFERRED BACK TO COURT OF APPEAL IN LIGHT OF CABALLERO; FORMERLY AT: (2011) 196  Cal.App.4th 393, the Fourth Appellate District, Division 3, held that imposition of aggregate prison term of 50 years to life, plus two consecutive life terms, on defendant who was 14 years old when crimes--including multiple counts of kidnapping, robbery, dissuading a witness by force, and violent sexual offenses--were committed and 18 years old at time of sentencing, constituted cruel and unusual punishment under the U.S. Constitution because it was a de facto life-without-parole sentence, which may not be imposed on a minor.  (Graham v. Florida (2010) 560 U.S. [176 L.Ed.3d 825; 130 S.Ct. 2011].)  Sentence violated state and federal constitutional proportionality tests given defendant's age, the traumatic nature of his childhood, and his limited intelligence.  The appropriate remedy for excessive sentence was to impose concurrent, rather than consecutive, terms for those offenses as to which concurrent terms were permitted by statute, making defendant eligible for parole after 42.5 years.

  28. People v. Blackwell (2011) 202 Cal.App.4th 144, the First Appellate District, Division 5 held that the LWOP sentence does not amount to cruel and unusual punishment under Graham v. Florida (2010) 560 U.S.    , [130 S.Ct. 2011], as applied to a defendant 16 years of age or older and convicted of first-degree murder under the felony-murder rule, where defendant personally killed victim or intended to kill or was a major participant in the underlying felony and acted with reckless indifference to human life; the sentence was not disproportionate to his individual culpability; and he had an extensive juvenile record.  Imposition of LWOP was not an abuse of discretion where the trial court was aware of its discretion to impose a lesser sentence but the circumstances of the case reasonably supported a decision not to do so.  (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1088; see also People v. Jordan (1986) 42 Cal.3d 308, 316 [exercise of discretion is not disturbed absent a showing that the court acted in an arbitrary, capricious, or patently absurd way, resulting in a miscarriage of injustice].)

  29. Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784, the Ninth Circuit Court of Appeal held that the defendant's sentence of 26-years-to-life imprisonment did not violate the Eighth Amendment ban on cruel and unusual punishment, (see Solem v. Helm (1983) 463 U.S. 277, 288 [77 L.Ed.2d 637, 103 S.Ct. 3001]), where the defendant was convicted of both failing to annually update his sex offender registration five days after his birthday and failing to register within five days of a change of address, and had three prior felony convictions for rape, forced copulation, and robbery.  The court concluded that this situation was more closely in line with People v. Meeks (2004) 123 Cal.App.4th 695 [life sentence for failure to register not unconstitutional], than the defendant's history and age of  his priors in People v. Carmony (Carmony II) (2005) 127 Cal.App.4th 1066 [failure to register was found unconstitutional].

  30. People v. Murray (2012) 203 Cal.App.4th 277, the Second Appellate District, Division 8 held that the Eighth Amendment does not categorically preclude a LWOP sentence for a minor committed of murder.  (Graham v. Florida (2010) 560 U.S.    , [130 S.Ct. 2011]; see also People v. Blackwell (2011) 202 Cal.App.4th 144.)  LWOP was not a disproportionate penalty for a 17-year-old defendant with a previously clean record, commendable prison behavior, and otherwise praiseworthy character traits.  The defendant followed his victims into a secluded area backed by two armed accomplices and gunned down two helpless victims.

  31. Miller v. Alabama (2012) 560 U.S.    , [183 L.Ed.2d 407, 132 S.Ct. 2455], the United States Supreme Court held that for a juvenile offender, who commits a homicide, a sentence of life imprisonment without possibility of parole constitutes cruel and unusual punishment.

  32. People v. Caballero (2012) 55 Cal.4th 262, the California Supreme Court held that a sentence of 110 years to life imposed on a juvenile convicted of nonhomicide offenses, constitutes cruel and unusual punishment under the Eighth Amendment.  That lengthy sentence is the function equivalent as a life without parole sentence.  Therefore, pursuant to Graham v. Florida (2010) 560 U.S.     [130 S. Ct. 2011, 2030, the sentence must be overturned since the Eighth Amendment prohibits sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole.  Subsequently, in Miller v. Alabama (2012) 560 U.S.  [132 S.Ct. 2455], the High court held that for a juvenile offender, who commits a homicide, a sentence of life imprisonment without possibility of parole constitutes cruel and unusual punishment, even though there is not the same flat ban on such sentences as there is in Graham.

  33. In re Coley (2012) 55 Cal.4th 524, the California Supreme Court held that the trial court did not abuse its discretion when it sentenced appellant to a term of 25 years to life, as a third strike offender for intentionally failing to update his sex offender registration within five working days of his birthday, and as a result, did not constitute cruel and unusual punishment.  The court characterized the offense not simply as a minor or technical oversight by a defendant who had made a good faith effort to comply with the sex offender registration law, but indicated that the defendant had never registered as a sex offender at his current address, and had knowingly and intentionally refused to comply with his obligations under the sex offender registration law.

  34. People v. Gutierrez REVIEW GRANTED: FORMERLY AT: (2012) 209 Cal.App.4th 646, the Second Appellate District, Division 6 held that a sentence of life imprisonment without possibility of parole was not cruel or unusual where defendant committed an extremely brutal murder, repeatedly stabbing victim in the course of a violent sexual assault, expressed no remorse, and told the police three days after the murder that victim sexually assaulted him.  The court found that the sentence was not grossly disproportionate to the crime. (See Solem v. Helm (1983) 463 U.S. 277, 288, 290-292; [77 L.Ed.2d 637, 647-648.) Additionally, the court distinguished Miller v. Alabama (2012) 560 U.S.     [132 S.Ct. 2455], wherein the United States Supreme Court held that for a juvenile offender, who commits a homicide, a sentence of life imprisonment without possibility of parole constitutes cruel and unusual punishment.  This court held, that unlike the sentence in Miller, this one was not mandatory, as the statutory scheme of section 190.5, subdivision (b), gave the court the option to impose LWOP or not.  The Court of Appeal also distinguished People v. Caballero (2012) 55 Cal.4th 262, wherein the California Supreme Court held that a sentence of 110 years to life imposed on a juvenile convicted of nonhomicide offenses, constitutes cruel and unusual punishment under the Eighth Amendment.  That lengthy sentence is the function equivalent as a life without parole sentence.

  35. People v. Moffett REVIEW GRANTED; FORMERLY AT: (2012) 209 Cal.App.4th 1465, the First Appellate District, Division 5 held that section 190.5, subdivision (b), which permits the trial court to sentence a defendant who is between 16 and 18 years old at the time of the offense, to life imprisonment without possibility of parole (LWOP), or to 25 years to life in prison for first-degree murder of a police officer during the escape, does not automatically violate the Eighth Amendment.  However, here, the statute was applied in an unconstitutional manner where trial court treated the LWOP sentence as the presumptive sentence.  (See Miller v. Alabama (2012) 560 U.S.     [132 S.Ct. 2455, 2469] [a presumption in favor of LWOP, is contrary to the spirit, if not the letter of Miller, which cautions that LWOP sentences should be ''uncommon" given the great difficulty of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.})  The trial court expressly declined to consider the fact that the defendant was not the shooter; considered the impact of the crime on the victims of the underlying robbery, but failed to consider such relevant factors as the defendant’s maturity, prospects for reform, or mental state with respect to the homicide itself.  Furthermore when the trial court considered the defendant’s previous criminal history, it mistakenly characterized a juvenile adjudication for assault as a felony when it was designated a misdemeanor. The juvenile defendant’s lack of intent to kill, as he was not the shooter, did not necessarily preclude an LWOP sentence where he was at least a major participant in the underlying robbery and acted with reckless indifference to human life.

