Daily Archives: July 19, 2026

Abstracts and Minutes

Case: 000215

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously included the court operations fee and the criminal conviction fee that the trial court waived. The abstract of judgment should be modified to reflect that those fees were waived by the court.

Holding:

[Gary note: the court included no citation of authority, but the law is clear that an incorrect abstract of judgment must be corrected to reflect the actual judgment.  I have provided as authority some cases the court could have relied on.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000214

Posted on by Gary McCurdy

Error and/or relief

After the defendant was convicted, but before the judgment became final, AB 333 was enacted, and its application in defendant’s case. We vacate the gang enhancement allegation findings under section 186.22(b), and remand the matter to the trial court to permit the People to elect to retry the gang enhancements or, if the People do not so elect, for the trial court to proceed with resentencing petitioner in conformance with this opinion.

Holding:

AB 333 made substantial changes to the elements of criminal gang activity. These changes apply retroactively to all cases not yet final on the effective date of AB 333, January 1, 2022. A defendant is entitled to relief under AB 333 if an appellate court affirmed the judgment, but sentencing issues were pending upon remand as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

People v. Lopez (2025) 17 Cal.5th 388

Elements of crime, Sentencing

Case: 000213

Posted on by Gary McCurdy

Error and/or relief

The court sentenced the defendant to a term of 15 years to life for the crime of attempted murder with premeditation. The correct sentence for that offense requires the defendant to serve only seven years before parole eligibility. The sentence imposed on count 2 for attempted murder is reversed and the matter is remanded for resentencing only.

First Holding:

When the punishment for attempted murder is a life term, the defendant must be confined for at least seven years before parole eligibility.

[GARY NOTE: The opinion does not specify why attempted murder in this case carries a sentence of life. The crime is described in the opinion simply as attempted murder. However, the normal sentence for attempted murder is a determinate term of five, seven, or nine years, unless it is pleaded and proved that the murder attempted was willful, deliberate, and premeditated murder, per Penal Code section 664(a). Given that the trial court imposed an indeterminate term, I must assume that the attempted murder qualified for a life sentence, in which case section 3046 requires a minimum of seven years, not fifteen years, before parole eligibility.]

Authority:

PEN 3046(a)(1)

Second Holding:

We review the length of the defendant’s attempted murder sentence de novo, as it involves an issue of statutory construction.

Authority:

People v. Jefferson (1999) 21 Cal.4th 86, 94

Abstracts and Minutes

Case: 000212

Posted on by Gary McCurdy

Error and/or relief

The trial court is directed to prepare a corrected abstract of judgment to reflect that the defendant received two consecutive five-year enhancements for prior serious felony convictions under section 667(a)(1), rather than one 10-year enhancement. The trial court is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Holding:

The abstract of judgment erroneously reflects that the defendant received one 10-year enhancement under section 667(a)(1) for a prior serious felony conviction. We accordingly direct the trial court to prepare a corrected abstract reflecting that the trial court imposed two consecutive five-year serious felony enhancements.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the factual allegations were proved. If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Third Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

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