Monthly Archives: July 2026

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The meaning of a statute is a question of law that we review de novo.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Discretion, Duty of the court

Case: 000174

Posted on by Gary McCurdy

Error and/or relief

After reviewing the petition and the parties’ briefing, we conclude that, at a pretrial hearing in May 2024, the court erred in denying petitioner’s request for a bail review hearing after petitioner showed changed circumstances entitling him to such a review. Therefore, we grant the petition and direct the trial court to hold a new bail review hearing. The court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion.

First Holding:

Under section 1289, after a defendant has been admitted to bail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. Such good cause must be founded on changed circumstances relating to the defendant or the proceedings.

Authority:

PEN 1289

In re Alberto (2002) 102 Cal.App.4th 421, 430

Second Holding:

If the court properly determines nonfinancial conditions are insufficient to protect the state’s interests, but that imposing a money bail condition (alone or in combination with nonfinancial conditions) would adequately protect the public and the victims and ensure the arrestee’s presence in court, the court must consider the individual arrestee’s ability to pay and set bail at a level the arrestee can reasonably afford. If money bail set at a level the defendant can reasonably afford is not sufficient to protect the state’s compelling interests, then the trial court’s only option is to order pretrial detention, assuming the evidentiary record is sufficient to support the findings necessary to justify such an order.

Authority:

In re Brown (2022) 76 Cal.App.5th 296

In re Humphrey (2021) 11 Cal.5th 135

Third Holding:

The appellate court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion. The Kowalczyk court had disagreed with the Brown court’s earlier conclusion that a pretrial detention order is the only option when a bail amount the defendant can afford is insufficient to protect the public and ensure the defendant’s presence in court. The Kowalczyk court concluded that under Humphrey, if a court makes the findings necessary to support a detention, the court may set bail in an amount higher than a defendant can afford.

Authority:

In re Kowalczyk (2022) 85 Cal.App.5th 667

Amelioration, Sentencing

Case: 000173

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from an order finding her ineligible for resentencing under Penal Code section 1172.75. The trial court found her ineligible because the prior prison term enhancement had been stayed and not executed. We reverse with instructions that the trial court conduct further proceedings under that section.

First Holding:

The defendant is not requesting resentencing under the Three Strikes Reform Act. She was not even eligible for the Three Strikes Reform Act process because her current felony is a serious felony, to which the Reform Act is inapplicable. She is requesting the trial court exercise its discretion under in the furtherance of justice under Romero to strike one of her prior strike offenses. Because she is not eligible for (and is not seeking relief under) the Three Strikes Reform Act, section 1172.75 does not unconstitutionally conflict with it.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 347, 363-364

People v. Superior Court (Romero) 13 Cal.4th 497

Second Holding:

A defendant is entitled to the provisions of section 1172.75 even when execution was stayed for the now-invalid enhancement for a prior prison term.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Third Holding:

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

People v. Espino (2026) ___ Cal.5th ___ (S286987)

Fourth Holding:

In 2020, the Legislature enacted section 1172.75, which limits the circumstances when section 667.5, subdivision (b) sentencing enhancements may be imposed. Someone serving a sentence that includes an enhancement that section 1172.75 now renders invalid is eligible for possible resentencing.

Authority:

PEN 1172.75

People v. Renteria (2023) 96 Cal.App.5th 1276, 1282

Fifth Holding:

Though inapplicable here because the defendant is ineligible for relief under the Three Strikes Reform Act, the Reform Act’s revised penalty provisions may be applied at a section 1172.25 resentencing if section 1170.126’s substantive requirements are satisfied.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing

Case: 000172

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing, the abstract of judgment must be amended to reflect the additional days of credit for time served since the original sentence was imposed.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence.

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Second Holding:

The abstract of judgment incorrectly reflects the trial court’s calculation of custody credits. The abstract of judgment must be amended to include an additional [more than 4,000 days] for the period the defendant remained in custody between his [after 2010] original sentencing and his [before 2025] resentencing.

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. The appellate court may direct the trial court to correct clerical errors in an abstract of judgment. I have set forth some of the authorities the court could have cited.]

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

Sentencing

Case: 000171

Posted on by Gary McCurdy

Error and/or relief

We agree that on the resentencing of the defendant, the court failed to award the proper number of custody credits.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. [Gary Note: though not expressly stated in the opinion, at resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence, per Buckhalter.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. Buckhalter (2001) 26 Cal.4th 20, 23