Sentencing Manual, Sections XI Through XV

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.

XI. Equal Protection; Realignment; 1170, Subdivision (h)

  1. People v. Dial (2004) 123 Cal.App.4th 1116, the Third Appellate District held that the delay in sentencing the defendant pending release from prison in another state did not deny him equal protection by precluding him from earning credit against California sentence for time served in the other state, whereas the defendant awaiting trial rather than sentencing would be entitled to be transferred to California following the demand or have charges dismissed pursuant to Interstate Agreement on Detainers.  Defendants awaiting trial and those awaiting sentencing are not similarly situated, and if they were, different treatment would be justified by compelling government interest.  Exemption of prisoners incarcerated outside state from 90-day limit for imposing sentence on incarcerated persons following request does not violate equal protection since out-of-state prisoners, whose presence might not be rapidly procured, are not similarly situated.  Trial court was not required to grant defendant a speedy sentencing where defendant demanded same but was incarcerated outside state and would not waive right to be present.

  2. People v. Lynch REVIEW GRANTED: FORMERLY AT: (2012) 209 Cal.App.4th 353, the Third Appellate District held that the defendant’s right to equal protection is not violated where the legislature’s limited the 2011 realignment act’s application (see § 1170, subd. (h)), to felons sentenced on or after its operational date of October 1, 2011. The trial court was not required to resentence the defendant who was sentenced to state prison prior to that date, but would have been sentenced to county jail if the act applied to him.

  3. 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.

  4. People v. Clytus (2012) 209 Cal.App.4th 1001, the Second Appellate District, Division 8 held that the defendant whose probation was revoked, and who had his previously suspended sentence executed after October 1, 2011, was required to be sentenced in accordance with the meaning of section 1170, subdivision (h), the Criminal Justice Realignment Act of 2011.

  5. People v. Griffis (2013) 212 Cal.App.4th 956, the Third Appellate District held that prior Washington convictions constituted sentencing factors that did not need to be pled and proven to a jury within the meaning of People v. Lo Cicero (1969) 71 Cal.2d 1186, or People v. Ford (1964) 60 Cal.2d 772.  This court found that serving a sentence in state prison rather than in county jail under realignment within the meaning of section 1170, subdivision (h), did not increase punishment. (See People v. Lara (2012) 54 Cal.4th 896, 905; see also In re Varnell (2003) 30 Cal.4th 1132, 1139-1141.) However, imposition of a third strike enhancement was not supported where there was insufficient evidence on the record that the elements of the Washington felonies would qualify as serious or violent felonies in California. The prior can be retried under Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615].

  6. People v. Guillen (2013) 212 Cal.App.4th 992, the Second Appellate District, Division 6 held that where a defendant pleaded guilty to a violation of Vehicle Code section 23152, subdivision (b), with a prior, made the defendant statutorily ineligible to serve his sentence in county jail pursuant to realignment under section 1170, subdivision (h).  The court so held because section 23152 makes no reference of section 1170, subdivision (h) while other section specifically do.

  7. 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, subd. (h)), to be served in county jail, and only gave the defendant 2 for 1 credits.

  8. People v. Torres (2013) 213 Cal.App.4th 1151, the Fifth Appellate District held that they disagreed with both the defendant and the prosecution that the defendant should be able to serve her sentence in county jail, under realignment (§ 1170, subd. (h)), even though the current sentence was imposed first, and it had been imposed on or after October 1, 2011. Instead, the Court of Appeal found that when a felony sentence that otherwise would have been served in county jail pursuant to section 1170, subdivision (h) is ordered to run concurrently to a sentence already being served in state prison, the entire sentence must be served in state prison.

  9. People v. Gipson (2013) 213 Cal.App.4th 1523, the Second Appellate District, Division 2 held, that it disagreed with Division 8 of this district in its ruling in People v. Clytus (2012) 209 Cal.App.4th 1001, which held that the defendant whose probation was revoked, and who had his previously suspended sentence executed after October 1, 2011, was required to be sentenced in accordance with the meaning of section 1170, subdivision (h), the Criminal Justice Realignment Act of 2011.  This court held that for purposes of the Realignment Act, a defendant is sentenced on the date that sentence is first announced and imposed, even if execution of the sentence does not occur until after the Realignment Act came into effect.

  10. People v. Prescott (2013) 213 Cal.App.4th 1473, the Second Appellate District, Division 8 held that the statutory presumption set forth in section 987.8, subdivision (g)(2)(B), that a defendant sentenced to state prison lacks the ability to pay defense costs does not apply to a defendant sentenced to county jail for a felony under 2011 Realignment Act. (See § 1170, subd. (h).)  The trial court ordered appellant to pay $400 in attorney fees without giving him notice or a hearing on ability to pay.  The matter is remanded for the court to conduct such a hearing, but the presumption will not apply.

  11. People v. Delgado (2013) 214 Cal.App.4th 914, the Second Appellate District, Division 6 held, in an opinion following rehearing, that an adult felon whose priors include juvenile adjudications that involve serious or violent felonies may not receive county jail commitments under the Realignment Act, since the Three-Strikes law indicates that all persons who has a prior serious or violent felony, be it as an adult or juvenile, must go to state prison when being sentenced, and therefore does not qualify for a county jail commitment under section 1170, subdivision (h) (realignment).

  12. People v. Mora (2013) 214 Cal.App.4th 1477 the Fourth Appellate District, Division 1 held that the Criminal Justice Realignment Act, section 1170 subdivision (h), which provides that certain defendants convicted of felonies serve their sentences in local jails rather than state prison if sentenced on or after October 1, 2011, does not apply to a defendant whose sentence was imposed and suspended before, and whose probation was revoked and the sentence executed on or after, October 1, 2011. Application of Realignment Act to some defendants but not others, based solely on each defendant’s sentencing date, does not violate equal protection rights of those defendants sentenced to state prison. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) The distinction has a rational basis in that pre-realignment defendants were charged, had opportunities to negotiate pleas, and were sentenced with the understanding that any term of incarceration for a felony would be served in state prison.

  13. People v. Kelly (2013) 215 Cal.App.4th 297, the Fourth Appellate District, Division 2 held that Defendant whose felony sentence was imposed prior to October 1, 2011 but executed after that date following revocation of probation must serve the sentence in state prison.  Section 1170, subdivision (h)(6), which provides that certain felons serve their sentences either in county jail or state prison, depending on sentencing date, does not, as applied to a defendant whose pre-October 1, 2011 sentence was executed after that date, violate the equal protection clauses. (See People v. Cruz (2012) 207 Cal.App.4th 664, 668, 674-680; see also People v. Gipson (2013) 213 Cal.App.4th 1523.)

