Daily Archives: July 29, 2026

Duty of the court, Sentencing

Case: 000267

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
The trial court failed to calculate her presentence custody credits correctly. We agree the defendant is entitled to three additional days of presentence custody credit. We direct the trial court to prepare an amended abstract of judgment to reflect the correct amount of credit and transmit it to the California Department of Corrections and Rehabilitation.

Holding:

[GARY NOTE: There was no authority indicated in the opinion for the correction of the credit for time served, likely because the error is so obvious. For sake of completeness, the following authorities would support the court’s ruling.]

Authority:

PEN 2900.5(d) [It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.]

People v. Smith (1989) 211 Cal.App.3d 523 [A sentencing court must award credits for all days in custody up to and including the day of sentencing.]

People v. Duff (2010) 50 Cal.4th 787, 793 [At the time of sentencing, credit for time served, including conduct credit, is calculated by the court. The total number of days to be credited is memorialized in the abstract of judgment and shall be credited upon the defendant’s term of imprisonment. The credit in effect, becomes part of the sentence.]

Amelioration, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to 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 section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

People v. Dean (2024) 99 Cal.App.5th 391, 397

Elements of crime, Statutory interpretation

Case: 000265

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of attempted dissuasion of a witness. We reverse the attempted dissuasion of a witness conviction, and remand for resentencing. In this case, the indictment was filed in 2012, and the dissuading charge pertained to conduct that occured in 2016.

[GARY NOTE: THE STATUTE WAS AMENDED EFFECTIVE 1/1/2026, AND POST-COMPLAINT-FILING DISSUASION BY ITSELF IS NOW PUNISHABLE. I have chosen to post this victory anyway, because there are likely still cases in which the conduct occurred prior to 1/1/2026, and ex post facto prohibitions would preclude application of the amended law.]

First Holding:

Section 136.1(b)(2) makes it a crime to attempt to dissuade a victim or witness from causing a complaint to be sought and prosecuted, and assisting in the prosecution thereof.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986

[Gary note: remember that the statute has since been amended to outlaw the conduct that was not previously covered under section 136.1(b)(2).]

Second Holding:

The issue before the Supreme Court in Reynoza was whether section 136.1(b)(2) [Gary note: referring to the version in effect prior to the 1/1/26 amendment] required proof of an attempt to dissuade a witness from causing a charging document to be sought and prosecuted or whether the statute also independently applies where a defendant dissuades a witness only from assisting in the prosecution of a case after the charging document has already been filed.

Put another way, can the statute support a disjunctive interpretation—in which the statute independently applies where a defendant dissuades a witness from assisting in the prosecution of a case after the charging document has already been filed—or whether a conjunctive interpretation precludes a conviction under such circumstances.

The court concluded that because section 136.1(b)(2) is equally susceptible to both the conjunctive and disjunctive constructions, the rule of lenity points to an interpretation more favorable to the defendant. As a result, the statute must be read in the conjunctive construction, which does not permit a conviction to be based solely on proof of dissuasion from assisting in the prosecution of an already-filed charging document.

Consequently, because the defendant’s conduct in Reynoza amounted to, at most, dissuasion after a complaint was filed, the conviction had to be reversed. Therefore, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2).

[Gary note: Did I adequately mention that the ambiguity has been cleared up by the Legislature, effective 1/1/26, and now it is clear that section 136.1(b)(2) applies even if the only attempted dissuasion occurred after the charging document has been filed? Thus, Reynoza’s conclusion applies to only those cases in which the attempt at dissuasion occurred prior to 1/1/26.]

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986, 987, 989, 1013

Third Holding:

[Gary note: to demonstrate the significance of choice of words, I have set forth the original language that was interpreted in Reynoza and the amended version. The only difference is the change from “and” to “or.” I have added *** on both sides of the affected word to highlight it better. Goes to show sometimes it’s just all in the wrist.]

Authority:

PEN 136.1(b)(2) PRIOR TO AMENDMENT 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** and *** assisting in the prosecution thereof.”

PEN 136.1(b)(2) AS AMENDED EFFECTIVE 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** or *** assisting in the prosecution thereof.”

Amelioration, Jurisdiction, Sentencing

Case: 000264

Posted on by Gary McCurdy

Error and/or relief

On remand from a grant of habeas corpus reversing the conviction of attempt murder, it was error for the court to simply strike the punishment attached to that reversed count and fail to conduct a full resentencing. The trial court did not explicitly state it was recalling the defendant’s sentence under section 1172.1. However, the court’s actions at the 2023 hearing make clear that it did.

