Sentencing Manual, Sections XXVI Through XXXI

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.

XXVI. A Defendant Cannot Be Sentenced to a Penal Code Section that Does not State a Crime, but Is Only a Penalty Provision

  1. People v. Vasilyan (2009) 174 Cal.App.4th 443, the Second Appellate District, Division 8 held that the defendant’s conviction for violating section 422.7 was void because that section states the penalty for certain crimes, but does not itself define any crime.  (See People v. Wallace (2003) 109 Cal.App.4th 1699.)  Because the conviction was void, the defendant who did not appeal, was entitled to attack it collaterally, and trial court was required to set aside the conviction on defendant’s motion.

XXVII. Expert Witness at Sentencing Hearing Evidence Code Section 730

  1. People v. Stuckey (2009) 175 Cal.App.4th 898, the Third Appellate District held that Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings, nor does the federal or state constitution entitle an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts echo the arguments of defense counsel.  Although appointment of experts may be required when a defendant shows that they are necessary to formulate an affirmative defense to criminal charges or to rebut an expert witness retained by the prosecution to render an expert opinion at sentencing, a defendant may not require the trial court to appoint experts at public expense merely to supplement the arguments of counsel at sentencing.

XXVIII. Aggragate Sentence Imposing Both Indeterminate and Determinate Terms

  1. People v. Neely (2009) 176 Cal.App.4th 787, the Second Appellate District, Division 6 held that the trial court erred in imposing sentence for the defendant's attempted robbery convictions based on the determination that three years was the middle term rather than two years pursuant to section 213, subdivision (b).  The trial court also erred in failing to sentence the defendant for crimes punishable by imposition of determinate terms separately from the crimes punishable by imposition of an indeterminate term and then aggregating those sentences together to form an aggregate term of imprisonment.  (See People v. Ottombrino (1982) 127 Cal.App.3d 574, 588 [sentencing is conceptualized into separate boxes, determinate and indeterminate].)  As a defendant cannot receive separate punishment for multiple offenses arising out of a single, indivisible course of conduct pursuant to section 654, the defendant's sentence for attempted robbery of the murder victim had to be stayed since the murder was committed as part of the attempted robbery.  A defendant may be subject to an aggregate sentence that is greater than initially imposed when a case is remanded for resentencing because the original sentence was unlawful or unauthorized.

  2. People v. Sanders OPINION VACATED; formerly at: (2010) 182  Cal.App.4th 1626, the Second Appellate District, Division 8 held that the trial court did not err in failing to grant a motion for a mistrial, in a murder prosecution, as the defendant's Sixth Amendment rights were not violated by trial court's decision not to strike all of witness's testimony or grant a mistrial, after the witness refused to disclose the identity of the people who he said approached him with information about unknown shooter because those questions which the witness refused to answer concerned a collateral matter and the witness was extensively examined on all subjects that were material.  (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736 [striking a witnesses testimony is a drastic solution, only considered after less severe remedies are considered].)  One of the less severe remedies is allowing the jury to evaluate the witnesses credibility in failing to answer.  (See People v. Seminoff (2008) 159 Cal.App.4th 518, 526.)  As it pertained to the sentence, given the fact that the first count was an indeterminate count (a life sentence) when the 25 to life gun use enhancement is taken into account under section 12022.53, subdivision (d), and therefore not the principle count under the Determinate Sentencing Act, the sentence on count two was not a subordinate sentence and trial court did not err in imposing a full middle-term sentence for count two.  (People v. Mason (2002) 96 Cal.App.4th 1, 15.

XXIX. Penal Code Section 1170.9 Imoted States Military PTSD

  1. People v. Ferguson (2011) 194 Cal.App.4th 1070, the Fourth Appellate District, Division 3, held that although trial court erred in finding defendant was statutorily ineligible for probation for the second degree implied malice murder conviction, using an incorrect interpretation of section 12022.53, subdivision (g), the record clearly indicated that the trial court would not have granted probation, and placed the defendant on section 1170.9 probation, which is applicable to a defendant with PTSD following his military service when the 6 requirements of that section have been met, based on the severity of defendant's crime and the input received from victims' family, friends and associates.

XXX. Federal and State Prosecutions Under the Double Jeopardy Clause and Penal Code Section 656 and 793

  1. People v. Davis (2011) 202 Cal.App.4th 429, the Sixth Appellate District held that the defendant, who was previously convicted of an offense that caused him to register as a sex offender, changed residences first within California and later out of state without registering any of his new addresses.  The Court of Appeal found that he could be prosecuted in state court for failing to register his new California address (§ 290, subd. (f)(1)(A), now § 290.013), before he moved out of state, after he was prosecuted in federal court for failing to register as a sex offender after traveling in interstate commerce, without violating double jeopardy principles under sections 656 and 793 or the 5th Amendment Double Jeopardy Clause.  The state and federal prosecutions punished separate acts of failing to register, and the conduct at issue in the state court action occurred before defendant traveled in interstate commerce (Carr v. United States (2010) 560 U.S.     [176 L.Ed.2d 1152, 130 S.Ct. 2229] [failing to register under the federal statute is based on conduct that occurred after the defendant traveled interstate]), and before the effective date of the federal statute.