  14. People v. Scott (2013) 216 Cal.App.4th 848, the Sixth Appellate District held that the trial court did not err by sentencing appellant to county jail even though it had placed him on probation, with a executed sentence suspended prior to the passage of the Realignment Act (§ 1170, subdivision (h)(6)), which went into effect, October 1, 2011.  (See People v. Clytus (2012) 209 Cal.App.4th 1001.)  The Court of Appeal found that the legislative intent behind Realignment Act was to shift low-level offenders convicted of certain felonies from state to county supervision in an effort to reduce recidivism and to conserve state financial resources.

  15. People v. Wilcox (2013) 217 Cal.App.4th 618, the Third Appellate District held that a defendant who was placed on probation prior to October 1, 2011, the operative date of the Criminal Justice Realignment Act, section 1170, subdivision (h), but had his probation revoked and his previously suspended prison term imposed after that date, must serve the term in state prison.  This case is in direct conflict with People v. Clytus (2012) 209 Cal.App.4th 1001, but is consistent with People v. Gipson (2013) 213 Cal.App.4th 1523, People v. Kelly (2013) 215 Cal.App.4th 297, and People v. Scott (2013) 216 Cal.App.4th  848.

  16. People v. Moreno (2013)     ca4    , reported on August 8, 2013, in 2013 Los Angeles Daily Journal 10466, the Sixth Appellate District held that prior to effective date of realignment, the defendant was sentenced to state prison. The sentence was then suspended and probation imposed, and where probation is revoked and sentence executed after realignment took effect, judge is without power to commit defendant to county jail, and he must serve his time in state prison. This court rejected the rationale of People v. Clytus (2012) 209 Cal.App.4th 1001, and in stead followed the rationale of People v. Kelly (2013) 215 Cal.App.4th 297.

XII. Does the Record Establish That the Prior Was a Strike if It Can Be Committed in Multiple Ways

  1. People v. Watts (2005) 138 Cal.App.4th 959, the Fifth Appellate District held that in a challenge to the prior, wherein the defendant had previously pleaded guilty to the prior offense, the court within the meaning of People v. Cortez (1999) 73 Cal.App.4th 276 and People v. Rodriguez (1998) 17 Cal.3d 253, held that on an appeal to challenge a finding that a prior conviction was a strike, where the prior conviction is for an offense which can be committed in more than one way, one or more of which would not qualify as a strike, and “if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike.  Here the prior offense was for a violation of section 12031, subd. (a)(2)(C), and for it to be a strike, it must be on the basis that the offense as committed constituted a felony violation of section 186.22.  Pursuant to People v. Robles (2000) 23 Cal.4th 1106, section 12031, subd. (a)(2)(C), was reasonably susceptible to two interpretations.  Under the “reasonable construction” which the Robles court rejected, the elements of section 12031, subd. (a)(2)(C) include only one of the elements of section 186.22, subd. (a), and as so construed, it cannot qualify as a strike.  Since the prior was by way of a plea, the court remanded the matter to give the prosecution the opportunity to try the prior.  (See People v. Barrigan (2004) 32 Cal.4th 238; People v. Cortez, supra, 73 Cal.App.4th at pp. 283-284.)

XIII. Probation Issues

A. Direct Filing on a Minor: Probation Report Needed

  1. People v. Garcia (2004) 118 Cal.App.4th 987, the Fifth Appellate District held that the trial court is not required to receive in evidence, read, and consider a social study by the probation officer, within the meaning of section 1170.19, subd. (a)(4), prior to imposing an adult sentence on a minor against whom charges were directly filed under the discretion granted the district attorney by Proposition 21.

B. Harvey Wavier

  1. People v. Beagle (2004) 125 Cal.App.4th 415, the Fifth Appellate District held that the rule expressed in People v. Harvey (1979) 25 Cal.3d 754, which prohibits the negative consideration at sentencing of dismissed charges, also applies to probation conditions.  Here, the court erroneous added drug conditions of probation after a drug charge had been dismissed as part of a plea negotiation.

  2. 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.

  3. People v. Linarez REVIEW DISMISSED; formerly at: (2007) 155 Cal.App.4th 1393, the Third Appellate District held that wherein the minor agreed to a waiver under People v. Harvey (1979) 25 Cal.3d 754, wherein appellant stipulated that the court could consider his entire prior criminal history and factual background of this case, including any dismissed or stricken charges, the court found not Cunningham or Black II error.

  4. People v. Martin (2011) 51 Cal.4th 75, the Supreme Court held that pursuant to the rationale of People v. Harvey (1979) 25 Cal.3d 754 factors underlying a charged criminal offense that is dismissed as part of a plea bargain cannot be considered in setting conditions of probation unless the defendant expressly consented to the conditions as he did in this case.

  5. People v. Ochoa (2011) 192 Cal.App.4th 562, the Third Appellate District held that section 1202.05, which prohibits visitation to a defendant convicted of certain sex crimes and who went to state prison for crimes against those victims, was not applicable to the defendant when those counts were dismissed, even with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, for which he was not sentenced to prison.  This is true even though, pursuant to the Harvey waiver, restitution was paid to the victims.

  6. People v. Snow (2012) 205 Cal.App.4th 953, the Third Appellate District held that the ruling set forth in People v. Harvey (1979) 25 Cal. 3d 754, that charges dismissed as part of a plea bargain cannot be considered for sentencing purposes in the absence of a waiver by the defendant, does not apply to an order requiring restitution for an uncharged offense as a condition of probation. Such condition may be imposed as long as it is not precluded by the plea agreement and is otherwise proper. Requiring the defendant convicted of a domestic violence offense to pay the victim’s dental bill resulting from a separate, uncharged assault was a proper probation condition because it was reasonably related to the offense of conviction and to the defendant’s rehabilitation.

C. Probation Eligibility

  1. People v. Lewis (2004) 120 Cal.App.4th 837, the Fourth Appellate District, Division One, held that the defendant was not ineligible for probation under section 1203, subd. (e)(3) and is not presumed ineligible for probation absent an explicit finding by the court that the defendant “willfully” inflicted great bodily injury, not those whose actions merely caused great bodily injury.  The court also found that the trial court, and not the jury may make the factual determination necessary to determine if appellant is eligible for probation.  (See People v. Dorsch (1992) 3 Cal.App.4th 1346, 1351.)  A sentence of 25 years to life in prison for assaulting a child with force likely to cause great bodily injury and resulting in death does not constitute cruel and/or unusual punishment.  (See People v. Norman (2003) 109 Cal.App.4th 221, 230.)

  2. People v. Sanghera (2006) 139 Cal.App.4th 1567, the Third Appellate District found that the court did not abuse its discretion in denying probation where the defendant had to establish exceptional circumstances under rule 4.413(c).  (See People v. Serrato (1988) 201 Cal.App.3d 761, 763.)

D. Wobbler Reduced to a Misdemeanor; Section 17, Subdivision (B); Straight Felony Cannot Be Reduced

  1. People v. Gilbreth (2007) 156 Cal.App.4th 53, the First Appellate District, Division 3, held that the defendant could not be convicted of crime of possession of firearm by convicted felon (§ 12021), where his predicate felony conviction had been reduced to a misdemeanor.  Once a wobbler has been reduced to a misdemeanor, it is a misdemeanor for all times.  (§ 17; Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477; see also People v. Banks (1959) 53 Cal.2d 370, 383-387.)

