Amendments to Pen C §1385. Effective January 1, 2022, Pen C §1385 was amended to require a court to dismiss a sentencing enhancement if it is “in the furtherance of justice to do so” and to give great weight in favor of dismissal in specific circumstances, unless the court finds that dismissal would “endanger public safety.” An exception exists if the court is prohibited by an initiative statute from dismissing an enhancement. Pen C §1385(c)(1)–(2). See §§1.18, 2.12, 3.20, 3.41, 5.4, 5.6, 5.10, 5.17, 5.31, 6.3, 6.6, 7.19, 8.12, 8.31, 10.9, 10.20, 11.2–11.22, 11.27, 11.30, 12.18, 12.19, 14.14, 15.20, 15.23–15.25, 15.32, 15.37, 15.39.
Amendments to Pen C §1170. New legislative amendments limit a sentencing judge’s discretion to some extent, specifying when the aggravated term may be selected and requiring that the lower term be imposed in certain situations. Under these amendments, the aggravated, or upper, term may only be imposed (Pen C §1170(b)(2))
when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.
See §§1.21, 1.24–1.25, 1.40, 2.5.
Proposition 47. In People v Walker (2021) 67 CA5th 198, a remand by the appellate court and order to resentence defendant to correct one component of the sentence obligated the trial court to correct another component of the sentence that had become incorrect due to Proposition 47. See §1.21B.
Proposition 64. Although initially subject to a split in authority, it is now settled that Proposition 64 does not entitle a defendant convicted of possession of marijuana in prison under Pen C §4573.6 to resentencing under the Control, Regulate, and Tax Adult Use of Marijuana Act. See §1.21C.
Rule Against Multiple Punishments Under Pen C §654. Previously, courts were required to order punishment under the provision that provides the longest potential term of imprisonment. See former Pen C §654(a); People v Kramer (2002) 29 C4th 720. However, effective January 1, 2022, that limitation is gone and courts have the discretion under Pen C §654 to impose sentence under any of the applicable provisions the of law. See §§1.26, 3.16, 3.37, 6.24, 8.10, 10.20, 11.3, 11.30, 12.17.
Imposition of Enhancements (Pen C §1170.1). New legislative amendments limit a sentencing judge’s discretion in the imposition of enhancements. The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. See Pen C §1170.1(d)(1)–(2). The recent amendment to Pen C §1170.1(d) did away with the explicit requirement that reasons for the sentencing choice must be put on the record. See §§1.28, 2.11, 3.32–3.33, 6.12, 8.6, 10.31, 10.32, 11.2–11.3, 11.10.
Certain Gang Predicates Eliminated. In the context of prosecuting gang enhancements, there were originally 33 predicate crimes. The 2021 amendments to Pen C §186.22(e)(1) dropped seven offenses from the list, consisting of looting (Pen C §463), felony vandalism (Pen C §594(b)(1)), felony theft of an access card or account information (Pen C §484e), counterfeiting, designing, using, or attempting to use an access card (Pen C §484f), felony fraudulent use of an access card or account information (Pen C §484g), identity theft (Pen C §530.5), and wrongfully obtaining Department of Motor Vehicles documentation (Pen C §529.7). See §7.5.
Current Offense Ineligible to Show Pattern of Criminal Gang Activity. By eliminating the current offense from the calculation of the “pattern of criminal gang activity,” the 2021 amendments to Pen C §186.22(e) legislatively overruled People v Loeun (1997) 17 C4th 1; People v Gardeley (1996) 14 C4th 605, 624, overruled on other grounds in People v Sanchez (2016) 63 C4th 665; People v Bragg (2008) 161 CA4th 1385; and In re I.M. (2005) 125 CA4th 1195. See §7.6.
Experts and Predicate Offenses. The facts concerning particular events and participants alleged to be involved in “predicate offenses” are “case specific”; the commission of predicate offenses must be proved by “independently admissible evidence.” People v Valencia (2021) 11 C5th 818, 826. It cannot be established solely by the testimony of an expert who has no personal knowledge of the facts of the case. 11 C5th at 839 (disapproving contrary language in People v Bermudez (2020) 45 CA5th 358, and People v Vega-Robles (2017) 9 CA5th 382). See §§7.6, 7.35.
Willfully Promoting, Furthering, or Assisting Felonious Conduct of Gang. The 2021 amendments to Pen C §186.22 narrowed the definition of “benefit.” The prosecution must now prove that the crime did more than simply benefit the gang’s “reputation.” Pen C §186.22(g). See e.g., People v Gonzalez (2021) 59 CA5th 643 (expert testified that gang members commit crimes to “bolster the status of themselves but also the gang”). See §7.10.
Imposing Weight Enhancements in Health & S C §11370.4 Cases. People v Haro (2021) 68 CA5th 776 criticized People v Estrada (1995) 39 CA4th 1235, following People v Mancebo (2002) 27 C4th 735 and People v Anderson (2020) 9 C5th 946, holding there was no fair notice that two weight enhancements would be aggregated. Such notice would be provided by pleading and proving the specific subdivision of Health & S C §11370.4 setting forth the alleged weight. See §8.20.
Kidnapping by Fraud. Asportation by fraud alone is not sufficient to support a general kidnapping charge. People v Lewis (2021) 72 CA5th 1. Further, deception is not an alternative to force when the charge is general kidnapping, even when the victim is a child. See People v Nieto (2021) 62 CA5th 188 (criticizing use of CALCRIM 1201 when kidnapping is based solely on deception rather than on forceful abduction of victim incapable of consent). However, kidnapping a child through deception with the intent to commit a violation of Pen C §288 satisfies the elements of Pen C §207(b), a specified form of kidnapping. Nieto, 62 CA5th at 197. See §§10.2, 10.14.
Establishing Firearm Use if Firearm Not Recovered or Seen. A firearm enhancement requires only conduct that produces fear of harm or force by means or display of a firearm. It does not require the victim to have seen, heard, or felt the gun. People v Jones (2021) 65 CA5th 1, 8 (defendant told victims that he had gun and gestured to indicate that he had unexposed gun in his pocket). See §10.35.
Prohibition on Probation Under Pen C §1203.07(a)(11) Eliminated. Effective January 1, 2022, Stats 2021, ch 537, repealed former Pen C §1203.07. As such, the prohibition on granting probation because of certain prior drug trafficking convictions no longer exists. See §15.26.
Plea Bargains and Penal Code §667.5(b) Enhancements. A number of courts have grappled with the question of whether prosecutors must be given the opportunity to withdraw from a plea agreement that included the now-vacated Pen C §667.5(b) enhancement. On October 8, 2021, the legislature clarified its intent that “any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” See Stats 2021, ch 728 (SB 483). The legislature also codified its directive that (Pen C §1171(d)(1))
this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.