  36. People v. Argeta (2012) 210 Cal.App.4th 1478, the Second Appellate District, Division 4 held that a minimum aggregate sentence of 100 years for a defendant (Hernandez) who was 15-years old when he aided and abetted an 18-year old adult codefendant (Argeta) in one count of murder and five counts of attempted murder, was the functional equivalent to an LWOP sentence and, therefore subject to reversal pursuant to Graham v. Florida (2010) 560 U.S. , [130 S.Ct. 2011] Miller v. Alabama (2012) 560 U.S.     [132 S.Ct. 2455], and People v. Caballero (2012) 55 Cal.4th 262, each which found a violation of the Eighth Amendment to impose a life-without-parole sentence upon a juvenile. The same considerations did not apply to the codefendant sentenced for a crime he committed only five months after he turned 18.

  37. People v. Siackasorn (2012) 211 Cal.App.4th 909, the Third Appellate District held that in light of Miller v. Alabama  (2012) 560 U.S.     [132 S.Ct. 2455], the section 190.5, subdivision (b), allows the trial court with equal discretion to impose a sentence of LWOP or a sentence of 25 years to life, with neither being the preferred one on the defendant who was 16 at the time of the offense, as the sentence is not the mandatory sentence prohibited in MIller.  Based on Miller, LWOP is not the presumptive sentencing choice on remand for resentencing.

  38. People v. Thomas (2012) 211 Cal.App.4th 987, the Fourth Appellate District, Division 1 held that the co-defendant Satterwhite's sentence of 196-L, was the functional equivalent to LWOP, (see People v. Caballero (2012) 55 Cal.4th 262, 268, fn.4), and it was remanded for the trial court to exercise its discretion under Miller v. Alabama (2012) 560 U.S.     [132 S.Ct. 2455].

  39. People v. Perez (2013) 214 Cal.App.4th 49, the Fourth Appellate District, Division 3 held that it was not cruel and unusual punishment to impose a sentence of 30 years to life on a 16-year-old convicted of sex crimes involving force and threat of force against younger minors.  The court found that it was not the functional equivalent of a life-without-parole sentence. (See Graham v. Florida (2010) 560 U.S.    , [130 S.Ct. 2011]; People v. Caballero (2012) 55 Cal.4th 262, 268, fn.4); Miller v. Alabama (2012) 560 U.S.     [132 S.Ct. 2455].  Further, that the application of the one-strike law to minors does not, on the face of the statute, constitute cruel and unusual punishment. The Court of Appeal found that the argument overstates the scope of Graham, Miller and Caballero.  Finally, the Court of Appeal found that the sentence was not grossly disproportionate to culpability where crime was "horrendous," and where the defendant was remorseless in talking with police and had previously committed three serious offenses.

IV. CRC Commitment

  1. People v. Fielder (2004) 114 Cal.App.4th 1221, the Second Appellate District, Division 4, held, following a rehearing, that in order for prosecution to avoid application of  the 5-year “washout” provision of for a one-year prior prison term within the meaning of section 667.5, subd. (b), the prosecution must prove beyond a reasonable doubt that the defendant either committed a new offense resulting in a felony conviction or was in prison custody during that period.  The Court of Appeal also found that even though a CRC commitment is not a prior prison term, the conviction of the offense which sent appellant to CRC is a conviction that prevents the washout period from taking effect.  However, given the fact that the documents presented to the court did not establish when the 1993 conviction, which led to one of the CRC commitments, was “committed,” the evidence was insufficient to establish that there was not a 5 year period leading up to the 1997 conviction when appellant was state prison free and felony conviction free.  Therefore, the matter was remanded to the superior court to determine if the prior will be retried.

  2. People v. Chavez (2004) 116 Cal.App.4th 1, the Fourth Appellate District, Division 1 held that the court did not err in failing to consider appellant for CRC based on a driving under the influence offense, with priors, which made the current offense a felony.  Welfare and Institutions Code section 3051 that such a refer to CRC can be made if the defendant is addicted to or in imminent danger of being admitted to narcotics.  Narcotic drugs are defined in Health and Safety Code section 11019, and it does not include alcohol.

  3. People v. Mitchell (2004) 118 Cal.App.4th 1145, the Second Appellate District, Division 1, held that where a defendant is resentenced after being committed for treatment to California Rehabilitation Center, but being found ineligible for such commitment, do to a medical condition not treatable at CRC, was entitled to both pre-sentence good conduct credits afforded by section 4019 and post-sentence “worktime” credits afforded by section 2933, for the entire period between the original imposition of sentence and resentencing.  (See also People v. Nubla (1999) 74 Cal.App.4th 719.)

  4. People v. Jeffery (2006) 142 Cal.App.4th 192.  The Second Appellate District, Division 6 held that the court’s statement that it would not commit eligible defendant to California Rehabilitation Center for a “variety of reasons” did not comply with requirement of California Rules of Court, Rule 4.406(b)(9), that reasons be stated with specificity.  The trial court may not “parrot” the statutory language when refusing to initiate commitment proceedings.  (People v. McGinnis (2001) 87 Cal.App.4th 592, 595.)  Given the fact that the court did not put on the record the necessary reasons, remand is required even if record would support denial.

  5. People v. Murray (2007) 155 Cal.App.4th 149, the Fifth Appellate District held that where court suspended execution of sentence, and prison representative in other county notified probation officer that the defendant was incarcerated as a result of a subsequent conviction, the probation officer’s failure to timely report the commitment to the court in accordance with section 1203.2(a), divested the court of jurisdiction to direct execution of suspended sentence.  (See People v. Holt (1991) 226 Cal.App.3d 962, 967; see also Pompi v. Superior Court (1982) 139 Cal.App.3d 503, 507-508.)  The purpose of section 1203.2a is to provide a mechanism by which the probationary court can consider imposing a concurrent sentence, and to preclude inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant when the statutory time limits are not observed.  (In re Hoddinott (1996) 12 Cal.4th 992, 999.)

  6. People v. Sanders (2009) 170 Cal.App.4th 1236, the Third Appellate District held that the defendant may waive his right under Welfare and Institutions Code section 3053 to a return hearing if he is not admitted to CRC.  Where the defendant was fully informed on record that the trial court would not modify his sentence if he were excluded from CRC, even if the defendant were present at the return hearing, his request to modify the sentence previously imposed and stayed pending commitment would “fall on deaf ears,” and so he did not suffer any injury and therefore could not demonstrate prejudice resulting from the waiver.

V. Credits

A. No Apprendi on Crerdit Limitation Under 2933.1

  1. People v. Garcia (2004) 121 Cal.App.4th, the Second Appellate District, Division 7, held that the court, during a sentencing hearing, makes the determination whether “another person, other than an accomplice, was present in the residence” during commission of first degree burglary, which makes the offense a “violent felony” (see § 667.5, subd. (c)(21)) to limit conduct credits to 15% within the meaning of section 2933.1.  The Court of Appeal found that there is no federal or state constitutional right or state statutory right to a jury trial on this issue even after Apprendi as the limitation on credits does not add to the defendant’s maximum confinement time for the first degree burglary.