  2. People v. Mauch (2008) 163 Cal.App.4th 669, the Fourth Appellate District, Division 3 held that the offense of cultivation of marijuana (Health & Saf. Code § 11358), punishable “by imprisonment in state prison,” is a straight felony rather than a “wobbler;” therefore, it was error to reduce the offense to a misdemeanor under section 17, subdivision (b) as a part of appellant’s plea.  Appellant is permitted to withdraw his guilty plea.  The legislature has the sole authority to determine whether an offense is a straight felony, a wobbler, a misdemeanor or an infraction.  (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) 

  3. People v. Love (2008) 166 Cal.App.4th 1292, the Third Appellate District held that a defendant who ordered a gift card by means of a stolen credit card number “use[d]” the credit card within the meaning of section 484g, subdivision (a), and was thus guilty of a completed offense under that subdivision, even though the gift card went unissued after investigators informed the retailer that it was ordered with a stolen card.  Pursuant to People v. Garza (2005) 35 Cal.4th 866, 881, appellant cannot be convicted for both using a stolen credit card to obtain property and for receiving the same item as stolen property (sec. 496).  Finally, the failure of jury to make findings as to value of property obtained requires that convictions of grand theft and embezzlement be reduced to misdemeanors since the jury did not conclude that the value of the property was over $400.

  4. People v. Barkley (2008) 166 Cal.App.4th 1590, the Sixth Appellate District held that, the defendant suffered a prior “wobbler” conviction for assault was a “strike” wherein he was placed on probation with a jail term, and all of the orders made at the sentencing hearing, including orders regarding firearms and blood and saliva samples, were consistent with felony probation and inconsistent with the imposition of a misdemeanor jail sentence.  The court distinguished People v. Glee (2000) 82 Cal.App.4th 99, where, when imposing sentence, the court placed appellant of summary probation.  One can only receive summary probation for a misdemeanor. 

  5. People v. Myers (2009) 170 Cal.App.4th 512, the Second Appellate District, Division 6 held that where the trial court suspended imposition of sentence for the defendant’s conviction for possession of a controlled substance under Health and Safety Code section 11350, subdivision (a), and granted him Proposition 36 probation, the defendant’s conviction could not be reduced to a misdemeanor, even though defendant did not serve any prison time, because the statutory language of Health and Safety Code section 11055 does not authorize an alternative to imprisonment.  In most situations, the defendant’s conviction is erased from the books, and he does not have to disclose it.  However, for certain government job applications the fact of the conviction may have to be disclosed that he had a felony even though he successfully completed drug treatment probation, and as a result, he might suffer different consequences than one who has committed a misdemeanor does not constitute a denial of equal protection.

  6. People v. Feyrer (2010) 48 Cal.4th 426, the California Supreme Court held that the trial court has the discretion to reduce a wobbler to a misdemeanor despite the defendant's admission of a great bodily injury enhancement (§ 12022.7, subd. (a)), that could attach to a later felony sentence, if imposed.  The court initially suspended imposition of sentence and had placed appellant on probation.  The trial court terminated probation, but would not reduce the matter to a misdemeanor.  There is a major difference in placing appellant on probation without execution of sentence suspended (see People v. Howard (1997) 16 Cal.4th 1081; People v. Wood (1998) 62 Cal.App.4th 1262, 1265-1266 [cannot reduce a matter to a misdemeanor when sentence was executed and then suspended]), and imposition of sentence being suspended, where the court never sentenced appellant and had all of the sentencing options still open. (See People v. Glee (2000) 82 Cal.App.4th 99, 103; People v. Kunkel (1985) 176 Cal.App.3d 46, 55 ] [if the court declares the offense to be a misdemeanor, any enhancement applicable only to felonies, such as a 12022.7, is simply not imposed an ceases to have any significance].)  When a defendant is convicted of a wobbler, and is granted probation without imposition of sentence, the offense is “deemed” a felony, unless subsequently reduced to a misdemeanor pursuant to section 17, subdivision (b).

  7. People v. Lucas (2013) 214 Cal.App.4th 707, the Fourth Appellate District, Division 3 held that a serious felony prior conviction, within the meaning of section 667, subdivision (a) is added to the current sentence, and is treated as a serious felony, despite the previous reduction of that offense to a misdemeanor pursuant to section 17, subdivision (b)(3).  Similarly, the Court of Appeal held that the prior conviction can act as a strike within the meaning of the Three-Strike Law, since the nature or character of the offense is determined at the time of sentence, (see § 667, subd. (d); People v. Franklin (1997) 57 Cal.App.4th 68, 73; see also People v. Sipe (1995) 36 Cal.App.4th 468, 478 [whether a prior conviction is a  felony is determined on the date of the conviction, so reduction to a misdemeanor, later on is of no relevance to its classification as a felony.])

  8. People v. Park (2013) 56 Cal.4th 782, the California Supreme Court held that when the trial court has previously reduced a wobbler, in this case an assault with a deadly weapon to a misdemeanor, under section 17, subdivision (b)(3), that offense no longer qualifies as a prior serious felony within the meaning of section 667, subdivision (a).  The trial court therefore erred when it imposed the 5-year enhancement to enhance a subsequent felony sentence under Three Strikes Law.  Additionally, the court specifically held that the Court of Appeal’s reliance on this court's ruling in People v. Feyrer (2010) 48 Cal.4th 426, 435-441, is misplaced.

  9. People v. Culbert (2013) 218 Cal.App.4th 184, the Second Appellate District, Division 6 struck, based on People v. Park (2013) 56 Cal.4th 782, the prior-serious-felony conviction enhancement, (§ 667, subd. (a)(1)), and the convictions for possession of firearm and ammunition by a convicted felon, (see former §§ 12021 and 12316), since the prior conviction was reduced to a misdemeanor under section 17, subdivision (b).

E. Errors in Probation Report

  1. People v. Eckley (2004) 123 Cal.App.4th 1476, the Fifth Appellate District held that in denying probation and imposing a prison term, the court’s reliance on a probation report, two psychological reports, and a letter from a prison administrator, some of which contained material, factual misstatements, necessitated a remand for a new probation and sentencing hearing.  Such a hearing requires fundamental fairness (see People v. Peterson (1973) 9 Cal.3d 717), and the inaccurate statements deprived the defendant of that hearing, therefore, the matter had to be remanded for a new and fair hearing.

F. Restitution Payments, Probation, Acquitted of Offense

  1. People v. Kleinman (2004) 123 Cal.App.4th 1476, the Second Appellate District, Division 2 held that an order that convicted hit-and-run driver pay restitution, originally imposed as a condition of probation, remained in effect after probation was revoked and the defendant was sentenced to prison.  The Court of Appeal held that the defendant was not permitted to be rewarded by virtue of his violation of probation.

