One bad Cheerio shouldn't spoil the sentence

What does a child do when a Cheerio falls from his cup onto the floor? A prudent child would throw it in the trash and continue eating the rest. Other children (including mine) would react with frustration by dumping the entire cup on the floor. (We felt lucky if this happened before the milk was poured.)

Unfortunately, the Court of Appeal has been emulating the latter response. More than once, where a new law supported retroactive reconsideration of part of a sentence, the Court of Appeal not only rescinded that part but further invalidated other parts of the sentence that were free from error or sentencing amendment. In other words, reversal compelled discarding both the dirty and clean Cheerios. The Supreme Court or the electorate should end this practice. 

Frederickson

This column already addressed the first case: "The unlockable prison gate," Mitchell Keiter, Daily Journal, Apr. 27, 2026. A unanimous jury found beyond a reasonable doubt that Travis Frederickson committed two first-degree murders, and thus the multiple-murder special circumstance applied. People v. Frederickson (2025) 116 Cal.App.5th 910; Pen. Code, § 190.2(a)(3). And a popularly-enacted initiative provides that where a jury finds a special circumstance, the only two sentence options are permanent: death or life imprisonment without possibility of parole (LWOP). Frederickson received LWOP, so he would remain behind bars for the rest of his life.

But the trial court also imposed a (superfluous) firearm enhancement because Frederickson personally used a gun in the killings. Because subsequent legislative amendment allowed courts to reduce or dismiss that enhancement, the court resentenced Frederickson, and dismissed the enhancement (aka the "dirty Cheerio.")

Yet the court went further. Without finding any factual defects in the evidence supporting the murder convictions, or finding any change in the relevant sentencing law, the court nonetheless reduced the convictions to second degree, rendering Frederickson ineligible for an LWOP sentence. The court justified the reduction by noting it "continues to believe that a man can turn himself around. And just try to better himself and better those around him."

But by enacting the initiative, the public expressed its belief that the "worst of the worst" (e.g., multiple murderers) do not deserve parole, and that a judge should not be able to substitute his belief that one can "try to better himself" for the public's enacted position that someone who has murdered two people should never get the chance to kill number three.

Cruz, Part I.

One possible lesson of Frederickson was that prosecutors should not pursue sentencing enhancements, as subsequent amendments could affect other parts of the sentence. But this month's decision in People v. Cruz (Aug. 5. 2026, H052815), ___ Cal.App.5th ___, suggests the opposite.

Brothers Omar and Juan Carlos Cruz threw hand signals at two victims from their car; Omar then fired shots while Juan steered and drove away. Both pleaded guilty to attempted murder with a firearm enhancement (or more); Juan received a 26-year sentence.

Juan successfully moved to reduce his conviction from attempted murder to aggravated assault through Penal Code section 1172.6. California had long authorized punishment for crimes based on either a subjective desire to harm, or, through the natural and probable consequences doctrine (NPC), an objective danger of such harm. "How Evolving Social Values Have Shaped (And Reshaped) California Criminal Law," Keiter, 4 Cal. Legal Hist. 393 (2009). But the Legislature abolished the NPC to ensure punishment according to defendants' own intent, not the principal's, no matter how dangerous the conduct.

Section 1172.6 further authorizes retroactive challenges to attempted murder convictions resting on NPC, as would occur if Juan intended to assist Omar only in committing an assault but Omar (alone) intended to kill. Because the conviction was by plea, no evidence showed Juan had the lesser intent to assault, but no evidence conclusively established that Juan intended to kill either.

Section 1172.6 operates most naturally where a jury returns a murder or attempted murder conviction after being instructed on the now-invalid NPC, so the jury might not have convicted without that theory.

It applies less naturally for pleas, though Juan might contend he would not have pleaded guilty if NPC liability had not been an available ground for conviction. Of course, the People could even more plausibly claim they would not have accepted a plea for aggravated assault and would have gone to trial. Cf. People v. Saibu, 81 Cal.App.5th 709, 748 (2022) [the People deserve evidentiary hearing to present formerly omitted but now relevant evidence].