B. 2933.5 Credits (or Not)

  1. People v. Torres (2005) 127 Cal.App.4th 1391, the Second Appellate District, Division 1, held that section 2933.5, subd. (a)(2)(O) prohibits an award of conduct credits to a defendant convicted of any felony in which the defendant personally inflicted great bodily injury, pursuant to section 12022.53 or section 12022.7, and applies only to a defendant who has previously committed two or more times, on charges brought and tried separately (§ 667, subd. (a)(1), and who has served two or more prison terms (§ 667.5, subd. (b)).

C. 2933.1 Limitations for Violent and Non-Violent Offenses

  1. In re Reeves (2005) 35 Cal.4th 765, the California Supreme Court held that where defendant was sentenced in single proceeding to prison term for a violent felony and to a concurrent term for other crimes which arose from a separate act, and pled to in a separate proceeding, the section 2933.1, subd. (a) 15% limitation on custody credits for violent felons applies only to term for violent felony and not to aggregate term.  In other words, where the defendant completes the prison term for the violent offense, but remains incarcerated on the cases for which he is serving a concurrent sentence for the non-violent offense(s), he is entitled to the greater credit for the remaining period in which he is only serving time for the non-violent offense(s).

  2. People v. Nguyen (2005) 130 Cal.App.4th 350, the Fourth Appellate District, Division Three held that the defendant’s attempt to call her attorney during her arrest did not constitute an unambiguous invocation of her right to counsel under Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378, 101 S.Ct. 188], where the arresting officer made no attempt to interrogate.  The police obtained a Miranda waiver prior to interrogation, but were not required to assume that purpose of call to the attorney was to obtain advice regarding the potential interrogation.

  3. In re Phelon (2005) 132 Cal.App.4th 1214, the First Appellate District, Division 2, held that the court’s staying of a count within the meaning of section 654, that involved a violent felony, precludes the Department of Corrections from applying the 15% credit limitation to the time appellant is to serve in state prison (see In re Reeves (2005) 35 Cal.4th 765), and the trial court correctly declined to apply the limitation to presentence credits for the same reason. 

  4. In re Tate (2006) 135 Cal.App.4th 756, the Fifth Appellate District held that consistent with In re Reeves (2005) 35 Cal.4th 765, that a prisoner who commits an in prison, non-violent crime, is entitled to earn 50% credits on that term after he has served the out of prison term for the violent crime which was limited to 15% pursuant to section 2933.1.  Therefore, once the defendant has served the entire term for the violent crime, any remaining time for the non-violent offense is served at 50% and not 15 %.

  5. In re Pacheco (2007) 155 Cal.App.4th 1439, the Second Appellate District, Division 6 held that where the defendant was convicted of inflicting corporal injury on a cohabitant (§ 273.5), admitted the GBI enhancement under section 12022.7, subd. (a), and the court exercised its discretion to strike, in the interests of justice, the additional term for inflicting great bodily injury, but did not strike the GBI finding itself, the defendant was still subject to the 15% credits limitation for a violent felon pursuant to section 2933.1, rather than the 50 % allowed in the case of nonviolent felons which is what the section 273.5 offense is classified.  The court rejected appellant’s argument pursuant to People v. Reeves (2005) 35 Cal.4th 765, that section 2933.1, subd. (a) has no applicability if the defendant is not serving a term for a violent felony.  The court simply found that it is the conviction, not the sentence, which effects the percentage of credits that can be earned. 

  6. People v. Nunez (2008) 167 Cal.App.4th 761, the Second Appellate District, Division 8 held that where the court sentences the defendant to  concurrent state prison terms for two offenses, only one of which was a violent offense, 15 percent limitation pursuant to section 2933.1for violent offenders, applied to both terms.  The court drew from the Supreme Court’s lack of criticism of People v. Ramos (1990) 50 Cal.App.4th 81 wherein that court held that the credit limitation applies to the offender, not the offense, supports this conclusion, and it is not determinative if the sentence is concurrent or consecutive for the 15% limitation to apply.

  7. People v. Kimbell (2008) 168 Cal.App.4th 904, the Second Appellate District, Division 8 held that even though the trial court officially discharged the jury, after the jury had rendered its verdict under section 1164, then the prosecutor advised court that the jury was not waived for the trial on the defendant’s prior convictions, and before the jurors had even left jury box, the trial court retained jurisdiction to reconvene the jury.  If the verdict is incomplete or otherwise irregular, the court retains jurisdiction to reconvene the jury if the jury has not yet left the court’s control.  (See People v. Hendricks (1987) 43 Cal.3d 584, 597.)  Additionally, the court held that section 2933.1's 15% limitation on presentence custody credits is applicable only when defendant’s felonies are listed as violent felonies, and since the defendant was not convicted of a crime listed as a violent felony under section 667.5, subdivision (c), appellant was awarded those credits under section 4019, and given his proper good/work time credits as calculated pursuant to People v. Culp (2000) 100 Cal.App.4th 1278.

  8. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third Appellate District held that trial court did not err in applying 15 percent limit to time, pursuant to section 2933.1, deemed served on his misdemeanor convictions.

  9. In re Gomez (2009) 179 Cal.App.4th 1272, the Fourth Appellate District, Division 3 held that where the court stays the sentence for the violent felony conviction of a crime that would qualify for credit limitation under section 2933.1 had it not been stayed behind other convictions, the defendant is not limited to the 85 percent credit limitation.  Section 2933.1, subdivision (a) has no application to a prisoner who is not actually serving a sentence for a violent offense.  (In re Phelon (2005) 132 Cal.App.4th 1214, 1219.)

  10. In re Pope (2010) 50 Cal.4th 777, the California Supreme Court held that where the defendant pled guilty to gross vehicular manslaughter, a nonviolent felony, but also to two felony counts of alcohol-related driving and to great bodily injury enhancements, which turned them into violent felonies, appellant was subject to section 2933.1, subdivision (a)'s 15% limit on worktime credits, even though the court had stayed sentence on the two violent felonies pursuant to section 654.  Section 2933.1, subdivision(a), which provides that it applies to “any person who is convicted of” a violent felony notwithstanding any other law, clearly and unambiguously constituted an exception to section 654 and applied to the defendant's vehicular manslaughter conviction.

  11. People v. Brewer (2011) 192 Cal.App.4th 457, the First Appellate District, Division 4 held that Defendant was entitled to presentence conduct pursuant to section 4019, even though limited by section 2933.1, subdivision (a) to 15% credit even though he was sentenced to an indeterminate prison term with a maximum term of life imprisonment.  (See People v. Philpot (2004) 122 Cal.App.4th 893.)

  12. In re Borlik (2011) 194 Cal.App.4th 30, the Sixth Appellate District held based on the Supreme Court ruling in In re Pope (2010) 50 Cal.4th 777 [§ 2933.1, limiting conduct credits to 15 percent for violent felons applies when the defendant is convicted of both violent and nonviolent felonies, even when the sentence for the violent felony is stayed pursuant to § 654], applies retroactively, even to inmates who were released before the case was decided.  (See People v. Guerra (1984) 37 Cal.3d 385, 399; People v. Watson (2008) 43 Cal.4th 652, 688.) Retroactive application of In re Pope did not violate the defendant's right to due process, absent showing that the defendant relied on a contrary interpretation in entering his guilty plea.