  2. People v. Chun (2007) 155 Cal.App.4th 170, the Third Appellate District held that where the defendant was convicted of street terrorism (§ 186.22), based on the shooting, and was properly ordered to pay restitution to all victims of that offense, including those against whom he was alleged to have committed other crimes of which he was acquitted.  The court distinguished, somehow finding a difference without a difference, People v. Percelle (2005) 126 Cal.App.4th 164, 180-181 [a defendant should not pay restitution for a crime for which he was acquitted].

  3. People v. Guiffre (2008) 167 Cal.App.4th 430, the Third Appellate District held that the court erred when it imposed a second restitution fine under section 1202.4, subdivision (b), after probation had been revoked, rather than a probation revocation fine under section 1202.44, after probation was revoked.  (See People v. Chambers (1998) 65 Cal.App.4th 189, 822.)

  4. In re K.F. (2009) 173 Cal.App.4th 655, the Sixth Appellate District held that objections to the sufficiency of the evidence used to justify specific items of restitution are deemed preserved for appeal.  For restitution purposes, a letter from the health maintenance organization’s (HMO’s) agent to the victim, advising that the victim was indebted to the HMO for “billed charges” in a specified amount, constituted substantial evidence that these charges were “incurred” by the victim.  “Explanation of Benefits” from HMO, listing a specified amount of “Ambulance Charges,” did not constitute substantial evidence that victim incurred those charges where it bore the prominent legend, “This is not a bill”; showed zeroes in the column marked “Coinsurance/Copayment”; had no entry in column marked “Amount Paid”; and informed victim that “Your Obligation” was “0.00.”  Where victim continued to be paid by his employer while recovering from injuries only by depleting his sick leave, such depletion represented a loss to him and it was not error for court to order payment for period of sick leave as restitution.  State disability payments to victim do not constitute a loss to victim, so it was error for court to include those amounts in its restitution order.

  5. People v. Holman (2013) 214 Cal.App.4th 1438, the Fourth Appellate District, Division 2 held that the trial court may suspend any outstanding restitution fines when it "expunges" a criminal conviction pursuant to section 1203.4.  The defendant had several different cases for which she was convicted, put on probation, violated probation, and then probation was reinstated.  Finally she successfully completed a drug treatment program, and the court terminated probation early.  The court properly dismissed all of the pending cases, and suspended or dismissed all of the fines imposed, including any restitution fines within the meaning of section 1202.4, that had not been paid.

G. Direct Restitution, a Victim or Not

  1. People v. Martinez (2005) 36 Cal.4th 384, the California Supreme Court held that the court’s order that the defendant reimburse the state agency for its costs of cleaning up a drug lab site, was unauthorized by the general restitution statute, section 1202.4, subd. (f), as the agency was not a “direct victim” of the defendant’s criminal conduct.  The exclusive statutory basis for reimbursement to the agency under those circumstances is Health and Safety Code sections 11470.1 and 11470.2, which establishes special procedures by which the agency may seek recovery.

  2. In re Tommy A. (2005) 131 Cal.App.4th 1580, the Fourth Appellate District, Division 1 held that the payment by vehicle owner’s insurance company for damages caused by the minor, who used the vehicle without the owner’s permission did not come “directly from” the offender/minor within the meaning of Welfare and Institutions Code section 730.6, subd. (a)(1) [the victim must receive payment from the minor for the loss], so neither that payment nor victim’s release of civil liability relieved the minor of the statutory obligation to pay the restitution for the hit and run accident.  The court distinguished People v. Bernal (2002) 101 Cal.App.4th 155, based on the statutory interpretation.

  3. People v. Rubics (2006) 136 Cal.App.4th 452, the Fourth Appellate District, Division one held that do to the fact that involvement in an accident causing the death or injury is an element of the crime of felony hit-and-run (see Veh. Code § 20001, subd. (a)), the funeral expenses resulting from the accident are an element of restitution for which the defendant may be held responsible.  The court’s order that  order that the defendant pay funeral expenses as an element of direct victim restitution was not an abuse of discretion where the defendant made an unsafe lane change, and the jury found this to be a cause of the accident.  (See People v. Carbajal (1995) 10 Cal.4th 1114, 1124 [applicable even though probation granted and not state prison as in this case].)  This is in spite of the fact that the defense presented evidence, including expert opinion testimony, suggesting that the accident may have been caused by the victim’s excessive speed and/or recent marijuana use.

  4. In re Dina V. (2007) 151 Cal.App.4th 486, the First Appellate District, Division 4 held that restitution can be based on “either” replacement cost or the actual cost of repairing the property within the meaning of Welfare and Institutions Code section 730.6.  (See In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392.)  In People v. Yanez (1995) 38 Cal.App.4th 1622, 1624-1625, the Fourth Appellate District, Division 2, held that restitution cannot be more than the loss to the property.  The restitution is limited to the cost of repair or replacement value, which ever is less.  This court failed to follow Yanez.

  5. People v. Giordano (2007) 42 Cal.4th 644, the California Supreme Court, held that section 1202.4, governing direct victim restitution, authorizes a court to require a convicted defendant to compensate the spouse of a deceased victim for his or her future economic losses attributable to the deceased victim’s death.  In determining amount of restitution to spouse of the deceased victim for future economic losses, the court may consider such factors as the earning history of the deceased spouse, the age of the survivor and decedent, and the degree to which the decedent’s income provided support to the survivor’s household as well as any factors relevant to the individual case and is not limited to amounts that would otherwise be recoverable from Restitution Fund.  The court’s method of calculating restitution, by averaging the decedent’s annual earnings for the last three years of his life and multiplying by five, was imprecise, but did not amount to an abuse of discretion where the decedent had been the family’s main support during the marriage, although the spouse had worked as a housekeeper for the last two years. 

  6. People v. Short (2008) 160 Cal.App.4th 899, the Third Appellate District held that where the defendant was convicted of driving under influence of alcohol and causing great bodily injury was driving his employer’s vehicle in the scope of his employment at time crime occurred, and victim received funds from employer’s insurer as settlement of a civil action against the defendant and employer because the defendant was covered by the terms of the employer’s insurance policy, the settlement was deemed to be restitution directly from the defendant; therefore the court erred in denying the defendant’s request to use settlement funds to offset 1victim restitution order in criminal action.  (See People v. Bernal (2002) 101 Cal.App.4th 155, 165-168; see also People v. Jennings (2005) 128 Cal.App.4th 42, 53-57.)

