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Seven Common Sentencing Discrepancies CDCR Notes

The CDCR will recommend resentencing for certain individuals, provided the prisoner is not otherwise disqualified from being recommended, when the prisoner’s sentence is now unlawful due to recent court decisions that make certain combinations of enhancements and sentencing methods illegal.
There are perhaps over twenty such rulings, but the seven most common are:
  1. Great Bodily Injury Enhancements (People v. Cook). In People v. Cook (2015) 60 Cal. 4th 922, the California Supreme Court ruled that under Penal Code § 12022.7(g), an enhancement for “infliction of great bodily injury” (Penal Code §§ 12022.7(a) – (e)) cannot be applied to a person convicted of murder, manslaughter, arson, or reckless burning. In addition, enhancements from Penal Code §§ 12022.7(a-d) cannot be applied to charges where an element of the crime is “infliction of great bodily injury.”
  2. Great Bodily Injury Enhancements (People v. Gonzalez). In People v. Gonzalez (2009) 178 Cal. App. 4th 1325, 1332, the Second Appellate District ruled that a judge cannot impose multiple enhancements for “infliction of great bodily injury” if the injuries come from the same offense. The judge may only impose the longest of the two enhancements (as the judge there imposed both enhancements). In Gonzalez, the appellate court ruled it was improper for the trial court judge to impose both a “great bodily injury” enhancement under Penal Code § 12022.7(a)) and a ten-year gang enhancement under Penal Code § 186.22(b)(1)(C) that arose from inflicting great bodily injury on the same victim during a single offense. As of June 2, 2022, according to the Ella Baker Center for Human Rights, there have been 326 people referred by the CDCR for resentencing on this error and 106 have been resentenced so far.
  3. Gun Enhancement (People v. Le). In People v. Le (2015) 61 Cal. 4th 418, 429, the California Supreme Court held that a judge cannot apply both a firearm enhancement under Penal Code § 12022.5(a)(1) and a serious felony gang enhancement (Penal Code § 186.22(b)(1)(B) when the offense is a serious felony if the only reason the judge is applying the firearm enhancement is because the offense involved firearm use. As of June 2, 2022, according to the Ella Baker Center for Human Rights, there have been 119 people referred by the CDCR for resentencing on this error and 55 have been resentenced so far.
  4. Gun Enhancement (People v. Rodriguez). In People v. Rodriguez (2009) 47 Cal. 4th 501, 504- 505, 509, the California Supreme Court said it was error for a judge to impose both a firearm enhancement under Penal Code § 12022.5(a) and a violent felony gang enhancement under Penal Code § 186.22(b)(1)(C) if both enhancements are based on the use of a firearm in a single offense. Only the greater of the two enhancements may be imposed (Penal Code § 1170.1(g)). As of June 2, 2022, according to the Ella Baker Center for Human Rights, there have been 149 people referred by the CDCR for resentencing on this error and 56 have been resentenced so far.
  5. Gang-Motivated Witness Intimidation Sentence (People v. Lopez). The Fifth Appellate District in People v. Lopez (2012) 208 Cal. App. 4th 1049 held that the seven years-to-life alterative sentence that can result from attempts to dissuade a witness (Penal Code § 136.1) that are motivated by gang activity (Penal Code § 186.22(b)(4)(G)) can only be applied if the defendant is convicted of felony dissuasion of a witness by use of explicit force or implied threat of force (Penal Code § 136.1(c)(1)).
  6. Possession of Child Pornography Charges (People v. Eric Manfredi). In People v. Manfredi (2008) 169 Cal. App. 4th 622, the Fifth Appellate District held that only one possession of child pornography charge (Penal Code § 311.11(a)) can be charged when there are multiple materials with child pornography at the same location even if the materials is stored in separate physical media.
  7. Consecutive In-Prison Felony Terms (People v. McCart). In People v. McCart (1982) 32 Cal. 3d 338, the California Supreme Court held that Penal Code § 1170.1(c) (formerly Penal Code § 1170.1(b)) requires the calculation of a single term of imprisonment for all convictions for felonies committed in prison and sentenced consecutively. Subordinate terms for consecutive felony offenses consist of one-third of the middle base term. As of June 2, 2022, according to the Ella Baker Center for Human Rights, there have been 171 people referred by the CDCR for resentencing on this error and 118 have been resentenced so far.
For more information about sentencing issues, please click on the following articles:
  1. CDCR Resentencing: Exceptional Conduct Exclusions
  2. Is SB1393 Retroactive to Allow Resentencing, Less Time?
  3. What Are Some Post Conviction Options to Consider?
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