  13. People v. Torres (2011) 198 Cal.App.4th 1131, the Sixth Appellate District held that witness dissuasion under section 136.1, subdivision (b)(1) is not a violent felony as there is no gang allegation attached; therefore, the court could not impose an enhancement under section 667.5, subdivision (a).  Additionally, since the current offense is not a violent felony, the credit limitation under section 2933.1, was improperly applied, and the defendant was eligible for credits under section 4019.

  14. People v. Fong (2013) 217 Cal.App.4th 263, the Sixth Appellate District held that section 2933.1, applies to any defendant subject to the section 12022.7, the great-bodily-injury enhancement.  The 1995 amendment to that section, which eliminated the requirement of proving specific intent to cause such injury in order to apply the enhancement, also eliminated any requirement that such intent be proven in order for section 2933.1 to apply.

D. Presentence Credits per 2933.2

  1. People v. Reyes (2008) 165 Cal.App.4th 426, the Second Appellate District, Division 8, held that section 2933.2, a statute effective June 3, 1998, depriving murder defendants of presentence conduct credits, does not apply to crimes committed prior to that date.

  2. People v. Johnson (2010) 183 Cal.App.4th 253, the Third Appellate District held that the provisions of section 2933.2 which deny credits to those convicted of murder do not allow credits under sections 4019 and 2933, those provisions that concern conduct and work time credits.  The trial court awards custody credits from the time of the defendant's arrest to the time he is remanded to state prison.  Any additional time spent in county jail before delivery to the state prison, even for a motion to reconsider sentence, is calculated by the agency to which the defendant was committed.  (§ 2900.5, subds. (b), (d), (e).)

  3. People v. Duff  (2010) 50 Cal.4th 787, the California Supreme Court held that section 2933.2 pertaining to presentence conduct credits to those convicted of murder applies to a defendant whose sentence for murder was stayed pursuant to section 654.

  4. In re Maes (2010) 185 Cal.App.4th 1094, it looks like no credit for anyone convicted of murder means no credit, no matter what; it is a broad & complete prohibition applied to all parts of the sentence.

  5. People v. Moon (2011) 193 Cal.App.4th 1246, the Third Appellate District held that section 2933.2 prohibits the award of conduct credits to those convicted of murder, even when granted probation since many cases find that the defendant is convicted upon the return of the guilty verdict or plea admitting guilt.  (People v. Davis (2010) 185 Cal.App.4th 998, 1001.)

E. Credits on Probation Cases

  1. People v. Gonzalez (2006) 138 Cal.App.4th 246, the Sixth Appellate District held that where the defendant was arrested on new charge while on probation for a domestic violence case; probation was revoked in the domestic violence case as a result.  Appellant completed his sentence on the domestic violence case, and remained in custody through the sentencing on the new case; custody and conduct credits, less those required to complete his sentence in earlier case, should have been granted against the new sentence and not the earlier case so as to avoid dead time.  (See People v. Marquez (2003) 30 Cal.4th 14, 20-21 [unlike in Bruner and In re Joyner (1989) 48 Cal.3d 487, the choice is not between awarding credit one or twice, but awarding credit once so to avoid dead time].)  By awarding all of the custody credits to the domestic violence case, the number of credits allocated exceeded the sentence imposed in that case.  Therefore, the credits had to be reallocated so as to avoid dead time.  (People v. Bruner (1995) 9 Cal.4th 1178, 1183.) 

  2. People v. Turner (2007) 155 Cal.App.4th 1432, the Third Appellate District held that probation conditions, (1) prohibiting defendant from associating with persons under age 18 is unconstitutionally vague and overbroad to the extent that it prohibited him from associating with such persons even if he did not know, and could not reasonably know, that a person was under that age.  (See In re Sheena K. (2007) 40 Cal.4th 875); and (2) also vague and overbroad is the condition prohibiting the defendant from possessing sexually stimulating materials to the extent that it prohibited him from possessing materials without notice from the probation officer that specific materials were considered sexually stimulating.  Additionally, the probation condition prohibiting defendant from patronizing places where sexually stimulating materials are available was vague and overbroad to extent it prohibited defendant from patronizing places that he did not know, and did not have reason to know, had such materials available.

  3. People v. Pruitt (2008) 161 Cal.App.4th 637, the Second Appellate District, Division 7 held that where a probationer is arrested and jailed on a new offense, and thereafter the same conduct that led to the arrest is alleged in a probation violation, and probation is revoked, and the violation is upheld after a hearing, and the previously stayed prison sentence is imposed (for the prior offense), the probationer is not entitled to credits pursuant to section 2900.5, subdivision (b) for the time spent in jail on the new charges, and prior to the summary revocation of probation.  (See People v. Huff (1990) 223 Cal.App.3d 1100 [credit is precluded for the sentence in one offense when custody is solely attributed to another offense].)  The Court of Appeal found that Huff did not conflict with People v. Williams (1992) 10 Cal.App.4th 827 or People v. Bruner (1995) 9 Cal.4th 1178 as this case and Huff are not “multiple restraint” cases.

  4. People v. Stump (2009) 173 Cal.App.4th 1264, the Fourth Appellate District, Division 3 held that where the defendant engaged in a course of illegal conduct that encompassed certain independent acts, none of which were illegal per se but were a violation of his parole, in addition to driving while under the influence of alcohol, both Vehicle Code section 23152, subds. (a) and (b), the defendant did not show that “but for” having driven under the influence of alcohol he would not have been held in custody for the time in question and thus was not entitled to good conduct credit.  (See People v. Bruner (1995) 9 Cal.4th 1178, 1192 [no credit unless the conduct leading to the sentence was a true and only unavoidable basis for the earlier custody].)

F. Waiver Issues

  1. People v. Juarez (2004) 114 Cal.App.4th 1095, the First Appellate District, Division 2, held that within the meaning of People v. Johnson (2002) 28 Cal.4th 1050, wherein the California Supreme Court held that a defendant’s agreement to waive presentence credits is binding on the defendant even though he would serve more than the maximum time of confinement if sent to state prison, the lower court did not err as the record established that the trial court was fully acquainted with the defendant’s case and made an informed decision to require the waiver of custody credits as a further incentive to complete his rehabilitation, trial court properly exercised discretion and did not require the waiver of time-served credits as part of any preconceived standard practice.  Trial court may not routinely impose a term of probation conditioned on defendant’s waiver of custody time credit but must exercise its discretion in determining when it is appropriate to do so.

  2. People v. Arnold (2004) 33 Cal.4th 294, the California Supreme Court held that where the defendant knowingly and intelligently waives jail time custody credits (see People v. Johnson (1978) 82 Cal.App.3d 183), after violating probation in order to be reinstated on probation thereby avoiding a prison sentence, the waiver applies to any future use of such credits should probation ultimately be terminated and a state prison sentence imposed.  The court only dealt with the waiver of pre-sentence credits and whether the waiver will be applied to a subsequent state prison sentence.

  3. People v. Jeffrey (2004) 33 Cal.4th 312, the California Supreme Court held that where the defendant knowingly and intelligently waives future credits to be earned in a residential drug or alcohol treatment facility, in order to be placed on probation (see People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055), and thereby avoid a prison sentence, the waiver applies to any future use of such credits should probation ultimately be terminated and a state prison sentence is imposed.  The result is consistent with the court’s companion case in People v. Arnold (2004) 33 Cal.4th 294.