  7. People v. Woods (2008) 161 Cal.App.4th 1045, the First Appellate District, Division 1 held that the court erred in ordering the defendant to pay restitution to the family of a murder victim even though the defendant was only convicted as an accessory after the fact and given the fact he was sentenced to state prison, and since his “criminal conduct” did not result in economic loss.  (See People v. Lai (2006) 138 Cal.App.4th 1227, 1247.)  Had appellant been granted probation, the restitution could have been ordered.  (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

  8. People v. Slattery (2008) 167 Cal.App.4th 1091, the Third Appellate District held that the trial court erred when it ordered appellant, who pled no contest to one count of inflicting injury on an elder adult, to pay restitution to the hospital who treated victim because the hospital was not a direct victim of offense.  (See People v. Martinez (2005) 36 Cal.4th 384 [re: who is a direct victim].)  Additionally, appellant did not forfeit claim by failing to object to restitution order at sentencing because defendant’s claim fell within “unauthorized sentence” exception.

  9. People v. Bartell (2009) 170 Cal.App.4th 1258, the Third Appellate District held that a bank is a direct victim, entitled to victim restitution, when a person forges checks drawn on that bank and bank absorbs the loss.  Since the victim’s account whose checks were forged was not debited (see Cooper v. Union Bank (1973) 9 Cal.3d 371, 377, fn. 5 [if the bank does debit the customer’s account, the customer can compel the bank to recredit that account]), the bank was the only victim, and entitled to restitution.  (See People v. Crow (1993) 6 Cal.4th 952, 957.)

  10. People v. Hume (2011) 196 Cal.App.4th 990, the First Appellate District, Division 1 held that the trial court did not err in failing to reduce the defendant and former attorney's amount of restitution that the victims received from the California State Bar Client Security Fund (CSF). The court reasoned that although trial courts normally will credit a defendant from payments made to a victim from the defendant's own insurance company, the payments the CSF made to the victims are not equivalent to a defendant's own insurance company pursuant to People v. Bernal (2002) 101 Cal.App.4th 155, 165-168; see also People v. Hamilton (2003) 114 Cal.App.4th 932; People v. Jennings (2005) 128 Cal.App.4th 42, 53-57, or People v. Short (2008) 160 Cal.App.4th 899.

  11. People v. Stanley (2012) 54 Cal.4th 734, the California Supreme Court held that when a defendant damages a victim's vehicle, the trial court did not abuse its discretion by awarding victim, as restitution under Proposition 8, the full cost of repairing her vandalized truck, an amount well in excess of what she paid for it, where it was unlikely she could replace the truck for what she paid for it. (See In re Dina V. (2007) 151 Cal.App.4th 486.)

H. Does the Imposition of a Restitution Fine Violate a Defendant's Plea Agreement if not Expressed in the Agreement?

  1. People v. Crandell (2007) 40 Cal.4th 1301, the California Supreme Court held that the court’s imposition of a $2,600 restitution fine, which was not stated by the prosecutor when he recited parties plea agreement, did not violate the negotiated disposition where the court, before taking defendant’s plea, had accurately advised him he would “have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000" and ascertained that prosecution had not made “any other promises” beyond that he would be sentenced to 13 years in prison.  The court distinguished People v. Walker (1991) 54 Cal.3d 1013, where it was not mentioned in the negotiations nor before taking the plea, like it was, by the court, in this case.

  2. People v. Villalobos REVIEW GRANTED (S176574); formerly at: (2009) 177 Cal.App.4th 82, the Fifth Appellate District held that the trial court erred in failing to admonish the defendant of the statutory minimum and maximum of the restitution fine as a consequence of his plea, but such claim of error was forfeited when defendant failed to object before sentencing where the record indicated an absence of any bargaining or agreement on any terms regarding fines, restitution fines were left within trial court's discretion.  The court distinguished People v. Walker (1991) 54 Cal.3d 1013 , where it was not mentioned in the negotiations or before taking the plea, and followed People v. Crandell (2007) 40 Cal.4th 1301 where it left the restitution fine to the court's discretion.

I. Aggregation of Restituion Fine per Case, not per Sentencing and Court Security Fee Issues

  1. People v. Schoeb (2005) 132 Cal.App.4th 861, the Third Appellate District held that it was not error to impose multiple restitution fines (see § 1202.4, subd. (b)), where there are multiple “cases” that were not consolidated, even though the defendant was sentenced in one proceeding.  (See People v. Enos (2005) 128 Cal.App.4th 1046.)  The Court of Appeal additionally found that where a defendant is convicted in multiple cases, some of which involved multiple counts, trial court was required to impose a separate court security fee (see § 1465.8) for each count rather than merely one fee for each case.

  2. People v. Soria (2010) 48 Cal.4th 58, the California Supreme Court held that if cases are not formally consolidated and separate pleas are entered in separately charged cases, “every case,” as stated in sections 1202.4 and 1202.45, plainly means that each case filed against a defendant, even if those separately filed cases are disposed of at a single hearing under a plea bargain.

J. Extension Revocation of the Probationary Period

  1. People v. Jackson (2005) 134 Cal.App.4th 929, the Second Appellate District, Division 8 held that it is clear that section 1203.2, subd. (e) permits the extension of the probationary period in excess of the original maximum length where the court finds the defendant in violation of probation, formally revokes probation prior to the expiration of the probationary period, and sets aside the revocation. (See People v. Medeiros (1994) 25 Cal.App.4th 1260, 1266-1267.)  However, the court must find that the defendant has the ability to pay and willfully failed to do so, or the order violates due process.  (Ibid.)  Or, at a minimum, the court must indicate on the record that it considered whether the defendant was able to pay the restitution an whether he or she willfully failed to pay.  Here, there is no such finding by the court, and to the court would have had to extend probation for another 13 years to pay off the amount at the rate determined the defendant was able to pay.  The court found that the remaining debt be converted to a civil judgment, and that probation is terminated.

  2. People v. Williams (2007) 156 Cal.App.4th 898, the Fourth Appellate District, Division 1 held that where appellant/probationer entered a negotiated plea, pursuant to a specific sentence on his new case and to a midterm consecutive sentence in the case in which he was placed on probation, trial court had jurisdiction to impose the negotiated sentence notwithstanding pendency of defendant’s appeal in the earlier case (People v. Cunningham (2001) 25 Cal.3d 926, 1044 [a unauthorized sentence can be corrected at any time]), and her a sentence which would be unauthorized can be fixed prior to it becoming unauthorized.  Furthermore, the 120-day time limit under section 1170, subd. (d) for recalling and modifying the original sentence of probation is inapplicable.  Pursuant to People v. Mendez (1999) 19 Cal.4th 1084, 1094, and People v. Panizzon (1996) 13 Cal.4th 68, 74, the appellate court had no jurisdiction to entertain appellant’s claim of sentencing error where the allegedly erroneous application of sentencing rules was based on a negotiated plea and defendant failed to obtain a certificate of probable cause from trial court on a certificate issue.  (People v. Mendez, supra, 19 Cal.4th at p. 1088 [certificate of probable cause requirement is limited to “certificate” issues].)  “Noncertificate” issues, which do not require a certificate of probable cause, include postplea matters that do not challenge the validity of the plea, including attacks on the court’s discretionary sentencing choices left open by the plea agreement. (Ibid.)

