The Court of Appeal remanded for resentencing in light of two amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 124 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which limited the court’s ability to impose a sentence exceeding the middle term and created a presumption in favor of the low term under certain circumstances.
Victory Categories: Criminal
The Court of Appeal reversed the trial court’s order denying appellant’s resentencing petition, concluding that appellant had adequately pleaded a prima facie case for resentencing relief under former Penal Code section 1170.95 (now § 1172.6) and that the court erred by failing to appoint counsel before summarily denying the petition.
The Court of Appeal modified the probation condition prohibiting appellant from associating with drug users and traffickers to include an express knowledge requirement. The court also modified that abstract of judgment to include an additional day of presentence credit, which was originally left out due to a mere arithmetic miscalculation.
The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. Here, the record failed to show what aggravating factors the trial court relied on, whether the jury found such factors true beyond a reasonable doubt, and whether the aggravating factors that the court could consider under the amended statute would cause the court to re-impose the upper term.
The Court of Appeal modified the probation condition requiring appellant to comply with an individualized substance abuse treatment plan as ordered by the probation department to clarify that his substance abuse treatment was to be on an outpatient basis. The Court further held that the judgment should be clarified to indicate that the restitution fine under Penal Code section 1202.4(b) was stayed based on appellant’s inability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157.
In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the trial court’s order denying appellant’s resentencing petition, concluding that appellant had adequately pleaded a prima facie case for resentencing relief under Penal Code section 1172.6 and that nothing in the record of conviction conclusively refuted the pleaded allegations
The Court of Appeal held that the following probation conditions must be stricken or narrowed: (1) condition requiring appellant to “report any law enforcement contact to the Probation Officer within 24 hours for any reason” because it is unconstitutionally vague and overbroad in that it can be triggered by even the most insignificant contacts; (2) the condition requiring appellant to “[c]ooperate with the Probation Officer in a plan for psychological, psychiatric, or substance abuse treatment, or other rehabilitation, and follow all directions of the Probation Officer,” because it amounted to an unconstitutional delegation of judicial authority in that it allows the probation department to insist appellant participate in any type of plan for rehabilitation; (3) the condition requiring appellant to “[p]rovide a copy of any medical prescription to the Probation Department within 2 business days of its receipt” because it was overbroad in that it was not limited to psychotropic drugs or any other drugs that might be connected to defendant’s rehabilitation; and (4) the condition that prohibits appellant from associating with any “ ‘person, as designated by your probation officer,’ “ because it is unconstitutionally overbroad.
The Court of Appeal held that AB 333, which became effective while appellant’s appeal was pending and, among other things, amends the substantive elements of a gang enhancement (Pen. Code, §§ 186.22(b) & 12022.53(e)(1)), applies retroactively. The Court further held that the true findings on the gang and gang-related gun enhancements must be vacated and remanded for retrial because the jury did not make the factual findings required under the amended statute.
The Court of Appeal held that the trial court did not have a sufficient basis to toll appellant’s PRCS because he had not “absconded” from supervision (Pen. Code, § 3456(b)), but rather was incarcerated during the tolling periods. The Court, therefore, reversed the trial court’s order extending appellant’s PRCS and, since appellant’s three-years PRCS term had expired, directed the trial court to enter an order terminating it.
The Court of Appeal held that the trial court erred by imposing a $15,000 ($5,000 for each conviction), when the maximum allowable fine under Penal Code section 1202.4(b) is $10,000. The Court also directed the trial court to correct errors in the abstract of judgment.