  4. People v. Hilger (2005) 131 Cal.App.4th 1528, the Second Appellate District, Division 8, held, consistent with People v. Jeffrey (2004) 33 Cal.4th 312, and People v. Arnold (2004) 33 Cal.4th 294, where the defendant pled guilty and accepted probation offered by trial court on the condition that he waive custody credits, the waiver applied to all forms of such credit, including credit for time spent in a treatment program, absent an express limitation placed on the scope of the waiver by the trial court or by the defendant.  Additionally, the Court of Appeal found, also consistent with Arnold, supra, that the court need not advise the defendant that a “Johnson waiver” [defendant understands the waiver’s effect on his eventual sentence], applies to both county and state prison time.  Here, the defendant did not expressly limit his waiver to county jail, therefore he is not entitled to recapture his custody credits to reduce his time in state prison.

  5. People v. Black (2009) 176 Cal.App.4th 145, the Fourth Appellate District, Division 2 held that appellate was not entitled to section 4019 conduct credits or section 2900.5 credits for the time spent in a drug treatment program, given the waiver of those credits prior to entering the drug program, and there was insufficient proof to establish that the waiver was not voluntary nor based on counsel's insufficient explanation of the waiver, so therefore, there was no IAC.  (See People v. Jeffrey, supra, 33 Cal.4th at pp. 317-320.)

  6. People v. Urke (2011) 197 Cal.App.4th 776, the Third Appellate District held that  the defendant did not knowingly and intelligently waive his custody credits pursuant to People v. Johnson (2002) 28 Cal.4th 1050.  (See also People v. Arnold (2004) 33 Cal.4th 294, 307; People v. Mendoza (2009) 171 Cal.App.4th 1142, 1154, fn. 6.)

G. Custody Credits Within the Meaning of Section 2900.5 Are Awarded From the Time the Defendant Is Officially Booked Into Custody

  1. People v. Ravaux (2006) 142 Cal.App.4th 914, the Fourth Appellate District, Division 1 held that it was not error to deny the section 2900.5, subd. (a) credits, where the defendant is not in custody prior to being processed into a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution.  The court awarded the correct number of custody credits to the defendant by calculating the credits beginning at the time he was booked into jail and excluding one additional day of custody credit for the time he spent in police custody prior to his official booking.

  2. People v. Kunath (2012) 203 Cal.App.4th 906, the Second Appellate District, Division 6 held that where a defendant is arrested for possession for sale of narcotics, released on bail, is then arrested for an unrelated drug charge, and ultimately pleads guilty on both offenses at the same time, and is sentenced to concurrent 16-month prison terms, he is entitled to presentence credits on both cases.  (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9. [when concurrent sentences are imposed at the same time, presentence custody is credited against all].)  Also credits are given on both offenses if the time imposed is consecutive.  (People v. Schuler (1977) 76 Cal.App.3d 324, 330.)  Section 2900.5 is intended to provide equitable treatment for one held in pretrial custody on mere charges of crimes.  Where, as here, the defendant's custody is solely presentence on all charges and he is simultaneously sentenced on all charges to concurrent terms, the policy behind section 2900.5 applies.

H. Presentence Credits With an Existing Insanity Commitment

  1. People v. Callahan (2006) 144 Cal.App.4th 678, the First Appellate District, Division 1 held that where the defendant was charged with a new criminal offense while confined in a state hospital on an insanity commitment, and was found incompetent to stand trial on that offense and received a new incompetency commitment, the defendant was not entitled to any custody credits against the new commitment because his liberty was already restrained by the insanity commitment regardless of pretrial confinement on the new charge and because there is no right to conduct credit for time spent in the nonpenal confines of a state hospital.  Penal Code section 4019 just does not apply. 

  2. People v. Mendez (2007) 151 Cal.App.4th 861, the First Appellate District, Division 1, held that the court erred in awarding the defendant pre-sentence custody credits for time spent at state mental hospital prior to entering jail, where, even if the court had not ordered him committed based on mental incompetence, he would have been in the hospital pursuant to a civil insanity commitment stemming from previous unrelated charges.  (See People v. Callahan (2006) 144 Cal.App.4th 678, 681-683.)

  3. People v. Bryant (2009) 174 Cal.App.4th 175, the Second Appellate District, Division 5 held that where hospital staff reported that the defendant was competent to stand trial over two months before hospital’s medical director certified defendant was competent to stand trial, equal protection principles under People v. Sage (1980) 26 Cal.3d 498, 502-503, warranted that “defendant be given conduct credits under section 4019, that would have been earned had he been returned [to] the county jail if a timely restoration certificate had been issued.”  (See People v. Nubla (1999) 74 Cal.App.4th 719, 731-732 [similar to being held in CRC, and then not accepted].)

I. Home Electronic Monitoring Custody Credits

  1. People v. McEwan (2007) 147 Cal.App.4th 173, the Second Appellate District, Division 5 held that the superior court had no jurisdiction to consider an appeal by the defendant who pled no contest where no certificate of probable cause was obtained.  The notice of appeal attacked the validity of the plea and did not state an intent to appeal on any grounds which did not require a certificate of probable cause.  The defendant’s motion to construe the appeal as addressing noncertificate grounds was not supported by a declaration from the defendant, trial counsel, or counsel for defendant on appeal. (See rule 8.54, subd. (a)(2).)

J. When Either or Both the Prosecution and the Court Misinformed the Defendant Regarding His Eligibility for Good Behavior Credits, Telling Him He Would Receive 15% Rather Than 50% He Was Entitled to, His Due Process Rights Were Violated, and Therefore, the Convictions Are Reversed

  1. People v. Goodwillie (2007) 147 Cal.App.4th 695, the Fourth Appellate District, Division 1, held that the court did violate the defendant’s right to due process by misinforming him regarding his eligibility for good behavior credits, wherein he was entitled to 50% credits and not limited to 15% credits as he was told, under a plea bargain offered by the prosecution; where the record established that the defendant would have accepted the offer had he been accurately advised.  Therefore, the prosecution is required to either reinstate plea offer or set the case for retrial.

  2. People v. Miralrio (2008) 167 Cal.App.4th 448, the Third Appellate District held that even though the trial court and the prosecutor misadvised the defendant of the potential maximum sentence if he went to trial, it did not require reversal in the absence of the defendant showing a reasonable probability that he would have accepted plea offer had he been correctly advised. The court rejected appellant’s reliance on People v. Goodwillie (2007) 147 Cal.App.4th 695 which held that the court did violate the defendant’s right to due process by misinforming him regarding his eligibility for good behavior credits, wherein he was entitled to 50% credits and not limited to 15% credits as he was told, under a plea bargain offered by the prosecution; where the record established that the defendant would have accepted the offer had he been accurately advised.

K. Cruz Waiver and Vargas Waiver

  1. People v. Vargas (2007) 148 Cal.App.4th 644, the Fourth Appellate District, Division 2 held that where the defendant entered a negotiated plea with a “Cruz waiver,” (People v. Cruz (1988) 44 Cal.3d 1247) which provided that he satisfy certain conditions, including appearance in court on sentencing date and obeying all laws, he would receive a specified sentence.  However, if he violated one of the conditions he would receive the statutory maximum.  The defendant did appear as scheduled, but by that time he had committed a new offense.  Those facts did not preclude the court from imposing the maximum term sentence.  Where the court had specifically advised the defendant that he would receive statutory maximum, not merely “up to” such maximum, if he violated the conditions set forth at the time of the plea, the court was not required to consider a lesser sentence following a violation.  The court distinguished People v. Jensen (1992) 4 Cal.App.4th 978, and People v. Morris (1979) 97 Cal.App.3d 358, wherein the court unilaterally imposed a condition on the defendant’s plea agreement that the defendant had not negotiated with the district attorney, and therefore the defendant had not agreed upon.  The Court of Appeal also found that the Cruz waiver bars the defendant’s assertion that the imposition of upper term based on facts found by judge rather than by jury did not violate Cunningham, Jensen or Morris.