  3. People v. Mendoza (2009) 171 Cal.App.4th 1142, the Sixth Appellate District held that the trial court does not have authority, while a defendant is still on probation, to reduce a county jail term imposed as a condition of probation, when the defendant has already served the term.  A court can modify a term of probation with a showing of a change of circumstances.  (People v. Cookson (1991) 54 Cal.3d 1091, 1093-1095.)

K. Probation Revocation Proceedings

  1. People v. Shepherd (2007) 151 Cal.App.4th 1193, the First Appellate District, Division 3 held that the hearsay testimony by a probation officer at the probation revocation hearing to the effect that substance abuse program official told the witness that the defendant had been asked to leave program after testing positive for alcohol was erroneously admitted (see People v. Arreola (1994) 7 Cal.4th 1144, 1148-1152; see also People v. Winson (1981) 29 Cal.3d 711), even under more lenient standard of admissibility applicable at such hearings (see People v. Maki (1985) 39 Cal.3d 707), where no justification was offered for declarant’s absence, no other evidence corroborated her statements, it was unclear from the testimony whether declarant observed the alleged violation or was simply reporting what she had been told by other unidentified persons at the program, and defendant denied having consumed alcohol while in the program.

  2. People v. Stanphill (2009) 170 Cal.App.4th 61, the Third Appellate District held that the Sixth Amendment confrontation clause does not apply in probation revocation proceedings as it only applies in criminal prosecutions, and a probation revocation hearing is not a criminal prosecution.  (People v. Rodriquez (1990) 51 Cal.3d 437, 441, 445, 447.)

  3. People v. Cervantes (2009) 175 Cal.App.4th 291, the Second Appellate District, Division 6, held that where the trial court was aware that the defendant was an undocumented alien when it granted probation, and then he was unable to appear for a 30-day review hearing because he was in the custody of immigration authorities, the trial court erred in finding the defendant in violation of probation.  A court may not revoke probation unless the evidence supports a conclusion that the probationer’s conduct constituted a willful violation of the terms and conditions of probation.  (People v. Galvan (2007) 155 Cal.App.4th 978, 982.)

  4. People v. Black (2009) 176 Cal.App.4th 145, the Fourth Appellate District, Division 2 held that the court when considering sentence after probation had been granted, violated, reinstated, and then violated again, can consider the conduct on probation from the original grant of probation and the previous reinstatement of probation in determining what sentence should be imposed, and is not limited to the conduct at the time of the original grant of probation under California Rules of Court, Rule 4.435(b)(1).  (See People v. Harris (1990) 226 Cal.App.3d 131, 143-144; distinguished from People v. Colley (1980) 113 Cal.App.3d 870.)

  5. People v. Burton (2009) 177 Cal.App.4th 194, the First Appellate District, Division 4 held that once expiration of a probation period is tolled, then as long as a probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during that probation period, a trial court retains jurisdiction to revoke probation after expiration of the probation term even if tolling was based on a violation that was ultimately unproven.

  6. People v. Landon REVIEW GRANTED (S182808) FORMERLY AT: (2010) 183 Cal.App.4th 1096, reported on April 14, 2010, in 2010 Los Angeles Daily Journal 5459, the First Appellate District, Division 2 held where the trial court was presented with overwhelming evidence that the defendant's conduct while on probation was unsatisfactory, and the court declined to grant probation after she pleaded guilty to driving under the influence, she could not establish prejudice from any alleged sentencing errors since she gave the court no reason to believe that she would comply with the conditions of her probation in the future.  This court declined to say that the probation hearing was unreliable, and therefore a violation of due process.  (See People v. Peterson (1973) 9 Cal.3d 717, 726 [the procedural safeguards for a probation do not have to be the same as a trial on guilt, but they cannot be fundamentally unfair].)  The hearing must also be reliable and cannot be based on unreliable information.  (See People v. Arbuckle (1978) 22 Cal.3d 749, 754-755; People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.)

L. Probation Denial Under Section 1203.066

  1. People v. Wills (2008) 160 Cal.App.4th 728, the Fourth Appellate District, Division 1 held that where a defendant was convicted of child molestation under section 288, subd. (a), and was found under section 1203.066, subd. (a)(8) to have engaged in substantial sexual contact with a victim under 14, rendering him presumptively ineligible for probation unless he met “all” criteria specified in section 1203.066, subd. (c), including the requirement that probation be in best interests of victimized “child,” the court had no authority to grant probation because the victim was no longer a child at time of sentencing, and court did not err to extent it denied probation without expressly considering whether probation would have been in victim’s best interests at time of molestation.

M. Deferred Entry of Judgment Section 1000

  1. People v. Kirk (2006) 141 Cal.App.4th 715, the Fourth Appellate District, Division 3, held that a guilty plea, even if sentence has not been imposed, constitutes a prior conviction for purposes of diversion, or deferred entry of judgment, within the meaning of section 1000, subd. (a)(1), which precludes a grant of drug diversion to a defendant previously convicted of a drug offense.

  2. People v. Ochoa (2009) 175 Cal.App.4th 859, the Third Appellate District held that the trial court erred in finding that the defendant’s conviction for possessing less than an ounce of marijuana (Health and Saf. Code § 11357, subd. (b), more than two years prior to the current offense of possession of cocaine and being under the influence, rendered him ineligible for deferred entry of judgment under section 1000, since the marijuana conviction “washes out” or is a nullity after the two year period.  Therefore, appellant is eligible for probation under section 1000, deferred entry of judgment.

  3. People v. Trask (2011) 191 Cal.App.4th 387, the Third Appellate District held that when the court grants deferred entry of judgment under section 1000 et. sec., and section 1211, it may not terminate a defendant from such diversion based solely on his inability to pay the fees of the program to which he has been referred.  The defendant must be referred to a program that provides no-cost drug diversion under section 1000, subdivision (c), or to a program with no cost within the provisions of section 1211.

  4. People v. Orozco (2012) 209 Cal.App.4th 726, the Fourth Appellate District, Division 3 held that the trial court erred in determining that appellant  did not qualified for deferred entry of judgment (DEJ), under section 1000, subdivision (a)(3).  A defendant is not disqualified for deferred entry of judgment if he has committed an offense related to "narcotics or restricted dangerous drugs", in this case a DUI, in addition to the crime eligible for deferred entry of judgment; because alcohol is neither a narcotic nor a restricted drug for purposes of subsection (a)(3).  Initially, appellant was granted DEJ for possession of cocaine, even though he also had a DUI.  Ultimately appellant was terminated from the program.  He moved for his reinstatement in front of another judge who denied it based on the DUI charge, and that was error.  However, substantial evidence supported second trial judge's termination of appellant's deferred entry of judgment when he was required to enroll in a drug treatment program, and he failed to enroll and participate in such a program in a timely manner.

