Daily Archives: July 4, 2026

Amelioration, Sentencing

Case: 000139

Posted on by Gary McCurdy

Error and/or relief

The defendant contends, the People concede, and we agree the superior court erred in finding that the defendant was ineligible for relief as a matter of law with respect to his attempted murder conviction because in 2022 the Legislature clarified with the enactment of Senate Bill No. 775 that relief was available for individuals convicted of attempted murder and voluntary manslaughter. We reverse the order as to his attempted murder conviction. We remand for the court to appoint counsel and to consider the petition in light of the current provisions of section 1172.6.

First Holding:

Senate Bill 775, effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

PEN 1172.6

Second Holding:

Once a defendant files a facially valid petition with the required statutory language and a declaration that the defendant was eligible for relief under section 1172.6, subdivision (a), the court was required to appoint counsel upon request.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Probation Parole PRCS

Case: 000138

Posted on by Gary McCurdy

Error and/or relief

Probation Condition 13 is invalid under Lent and Ricardo P. In accord with Ricardo P., we will vacate Probation Condition 13 and remand for consideration of whether a more narrowly tailored electronic search condition may be devised and is justified on this record.

First Holding:

In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid. Generally, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The third prong of the Lent test requires a narrow tailoring evaluation to determine whether the burden an electronic search condition imposes on the probationer’s privacy is reasonably proportionate to the risk of future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122-1123

Second Holding:

Under Lent, the third prong reasonableness determination as explained and applied in Ricardo P. requires a case-by-case, record-specific balancing of factors. The third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. It is insufficient to say, categorically, that electronic surveillance improves effective probation supervision. A probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer.

Authority:

People v. Bryant (2021) 11 Cal.5th 976, 983, 984

Third Holding:

There must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. Even though a direct nexus between the search condition and underlying offense is not always required, there still must be information in a probation report that raises concerns about future criminality.

Authority:

In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166E

Fines and fees, Juveniles, Retroactivity

Case: 000137

Posted on by Gary McCurdy

Error and/or relief

The minor contends, and the People concede, that recent amendments to Welfare and Institutions Code section 730.6 apply retroactively, requiring that the restitution fine imposed by the juvenile court be stricken.

First Holding:

While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602.

Authority:

WIC 730.6

Second Holding:

Appellant is entitled to the ameliorative benefits of this amendment.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal]

Sentencing

Case: 000136

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Therefore, section 654 prohibits multiple punishment for offenses committed during a single or indivisible course of conduct.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208

Second Holding:

Section 654 prohibits the imposition of concurrent sentences for offenses committed during a single or indivisible course of conduct. The accepted procedure for such offenses is to sentence defendant for each count and stay execution of sentence on certain counts to which section 654 is applicable.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Third Holding:

The trial court erred by imposing punishment for both count 2 and count 3 because both offenses arose out of a single or indivisible course of conduct. Both counts 2 and 3 were committed during the defendant’s single or indivisible course of conduct of driving his car and causing injury to one victim. Therefore, section 654 prohibits punishment of the defendant for both counts. Because under amended section 654, the trial court has discretion whether to punish the defendant for either count 2 or count 3, we reverse its imposition of punishment for both counts and remand the matter for the limited purpose of resentencing him on count 2 and count 3.

Authority:

PEN 654

Amelioration, Sentencing

Case: 000135

Posted on by Gary McCurdy

Error and/or relief

We find that in making the prima facie determination, the trial court properly reviewed the preliminary hearing and partial trial transcripts as part of the record of conviction, completely independent from the factual basis stipulation at the plea hearing, to find defendant was the actual killer and ineligible for resentencing under section 1172.6. Defendant’s contrary claims, including his alleged “immunity” and ineffective assistance arguments, are refuted by the record. As in Patton, however, we grant defendant’s request to remand the matter for him to have the opportunity to file a supplemental petition in the trial court.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule by adding section 189(e). It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 50–51

People v. Strong (2022) 13 Cal.5th 698, 707–708

People v. Reyes (2023) 97 Cal.App.5th 292, 295

Second Holding:

While this appeal was pending, the California Supreme Court decided Patton and held that in making the prima facie determination as to whether a petitioner, who entered a plea instead of going to trial, was convicted under a now-invalid imputed malice theory of homicide in a section 1172.6 petition, the trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition. It disapproved of appellate decisions that conditioned the use of preliminary hearing transcripts to make the prima facie determination on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea. It affirmed the trial court’s denial of the section 1172.6 petition in that case but granted the defendant’s request to remand the matter for the opportunity to file an amended petition consistent with the Supreme Court’s ruling.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 569-570

Third Holding:

As relevant herein, the petitioner must declare (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine. (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)(1)–(3)

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 558

Fourth Holding:

When a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred.

Authority:

People v. Reyes (2023) 97 Cal.App.5th 292, 298

People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 559

Fifth Holding:

The amendments to sections 188 and 189 did not invalidate murder convictions based on the theory that the defendant was the actual killer. Where the record of conviction shows the defendant was the actual killer, he was not convicted under a now-invalid imputed malice theory and is ineligible for relief as a matter of law, and no evidentiary hearing is required. If the trial court commits error in making the prima facie finding to deny the petition without an evidentiary hearing, the error is harmless if the defendant is ineligible for resentencing as a matter of law.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 707

People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Garcia (2022) 82 Cal.App.5th 956, 973

People v. Lewis (2021) 11 Cal.5th 952, 973–974