  2. People v. Puente (2008) 165 Cal.App.4th 1143, the Fourth Appellate District, Division 2 held that the trial court did not err in denying custody credits to defendant whose plea bargain included a “Cruz waiver,” (People v. Cruz (1988) 44 Cal.3d 1247, 1254 [the court can sentence defendant in excess of that agreed upon if he willfully fails to appear for sentencing]), where the credits were explicitly part of the waiver, and defendant violated the condition that he appear.  Appellant contended that the trial court deprived him of due process by not providing him with notice that he allegedly violated the terms of his “Vargas waiver” (People v. Vargas (1990) 223 Cal.App.3d 1107, 1113 [defendant agreed to a specified prison term if certain conditions were met and a longer specified term if they were not]), and by not stating a reason why appellant was found in violation of his Vargas waiver were not cognizable on appeal in absence of a certificate of probable cause.

L. Heroic Act Statute

  1. In re Young (2004) 32 Cal.4th 900, the California Supreme Court held that a two-strike defendant, who unquestionably saved a state prison employee from choking to death, would qualify for a “reduction” in his term pursuant to section 2935, and that the “credit” limitation in section 667, subd. (c)(5), did not preclude such a reduction for this class of inmate.  The term “credits” are different than the “reduction” of sentence pursuant to section 2935, and said section does not use the term “credits” in it provision.

M. Section 4019 Credits; Presentence Credits

  1. People v. Dieck (2009) 46 Cal.4th 934, the California Supreme Court held that a defendant is entitled to seven days of presentence credits for the five days he spent in jail prior to sentencing (see § 4019, subds. (e) and (f) [“a term of six days will be deemed to have been served for every four days spent in actual custody”]) or only five days (see § 4019, subd. (e) [“No deduction may be made under this section unless the person is “committed” for a period of six days or longer”]).  Section 4019 does not require that a defendant spend six days in presentence confinement in order to be entitled to receive conduct credit.  (See People v. Smith (1989) 211 Cal.App.3d 523.)  The statute entitles a defendant to conduct credit if he or she is “committed” for, a period of at least six days, without regard to the duration of presentence confinement.

  2. People v. Rodriguez REVIEW GRANTED:  (S181808) formerly at: (2010) 183 Cal.App.4th 1, the Fifth Appellate District held that the January 2010 amendments to sections 4019 and 2900.5, which contains no savings clause, may not be applied retroactively to defendants sentenced before amendment’s effective date.  This court found that the legislature did not make a clear and compelling implication that the amendment should be applied retroactively as the Supreme Court ruled in In re Estrada (1965) 63 Cal.2d 740.  Such prospective-only application does not violate equal protection.  A conduct credit statute within the meaning of People v. Dieck (2009) 46 Cal.4th 934, 939, fn.3), because of its incentive effect, is legally distinguishable from statutes that reduce punishment in other ways.

  3. People v. House (REVIEW GRANTED (S182813) formerly at: (2010) 183 Cal.App.4th 1049, the Second Appellate District, Division 1 held that the amended section 4019 is retroactive, and follows the rationale of People v. Brown (2010) 182 Cal.App.4th 1354, from the Third Appellate District and rejects People v. Rodriguez (2010) 182 Cal.App.4th 535, from the Fifth Appellate District.  “When the Legislature amends a statute for the purpose of lessening the punishment, in the absence of clear legislative intent to the contrary, a criminal defendant should be accorded the benefit of a mitigation of punishment adopted before his criminal conviction became final.  [Citation.]”  (In re Chavez (2004) 114 Cal.App.4th 989, 999.)  Applying the amendment prospectively does not address the fiscal emergency declared by the Governor.

  4. People v. Landon REVIEW GRANTED (S182808) formerly at:  (2010) 183 Cal.App.4th 1096 , the First Appellate District, Division 2 held that the amendments to section 4019 which change the calculation of presentence conduct credits, applies retroactively.  This court expressly disagrees with People v. Rodriguez (2010) 182 Cal.App.4th 535, which held that the credits were prospective only.

  5. People v. Delgado (REVIEW GRANTED) (S183663) formerly at: (2010) 184 Cal.App.4th 271, the Second Appellate District, Division 6 held that the defendant was entitled to the amendment to section 4019, for additional credits, where the amendment went into effect after she was sentenced.  This is consistent with People v. Brown (2010) 182 Cal.App.4th 1354; People v. House (2010) 183 Cal.App.4th 1049; and People v. Landon (2010) 183 Cal.App.4th 1096.

  6. People v. Norton REVIEW GRANTED (2010) 184 Cal.App.4th 408, the First Appellate District, Division 3 held that, consistent with People v. Landon (2010) 183 Cal.App.4th 1096, People v. Brown (2010) 182 Cal.App.4th 1354; People v. House (2010) 183 Cal.App.4th 1049; the defendant was entitled to retroactive application of amended section 4019.

  7. People v. Pelayo REVIEW GRANTED (2010) 184 Cal.App.4th 481, the First Appellate District, Division 5 held that the defendant was entitled to retroactive application of the amended section 4019 for additional conduct credits where the sentence was not yet final on direct appeal at the time the amendment went into effect.

  8. People v. Otubuah REVIEW GRANTED (2010) 184 Cal.App.4th 422, the Fourth Appellate District, Division 2 held that the amended version of section 4019 does not have retroactive application.

  9. People v. Hopkins REVIEW GRANTED (2010) 184 Cal.App.4th 615, the Sixth Appellate District held that the amended version of section 4019 does not have retroactive application, and applies prospectively only.

  10. People v. Keating REVIEW GRANTED (S184354); formerly at: (2010) 185 Cal.App.4th 364, the Second Appellate District, Division 7 held that the amendments to section 4019, which went into effect on January 25, 2010, and increased the good conduct credits available to a defendant for presentence custody in a local detention facility, apply to the defendant whose appeal was pending on that date.  The court follows all of those other cases that find the amendment apply retroactively and not merely prospectively.

  11. People v. Weber REVIEW GRANTED (S184873); formerly at:  (2010) 185 Cal.App.4th 337, the Third Appellate District held that the amendment to section 4019 applied retroactively and applied to appellant.  (See People v. Brown (2010) 182 Cal.App.4th 1354.)

  12. People v. Euseblo REVIEW GRANTED (S184957); formerly at: (2010) 185 Cal.App.4th 990, the Second Appellate District, Division 4, line up with the cases that indicate that the amendment to section 4019 do not apply retroactively in the award of presentence credits.

  13. People v. Bacon REVIEW GRANTED (S184782); formerly at: (2010) 186 Cal.App.4th 333, the Second Appellate District, Division 8 held that the amendments to section 4019 applied retroactively and applied to appellant.