Regardless, the court vacated the attempted murder conviction, replaced it with one for aggravated assault, and Juan's sentence dropped from 26 to 12 years--less than half the original sentence.  

Cruz, Part II.

But Juan was just getting started. His plea included an enhancement for personally using a firearm in committing the assault, which the court reduced from 10 to four years based on intervening statutory changes that made it harder to impose the upper term of a sentencing triad. But Juan insisted the court strike the enhancement altogether.

Although the underlying crime of attempted murder requires an intent to kill while the crime of aggravated assault does not, there is no difference in firearm enhancements based on attempted murder or aggravated assault. As Juan admitted he personally used a gun in the assault, and the purpose of section 1172.6 (formerly 1170.95) is "to punish a defendant commensurate with his individual culpability" (People v. Howard, 50 Cal.App.5th 727, 742 (2020)), Juan's individual culpability supported the personal firearm enhancement, without regard to NPC.

Howard recognized that only the invalid sentence ("dirty Cheerio") should be struck. The jury convicted Howard of felony murder and imposed a deadly weapon enhancement. Due to restrictions on the felony-murder doctrine, the Court of Appeal reduced the conviction from murder to burglary. But because the evidence indisputably established that the principal was armed during the fatal burglary, and section 1170.95 serves to "punish a defendant commensurate with his individual culpability," it was proper to impose an enhancement on Howard for partnering with an armed cohort in committing a felony (§ 12022(a)(1)), as it is to impose even more punishment on those (like Cruz) who personally use a firearm (§ 12022.5(a)). 

The Supreme Court distinguished Howard in a case where the defendant was charged with felony murder with an enhancement but instead pleaded guilty to second degree murder without an enhancement. People v. Arellano, 16 Cal.5th 457 (2024). The trial court reduced the conviction from murder to the underlying felony of attempted robbery (even though the second-degree murder plea would suggest his guilt did not depend on the felony-murder rule) and imposed the firearm enhancement.

But the enhancement was invalid because Arellano did not plead to it (and no jury found it true). The Supreme Court observed that Howard "relied on the fact the arming enhancement had been proved 'beyond any possible dispute' at trial, and Howard did 'not argue otherwise.' ... Howard is therefore distinguishable from the situation here, where no enhancement was admitted by Arellano nor found true by the jury." Having distinguished Howard, the Arellano court followed this sentence with a footnote: "We accordingly express no view whether the Howard court correctly imposed an enhancement that had previously been pled and proved."

The Supreme Court's holding nonetheless emphasized that a prior finding/plea on an enhancement is necessary and, apparently, sufficient: "We hold that ... section 1172.6, subdivision (e) does not permit a court to impose a sentencing enhancement or allegation unless the enhancement or allegation was pled and either proven to the trier of fact or by the defendant's admission in open court." (Emphasis added.)

The Court of Appeal's decision in People v. Cruz improperly expands resentencing relief by eliminating firearm enhancements based on conduct already admitted or proved, giving defendants an unwarranted sentencing windfall and undermining punishment based on individual culpability. Cruz noted that Arellano found "the Legislature presumably did not intend 'to allow the prosecution to effectively revisit its charging decisions ... every time a petitioner succeeds in setting aside a murder conviction.'" But the firearm enhancement does not require any "revisiting."

And its erasure gives the defendant an undeserved windfall. Defendants receive enhancements where their crimes are more culpable than the minimum, which occurs where they use a firearm or inflict great bodily injury. Section 1170.95 was designed to "punish a defendant commensurate with his individual culpability." It will frustrate that purpose if defendants who use a firearm or inflict serious injury receive the same sentence as those who do not.

Sentencing law seeks both to calibrate punishment according to individual culpability and to preserve personal security and social order. People v. Cavitt, 33 Cal.4th 187, 197 (2004); People v. Blake, 65 Cal.275, 277 (1884). The decision to erase sentences imposed for conduct already proved or admitted undermines both these goals. The Supreme Court should review and reverse, and let us finish our Cheerios.