First Holding:

Courts generally lack jurisdiction to modify a defendant’s sentence once execution of the sentence has begun. Section 1172.1 provides an exception to that general rule. It states a trial court may, at any time upon the recommendation of the secretary of the CDCR or the district attorney, recall a defendant’s sentence and resentence the defendant in the same manner as if they had not previously been sentenced. When resentencing a defendant under section 1172.1, the trial court must consider postconviction factors and apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PC 1172.1

People v. Karaman (1992) 4 Cal.4th 335, 344 [Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced]

People v. King (2022) 77 Cal.App.5th 629, 636–637

Second Holding:

After announcing the People were conceding the defendant’s motion for recall and resentencing, the court granted the prosecutor’s motion to dismiss the gang allegation under section 1385. Assuming the defendant’s judgment of conviction was final at the start of the hearing—as the trial court believed it to be—the court had authority to grant the People’s motion only if it first recalled the defendant’s sentence. In other words, the fact that the trial court granted the People’s motion to dismiss shows it first recalled the defendant’s sentence under section 1172.1

Authority:

PEN 1170.1

PEN 1385

People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8

People v. Kim (2012) 212 Cal.App.4th 117, 123

People v. Sek (2022) 74 Cal.App.5th 657, 666–667 [Assembly Bill 333 applies retroactively only to cases that are not yet final]

Third Holding:

By recalling the defendant’s sentence, the trial court effectively vacated the entire judgment, not just the portion related to the gang allegation. Therefore, the court was required to resentence the defendant on each count and enhancement in the same manner as if he had not previously been sentenced. The court also was required to apply changes in the law since the original sentencing.

Authority:

PEN 1172.1

People v. Arias (2020) 52 Cal.App.5th 213, 219 [the recall of appellant’s sentence effectively vacated his original sentence and commitment]

People v. Rogers (2025) 108 Cal.App.5th 340, 360 [recall of a defendant’s sentence nullifies the original sentence]

People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [the “full sentencing rule” applies when a court recalls a sentence under former section 1170(d), a predecessor to section 1172.1]

Fourth Holding:

The court dismissed the gang allegation, but it did not orally pronounce a sentence on the murder conviction or the firearm enhancement, even by reference to the original sentence. Nor is there any indication that the court applied the changes to the law since the original sentencing.

Authority:

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement]

People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 532 [at sentencing, the court must orally pronounce the term of imprisonment]

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [trial court erred by failing to pronounce sentence on a count before staying its execution]

Fifth Holding:

The defendant did not forfeit his right to a full resentencing by failing to raise the issue in the trial court. Generally, a defendant must raise an issue in the trial court to preserve it on appeal. However, that general rule does not apply to an unauthorized sentence, which a defendant may challenge on appeal despite not objecting below. Here, the trial court recalled the defendant’s sentence, which effectively vacated his entire sentence. However, it never pronounced a new sentence on the murder conviction and firearm enhancement. The court’s failure to do so resulted in an unauthorized sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Arias (2020) 52 Cal.App.5th 213, 219

People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court committed unauthorized sentencing error by failing to pronounce a sentence on a count before ordering it stayed]

Sixth Holding:

Even if the forfeiture rule applied, we would exercise our discretion to consider the issue on the merits in order to forestall an inevitable ineffective assistance of counsel claim.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts have discretion to consider issues not preserved for review]

People v. Monroe (2022) 85 Cal.App.5th 393, 399–400 [declining to apply forfeiture rule where defendant failed to object to the lack of full resentencing under section 1172.75]

Seventh Holding:

Where, as here, the defendant did not receive a full resentencing to which he was entitled, the proper disposition is to remand for a full resentencing. Accordingly, we remand the case for the trial court to resentence the defendant in accordance with section 1172.1. In doing so, the court must consider postconviction factors and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. When resentencing the defendant on remand, the court may not reinstate the gang allegation it dismissed under section 1385.

Authority:

PEN 1172.1

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remanding case for resentencing where the defendant was entitled to, but did not receive, a full resentencing under section 1172.75]

People v. Saldana (2023) 97 Cal.App.5th 1270, 1278–1279 [same]

People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing]

Duty of the court, Jury trial, Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

Chapman v. California (1967) 386 U.S. 18

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. The court may impose a sentence exceeding the middle term only 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. the aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Lynch (2024) 16 Cal.5th 730, 742

Seventh Holding:

Such an error is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1090

Chapman v. California (1967) 386 U.S. 18