  14. People v. Jones REVIEW GRANTED (S187135); formerly at:  (2010) 188 Cal.App.4th 165, the Third Appellate District held that where the defendant has suffered a prior serious felony conviction, and trial court strikes the conviction for enhancement purposes pursuant to section 1385, trial court may, but is not required to, also strike the prior for purposes of amended section 4019 making him eligible for additional sentencing credits.  (See People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193 [a prior serious felony conviction absolutely denies a defendant an opportunity for probation, and therefore is an increase in penalty].)  A defendant whose prior serious felony enhancement was stricken under section 1385, and who was sentenced before section 4019 was amended, is entitled to remand so court may exercise discretion as to whether to strike the prior for purposes of amended statute.

  15. In re Kemp REVIEW GRANTED (S191112); FORMERLY AT: (2011) 192 Cal.App.4th 252, the Third Appellate District held that the amendments to section 4019 applied retroactively and applied to appellant in the award of presentence credits, and the retroactive application does not violate the separation of powers doctrine.

  16. People v. Brewer (2011) 192 Cal.App.4th 457, the First Appellate District, Division 4 held that Defendant was entitled to presentence conduct pursuant to section 4019, even though limited by section 2933.1, subdivision (a) to 15% credit even though he was sentenced to an indeterminate prison term with a maximum term of life imprisonment.  (See People v. Philpot (2004) 122 Cal.App.4th 893.)

  17. People v. Zarate REVIEW\ GRANTED (S181963) formerly at:(2011) 192 Cal.App.4th 939, the Fourth Appellate District, Division 1 held that the trial court erred by not applying conduct credit for local custody time served pursuant to amended version of section 4019, where the defendant was in custody prior to amendments' effective date but was sentenced after amendments came into effect. Nothing in the amended version of the statute permitted the trial court to use a two-part approach in calculating conduct credit based on whether defendant’s presentence custody was served before or after the amendments' effective date.

  18. People v. Koontz REVIEW GRANTED (S192116) formerly at:  (2011) 193 Cal.App.4th 151, the Second Appellate District, Division 6 held that section 1385 vests the trial courts with the discretion to strike a prior serious felony conviction, charged as a “strike,” within the meaning of Romero, in order to afford the maximum allowable presentence conduct credits.  The Court of Appeal found this similar to People v. LoCicero (1969) 71 Cal.2d 1186 where the court held that ineligibility for probation based on a prior conviction is equivalent to an increase in penalty.  Similarly, since ineligibility for additional presentence credits under section 4019 is also an increase in penalty, the court has the power to strike the serious felony prior.  The trial court must exercise its discretion, under Romero and section 1385, whether the strike should be stricken so that the additional section 4019 credits can be awarded.

  19. People v. Nychay (REVIEW GRANTED): formerly at: (2011) 193  Cal.App.4th 771, the Fourth Appellate District, Division 1 held that the defendant was not entitled, on remand from the Court of Appeal, to a recalculation of his presentence custody credits under section 4019, when the remand is for the court to consider its discretion in setting the amount of the restitution fine.  Changing the restitution fine did not alter the time the defendant was ordered to serve, and therefore there is not recalculation under People v. Buckhalter (2001) 26 Cal.4th 20, 38.

  20. People v. Pacheco (2011) 194 Cal.App.4th 343, the Sixth Appellate District held that a juvenile adjudication is not a “conviction,” (see Welf. & Inst. Code § 203; People v. West (1984) 154 Cal.App.3d 100, 106; see also People v. Westbrook (2002) 100 Cal.App.4th 378, 382, 385), so the provision of section 4019 denying increased conduct credits to inmates previously convicted of a serious or violent felony does not apply, and the defendant is awarded the additional credits.

  21. People v. James (2011) 196 Cal.App.4th 1102, the Fourth Appellate District, Division 1 held that the prosecution is not required to plead and prove a prior strike, and the court can still consider a dismissed strike when determining whether to grant the enhanced custody credit provisions of Penal Code section 4019; and here the court found that it rendered him ineligible to earn the enhanced credits. (Cf. In re Varnell (2003) 30 Cal.4th 1132, 1138-39.)

  22. People v. Voravongsa (2011) REVIEW GRANTED (S195672) DEFFERED PENDING LARA; FORMERLY AT: 197 Cal.App.4th 657, the First Appellate District, Division 1 held that sex offender registration and prior serious felony convictions are “sentencing facts” in the context of determining whether addition credits should be awarded under section 4019 that need not be pled or proven.  (People v. James (2011) 196 Cal.App.4th 1102; Cf. In re Varnell (2003) 30 Cal.4th 1132, 1138-39.)  The Legislature envisioned sex offender registration and prior serious felony convictions as among the traditional facts of a crime or of a defendant's criminal history usually taken into account by sentencing judges.  This issue is pending review in a number of cases. 

  23. Payton v. Superior Court (2012) 202 Cal.App.4th 1187, the Fourth Appellate District, Division 3 held that the petitioner was entitled to additional conduct credits provided by amended section 4019 where all of his custody time was served after the effective date of the amendment.  Appellant had been placed on probation for an offense that was committed prior to the effective date of the section 4019 amendment.

  24. People v. Borg REVIEW GRANTED; FORMERLY AT: (2012) 204 Cal.App.4th 1528, the First Appellate District, Division 1 held that the 2011 amendments to section 4019, that grants custody credits to enumerated classes of prisoners previously denied them, but only with respect to conduct occurring after the operative date of the amendment, does not deprive those classes of prisoners of equal protection.  The Court of Appeal found that treating such prisoners differently than other classes of prisoners, who were permitted to earn additional credits for past conduct, had a rational basis in that legislature may have decided that the nature and scope of fiscal emergency required granting additional credits to the specified classes of prisoners previously denied them only after the effective date of the amendment.  This case is contrary to the holding in at least Payton v. Superior Court (2012) 202 Cal.App.4th 1187.

  25. People v. Gisbert (2012) 205 Cal.App.4th 277, the Fourth Appellate District, Division 3 held that the trial court erred in awarding section 4019, and section 2900.5 credits to the defendant when he was awaiting trial on a second offense, and while he was already committed to state prison in connection with an earlier conviction. (See § 2900.5, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1180-1181.)  The grant of presentence credits to which defendant was not entitled made the sentence “unauthorized,” so trial court had jurisdiction to entertain the prosecution's motion to vacate the credits.  (People v. Scott (1994) 9 Cal.4th 331, 354.

  26. People v. Brown (2012) 54 Cal.4th 314, the California Supreme Court held that former section 4019, which addressed a public funding emergency by increasing the amount of conduct credit available to some prisoners in local custody, applied prospectively, meaning that qualified prisoners in local custody first became eligible to earn credit at the increased rate beginning on the statute's operative date, January 25, 2010. The equal protection clauses of the federal and state Constitutions do not require that former section 4019 be applied retroactively.

  27. People v. Cruz (2012) 207 Cal.App.4th 664, the Fifth Appellate District held that changes to sentencing procedures under 2011 Realignment Legislation, which apply "prospectively to any person sentenced on or after October 1, 2011," do not apply to a defendant who was sentenced before that date, but whose conviction was not yet final on appeal. Prospective-only application of the sentencing changes made by the legislation does not violate equal protection, since treating the two classes of defendants differently has the rational purposes of limiting the number of inmates placed in county custody, avoiding costs that courts and counties would have to absorb as a result of the resentencing of numerous inmates, and maintaining the integrity of the original sentences.