XXXI. Proposition 36 Three Strikes Modification

  1. People v. Yearwood (2013) 213 Cal.App.4th 161, the Fifth Appellate District held that Proposition 36, which amended the Three-Strikes Law does not apply retroactively within the meaning of In re Estrada (1965) 63 Cal.2d 740, 744-746, but operates prospectively only. Accordingly, proper remedy for a defendant scheduled to an indeterminate life sentence for an offense that would not qualify as a third strike under the amended law is to file a petition for a recall of his sentence in compliance with section 1170.126, as this section "functionally" operates as a "savings clause."

  2. People v. Superior Court (Kaulick) (2013) 215  Cal.App.4th 1279, the Second Appellate District, Division 3 held that as it pertains to a petition, filed by the defendant under section 1170.126, the prosecution has (1) a right to notice and an opportunity to be heard; (2) both the defendant and the victim of the crime have the right to be heard at any hearing on a petition for resentencing under the Act; (3) the resentencing should take place before the original sentencing judge, if available, although this is waivable, and (4) the prosecution has the burden of proof by a preponderance of the evidence on the issue of dangerousness.  Finally, there is no Equal Protection violation by a finding of dangerousness on less than a standard of beyond a reasonable doubt.

  3. People v. Conley REVIEW GRANTED; FORMERLY AT: (2013) 216 Cal.App.4th 1482, the Third Appellate District, after rehearing, held that where the defendant sought in the appeal to vacate his sentence due to the passage of Proposition 36, this past November 7, 2012, are not entitled to full retroactive application of that measure, even if their convictions are not yet final. The defendant sought an application of In re Estrada (1965) 63 Cal.2d 740, 744-746, which this court rejected.  The Court of Appeal found that Estrada does not apply since the language of Proposition 36 establishes a procedure to put those provisions into place. (See § 1170.126, subd. (b).)  Those persons who have been sentenced recently can recall their case within 120 days pursuant to section 1170, subdivision (d).  Those who cannot meet that time limit can petition for recall of sentence pursuant to section 1170.126, subdivision (b).  The court also rejected an equal protection claim.

  4. People v. Lewis REVIEW GRANTED; FORMERLY AT: (2013) 216 Cal.App.4th 468, the Fourth Appellate District, Division 2 held that Proposition 36, the Three Strikes Reform Act of 2012, is fully applicable to a defendant whose conviction was not yet final on appeal when the reform act was adopted and essentially follows the dictates of In re Estrada (1965) 63 Cal.2d 740, and rejects the analysis from People v. Yearwood (2013) 213 Cal.App.4th 161, and People v. Conley (2013) 216 Cal.App.4th 1482.  Therefore, the Court of Appeal concluded that the defendant must be sentenced under section 667, subdivision (e)(2)(C).

  5. People v. Hurtado REVIEW GRANTED: FORMERLY AT: (2013) 216 Cal.App.4th 941, the Second Appellate District, Division 1 held that when the superior court denies a request to recall a sentence pursuant to section 1170.126, the Three Strikes Reform Act, the defendant has a right to appeal that ruling as a postjudgment order affecting the substantial right of the party.  The Court of Appeal relied on section 1237, subdivision (b) and People v. Totari (2002) 28 Cal.4th 876 to establish that the challenge is by way of appeal and not by writ.  Here, the denial of the request to recall the sentence was upheld, since the defendant's third strike was a serious felony, a first degree burglary, and he had two qualifying prior serious felony offenses, the trial court properly found that he was excluded from being resentenced under the Three Strikes Reform Act.

  6. Teal v. Superior Court REVIEW GRANTED; FORMERLY AT: (2013) 217 Cal.App.4th 308, the Second Appellate District, Division 7 held that an order denying resentencing under Three Strikes Reform Act of 2012 on the ground that petitioner fails to meet the threshold requirement of being eligible for resentencing under the statutory criteria is not appealable but may be reviewed as either a writ of mandate or habeas corpus. (See People v. Segura (2008) 44 Cal.4th 921, 928 [treating a purported appeal as a habeas corpus for judicial economy].) Spousal rape (§ 262, subd. (a)), is a serious or violent felony, therefor the defendant does not qualify for resentencing under the Reform Act.