N. Protective Order Improper But Stay Away Order as a Condition of Probation Is Valid

  1. People v. Selga (2008) 162 Cal.App.4th 113, the Third Appellate District held that where the defendant pled guilty to stalking Christina Reyes, his ex-girl friend and mother of his child, the court erroneously imposed a criminal protective order under section 1203.097, subdivision (a)(2) for her current boyfriend, but a requirement that defendant stay away from him, may be imposed as a general condition of probation under section 1203.1.

O. New Probation Report Issues

  1. People v. Conners (2008) 168 Cal.App.4th 443, the Second Appellate District, Division 8 held that the trial court erred in failing to grant a continuance and in sentencing appellant without a new probation report, essentially rendering the sentencing hearing fundamentally unfair.  (People v. Leffel (1987) 196 Cal.App.3d 1310, 1318-1319.)

  2. People v. Centeno REVIEW GRANTED; FORMERLY AT: (2013) 214 Cal.App.4th 843, the Second Appellate District, Division 2 held that the Court of Appeal found that the failure to have a supplemental probation report completed, since it had been over one year since the previous report, was harmless error.

P. Domestic Violence Counseling Is Mandated and Is not Discretionary When Section 1203.097 Is Required

  1. People v. Cates (2009) 170 Cal.App.4th 545, the First Appellate District, Division 5, held that the court erred in failing to order appellant attend a domestic violence program, which was mandated for the assault on his former girlfriend, under section 1203.097.  (People v. Delgado (2006) 140 Cal.App.4th 1157, 1163.)  Where trial court failed to impose mandatory condition of probation at time of sentencing, it was required to do so upon the error being called to its attention, even in the absence of a subsequent probation violation.

Q. The Court Can Impose Probation Restrictions on a Defendant's Use of Medical Marijuana

  1. People v. Brooks (2010) 182 Cal.App.4th 1348, the Second Appellate District, Division 6 held that the trial court did not abuse its discretion to impose a probation condition prohibiting probationer from using medical marijuana, even though probationer had a doctor’s recommendation for it.  The probation condition related to probationer’s offense for possession of a controlled substance for sale, and to petitioner’s potential for future criminality. Barring probationer from using marijuana did not constitute deliberate indifference to his medical needs.  (Estelle v. Gamble (1976) 429 U.S. 97, 107 [50 L.Ed.2d 251, 97 S.Ct. 285] [“deliberate indifference” by prison officials to an inmates medical needs could raise constitutional claims].)

R. The Court Can Restrict Internet use if the Conditions Are not Vague or Overbroad

  1. People v. Pirali (2013) 217 Cal.App.4th 1341, the Sixth Appellate District held that the a probation condition restricting access to the Internet to the defendant, who was convicted of possessing child pornography was unconstitutionally vague in the absence of a requirement that he know the device he is using is connected to the Internet. (Cf. In re Sheena K. (2007) 40 Cal.4th 875, 890 [pertaining to the knowledge requirement].) The condition forbidding the defendant from possessing or purchasing sexually explicit materials or pornography was unconstitutionally vague in the absence of a requirement that defendant be told by the probation officer that such items are sexually explicit or pornographic. (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436-1437.)

S. The Court Can Impose Restitution After the Defendant Has Completed Probation

  1. People v. Harvest (2000) 84 Cal.App.4th 641, the First Appellate District, Division 4, held that restitution to the victim, which is ordered after a criminal appeal, does not constitute punishment and as a result does not violate the double jeopardy clause or the Supreme Court's dictate in People v. Hanson (2000) 23 Cal.4th 355, wherein the High Court indicated double jeopardy prohibited increasing the statutorily-mandated restitution fine following retrial after appeal.  The dissent in this case disagrees with the majority that the restitution to the victim is civil in nature and as a result can be distinguished from the criminally based restitution fine as analyzed in Hanson.  The dissent maintains that restitution to the victim still operates as a criminal penalty, and is punitive in nature, thereby it is guaranteed double jeopardy and due process protection.

  2. People v. Moreno (2003) 109 Cal.App.4th 571, the Fifth Appellate District held that the trial court, after a criminal judgment has been entered and affirmed on appeal, may order the defendant to reimburse state for restitution payments made to the victim's family, through the Victim of Crime Program (VOC), even though the original sentence had neglected to make any provision for direct restitution. (See § 1202.46.)  The Court of Appeal also found that direct restitution is not a form of punishment, and therefore not subject to double jeopardy. (See People v. Harvest (2000) 84 Cal.App.4th 641, 645.)  The court distinguished People v. Hanson (2000) 23 Cal.4th 355, 360-363 [a restitution fine is a form of punishment].)

  3. People v. Ford (2013) 217 Cal.App.4th 1354, the First Appellate District, Division 3 held that the trial court maintained jurisdiction to determine and award victim restitution under sections 1202.4 and 1202.46, irrespective that the defendant’s probation had expired. (See People v. Bufford (2007) 146 Cal.App.4th  966, 969-970; see also People v. Giordano (2007) 42 Cal.4th 644, 65-653 [outlining legislative history].)

XIV. Plea Bargain Contracts

A. Plea Bargain as a Contract

  1. People v. Toscano (2004) 124 Cal.App.4th 340, the Second Appellate District, Division 1, held that where the defendant entered into a plea agreement allowing him to file a motion to dismiss a second-strike allegation, without limitation as to the grounds upon which the motion could be based, the trial court erred where it failed to consider the merits of the motion to strike, where it was based on the ground that the defendant did not knowingly plead guilty to the prior.  The Court of Appeal found that a plea bargain is interpreted according to the same rules as other contracts.  (Brown v. Poole (9th Cir. 2003) 337 F.3d 1155, 1159.)  Therefore, the defendant was entitled to a new hearing on that motion.

  2. People v. Chatmon (2005) 129 Cal.App.4th 771, the First Appellate District, Division Three, held that where the defendant, pursuant to a plea bargain, pleaded guilty to possession of cocaine, and received the benefit of probation and a dismissal of a resisting arrest (§ 148) count.  Had appellant been convicted of resisting, he which would have disqualified him from treatment under Proposition 36.  Appellant was not entitled to relief from a subsequent probation revocation since he was not sentenced under Proposition 36, but got the benefit of his bargain, even if the court acted in excess of its jurisdiction, so long as it had fundamental jurisdiction to sentence appellant.  Having received the benefit of his bargain, appellant cannot now trifle with the courts.  (See People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.) 

  3. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate District held that the court erred in staying the second of two five-year serious felony enhancements within the meaning of section 667, subd. (a)(1).  Even though the defendant failed to object to the “sentence structure” when it was announced, the court, on remand, must  restructure the sentence where the defendant did not agree in a plea bargain to condition his waiver of jury trial on court staying sentence enhancement.  (See People v. Buttram (2003) 30 Cal.4th 773, 789 [defendant had the right to argue for an appropriate individualized sentence within the constraints of the bargain, and as a result, he maintained his right to challenge the court’s exercise or lack thereof, of  that discretion.].)