  28. People v. Lara  (2012) 54 Cal.4th 896, the California Supreme Court held that the trial court's discretionary power to strike a prior serious or violent felony, "in furtherance of justice" under section 1385, did not authorize the trial courts to award conduct credits at the increased rate set forth in former section 4019 to sex offenders whose priors were serious felonies, or those with a prior conviction for a serious or violent felony.  The trial court struck the allegation under section 1385 in order to avoid the enhancements, but when a court has struck a prior conviction allegation it has not wiped out that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant's personal history and available for other sentencing purposes. (People v. Garcia (1999) 20 Cal.4th 490, 499; In re Varnell (2003) 30 Cal.4th 1132, 1138; People v. Burke (1956) 47 Cal.2d 45, 50-51.)

  29. People v. Ellis (2012) 207 Cal.App.4th 1546, the Fifth Appellate District held that the amendment to section 4019 that became operative October 1, 2011,and increased sentence credits given to certain prisoners applies only to eligible prisoners whose crimes were committed on or after that date. Such prospective-only application does not run afoul of rules of statutory construction or violate principles of equal protection.  The court found that the prospective-only application is similar to that found in People v. Brown (2012) 54 Cal.4th 314, 318-322, which addressed the amendment to section 4019 which took effect the January 25, 2010.

  30. People v. Kennedy (2012) 209 Cal.App.4th 385, the Sixth Appellate District held that the amendment to section 4019 which awarded greater custody credit to certain offenders whose crimes were committed on or after October 1, 2011, did not deprive defendant, who was in custody on that date as a result of a previously imposed sentence, of equal protection of the laws. A statute ameliorating punishment for particular offenses may be made prospective only without offending equal protection, because the legislature will be supposed to have acted to optimize the deterrent effect of criminal penalties by deflecting any assumption by offenders that future acts of lenity will necessarily benefit them.

  31. People v. Garcia (2012) 209 Cal.App.4th 530, the Second Appellate District, Division 5 held that the sentencing formula for presentence custody credits under section 4019 was properly based on the statutes in effect on date the crime was committed, which was that for every four days served, defendant would receive 2 days of credit, (see People v. Brown (2012) 54 Cal.4th 314, 318, fn. 4; Payton v. Superior Court (2011) 202 Cal.App.4th 1187, 1190), where subsequent amendments to section 4019 which had increased the amount of available credits, either were expressly made nonretroactive or were repealed before the defendant was sentenced.

  32. People v. Delgado (2012) 210 Cal.App.4th 761, the Fifth Appellate District held that section 1237.1 does not preclude a defendant from raising, as the sole issue on an appeal, a claim that his or her presentence custody credits were calculated pursuant to the wrong version of section 4019, and he is not just challenging the sentence calculation, which would be precluded on appeal by People v. Acosta (1996) 48 Cal.App.4th 411, 415-420.

  33. People v. Verba (2012) 210 Cal.App.4th 991, the Second Appellate District, Division 1, held that in applying a conduct credits formula of two days for every four days in custody, and not calculating the credits at two days for every two days in custody solely because the defendant committed his crime prior to October 1, 2011, the effective date of amendments to section 4019, did not deprive him of equal protection. The distinction between two similarly situated groups of defendants had two rational bases: (1) saving public funds and (2) preserving the deterrent effect of the law with respect to previously sentenced defendants.

  34. People v. Rajanayagam (2012) 211 Cal.App.4th 42, the Fourth Appellate District, Division 3 held that there is no equal protection violation for those defendants who committed there crime(s) and were jailed on and/or after October 1, 2011, who are entitled to enhanced credits under Criminal Justice Realignment Act, and those defendants jailed on and/or after that date for an offense committed before that date, who are not entitled to those enhanced credits (see People v. Brown (2012) 54 Cal.4th 314), as it rationally balances goals of public safety and cost savings (People v. Hofsheier (2006) 37 Cal.4th 1185 [the two groups must be similarly situated and treated differently]), and here the two groups are not similarly situated for purposes of the challenged law.

  35. People v. Torres (2012) 212 Cal.App.4th 440, the First Appellate District, Division 3 held that the trial court erred in failing to award custody credits for time already served on a modified sentence.  The defendant was originally sentenced to 2 years on one case, and then as part of a plea on a later case, that initial sentence was reduced to 8 months, and was actually completed months before the modified sentence was imposed.  The Court of Appeal held that the denial of credits within the meaning of section 2900.5, subdivision (b) on the first case from the time the 8 months had expired was error under People v. Gonzalez (2006) 138 Cal.App.4th 246 [extra time spent in jail on a sentence that was later modified and reduced should properly have been credited against defendant's sentence on new charges; unlike in Bruner and Joyner, the choice is not between awarding credit one or twice, but awarding credit once so to avoid dead time].)  The strict causation rule of Bruner and Joyner is not applicable where dual credits are not sought. (See also People v. Marquez (2003) 30 Cal.4th 14, 23.)

  36. People v. Tinker (2013) 212 Cal.App.4th 1502, the Sixth Appellate District held that the trial court erred in failing to award the correct credits under the September 2010 version of section 2933, subdivision (e), applicable at the time of the offense, and the defendant should have been awarded one-for-one good conduct credit provisions under this section, rather than two days for every four days served under section 4019, since the exclusions to the one for one credits in section 4019 did not apply to appellant.

  37. People v. Hul (2013) 213 Cal.App.4th 182, the Fourth Appellate District, Division 3 held that the trial court erred in the credits awarded at the time of his sentencing.  Pursuant to section 2933, subdivision (e)(1), which was in effect at the time of the defendant's offense, May 2011 (applicable to sentences on or after September 28, 2010 and October 1, 2011), said section and section 4019, subdivision (h) gave day-for-day credits to the defendant for pretrial custody credits.  Therefore, under sections 4019, subdivision (h), and 2933, subdivision (e)(1), the 16-month sentence for cocaine possession the trial court imposed would have been served in state prison, not in county jail. Accordingly, the applicable rate of presentence conduct credit should have been full, day-for-day credit. (See § 4019, subd. (h).)  Therefore, the trial court erred when it imposed the sentence under the Realignment Act (§ 1170, subdivision (h)), to be served in county jail, and only gave the defendant 2 for 1 credits.

  38. People v. Denman (2013)     Cal.App.4th    , reported on August 7, 2013, in 2013 Los Angeles Daily Journal 10375, the Fourth Appellate District, Division 2 held that based on the amendment to section former section 4019 and former section 2933, subdivision (e)(1), the defendant was entitled to additional custody credits. (See People v. Brown (2012) 54 Cal.4th 2314, 318, 320.) For a period of one year, September 28, 2010, until September 21, 2011 section 2933, subdivisions (e)(1) and (e)(3) were operative.  The defendant should be awarded credits from February 22, 2010 through September 27, 2010, under former section 4019, which allowed for two days of conduct credit for every two days spent in local custody.  The defendant is also allowed credits from September 28, 2010 until July 8, 2011, under former section 2933, subdivision (e)(1), one day for each day conduct credits.  On remand the trial court has the authority to calculate the credits under both former section 4019 and 2933, subdivision (e)(1)). (People v. Tinker (2013) 212 Cal.App.4th 1502, 1508-1509.)  The defendant recorded false quitclaim deeds that transferred nine properties he did not own to himself is properly convicted for filing false documents pursuant to section 115. (See Generes v. Justice Court (1980) 106 Cal.App.3d 678, 681-682.)