  4. People v. Woosley (2010) 184 Cal.App.4th 1136, the Third Appellate District held that it was error for the trial court engaged in unlawful judicial plea bargaining by inducing the defendant to plead guilty in exchange for a commitment to dismiss an on-bail enhancement to reach the agreed-upon sentence over the prosecutor's objection.  (Cf. People v. Allan (1996) 49 Cal.App.4th 1507, 1516 [no bargaining when no charges are reduced].)  This was not a sentence bargain as it was in People v. Orin (1975) 13 Cal.3d 937.

  5. People v. Labora (2010) 190 Cal.App.4th 907, the Fourth Appellate District, Division 2 held that the trial court entered into an improper sentence/plea bargain with the defendant.  The people had standing to appeal the trial court's sentence on the grounds of in illegal judicial plea bargaining.  The trial court engaged in judicial plea bargaining where it gave defendant an indicated sentence of six years in prison with the possibility of running one of the counts consecutive, but then allowed defendant to enter his plea conditional on a six-year term and, while taking the plea, told defendant it would give him “a mid-term for the first count or six years, and run the others concurrent.”  (See People v. Woosley (2010) 184 Cal.App.4th 1136.)  The defendant was entitled to withdraw his plea but not entitled to specific performance of the initial indicated sentence where there was no contract with prosecutors to enforce.  (People v. Delgado (1993) 16 Cal.App.4th 551, 555.)

  6. People v. Clancey (2013) 56 Cal.4th 562, the California Supreme Court held that the trial court has the authority to indicate in advance of a defendant's plea to the charges, a sentence to be imposed on the then-current record, provided that the indicated sentence reflects the court’s best judgment as to the appropriate sentence based on defendant’s criminal history and current offenses regardless of whether defendant was convicted by plea or at trial.  However, where the trial court failed to make a clear statement that its indicated sentence reflected its best judgment, as opposed to an impermissible effort to induce a guilty plea, remand for reconsideration of the indicated sentence is required. When a trial court has invoked its statutory power to dismiss a strike allegation in order to indicate the sentence it would impose, the court has not engaged in plea bargaining. Whether the trial court in the case lawfully indicated the sentence it believed was appropriate, or instead offered to dismiss the strike conviction to induce a plea, is for the trial court to clarify when it rehears and reconsiders the plea on remand.

B. Does the Principal Term Have to Be the Longest Term of the Current Convictions When the Plea Bargain Sets a Range for the Judge's Discretion?

  1. People v. Miller (2006) 145 Cal.App.4th 206, the Sixth Appellate District held that where the plea agreement provided for an aggregate sentence not exceeding six years eight months in prison and further provided that court could consider a six-year sentence, the court did not have to elect the longest term available from the three current convictions to be designated as the principal term.  The defendant appealed was based on the contention that the court erroneously concluded that it lacked the discretion to not impose the longest principal term available to it within the meaning of section 1170.1, subd. (a).  People v. Felix (2000) 22 Cal.4th 651 and People v. Scott (1993) 17 Cal.App.4th 1383 do not apply to this plea bargain issue where the parties have given the court the discretion to sentence within a 6 month period.  This appeal is not an attack on the validity of the plea and thus did not require a certificate of probable cause.  When the court consolidated sentencing in three different cases, it had the discretion to select any of the three terms as the principal term; therefore, the court’s conclusion that it had to select the longest term as the principal term, resulting in maximum sentence allowed by plea bargain, was erroneous.

C. Need Objection re. Advice to Strike an Enhancement re: Consequences of Plea

  1. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth Appellate District, Division 2 held that unless there is an objection at or prior to sentencing, the defendant waived his right to be specifically advised of the direct consequences of admitting a prior conviction, including a strike.  (See People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)

D. Are Contentions Based on Section 654 Forfeited When the Defendant Agrees to a "Lid" and not a Specified Term Within the Meaning of California Rules of Court, Rule 4.412(b)? 

  1. People v. Jones (2013) 217 Cal.App.4th 735, the Third Appellate District on remand from the Supreme Court, held that the defendant, who agreed to a "lid" or a sentence within a specified maximum sentence and was sentenced within that maximum, forfeited the contention that sentence constituted multiple punishment for the same crime under section 654. (See rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 295; see also People v. Cuevas (2008) 44 Cal.4th 374.)  The defendant had argued that the plea agreement did not set a "specific prison term", because he agreed to a maximum term, not a specific term.  This is still an open question which the supreme court has not decided; but the court rejects it here.

E. The Trial Court Can Property Reject a Plea Bargain Unless One of the Three Exceptions to Section 1192.7, Subdivision (A)(2)'s Probition Against Plea Bargaining Applies

  1. People v. Barao (1203)     Cal.App.4th    , reported on August 6, 2013, in 2013 Los Angeles Daily Journal 10344, the Third Appellate District held that the trial court properly rejected a plea bargain under which murder charge would have been reduced to voluntary manslaughter.  A section of Proposition 8, section 1192.7, subdivision (a)(2), proscribes a plea bargain in murder case unless one of three exceptions is met, none of which was present in this case. (See People v. Arauz (1992) 5 Cal.App.4th 663, 669.)

XV. Section 1203.4

  1. People v. Arata (2007) 151 Cal.App.4th 778, the Third Appellate District held that the statute prohibiting the court from expunging, pursuant to section 1203.4, a conviction for a violent sexual offense under section 288, subd. (a), violates due process as applied to a defendant who was convicted prior to statute’s enactment and who entered into plea agreement in reliance on the relief available under section 1203.4.  (See INS v. St. Cyr (2001) 533 U.S. 289 [150 L.Ed. 347, 121 S.Ct. 2271].)  Additionally, not all parts of plea bargains need to be expressed; plea bargain terms can be implied.  (See People v. Harvey (1979) 25 Cal.3d 754, 758.)  Section 1202.4 relief if part of the bargain made with a probationer.  (People v. Johnson (1955) 134 Cal.App.2d 140, 143.)  Since the de’s plea rested in a significant degree on the promise of an eventual section 1203.4 relief, such promise must be fulfilled.  (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed. 427, 433, 92 S.Ct. 495].)

  2. People v. Mgebrov (2008) 166 Cal.App.4th 579, the First Appellate District, Division 2 held that section 1203.4, subdivision (a), which provides for the setting aside of certain convictions, permits the setting aside of convictions on individual counts that were tried together in cases where the defendant is not entitled to relief as to the entire case.

  3. People v. Johnson (2012) 211 Cal.App.4th 252, the Fourth Appellate District, Division 2 held that where the defendant was given probation for misdemeanor offenses, and who violated the terms of probation, and was ordered to do time in county jail for those offenses, moved to have those matters expunged under section 1203.4 (a defendant who has fulfilled the conditions of probation for the entire probationary period to have a plea or verdict of guilty changed to one of not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed), and whose probation was terminated early because a prison term has been imposed on him or her in felony cases, is not eligible for relief under section 1203.4.