Daily Archives: August 14, 2026

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review

Case: 000358

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to properly consider its discretion on whether to strike the prior serious felony conviction in light of the presence of one or more mitigating circumstances enumerated in section 1385(e), in the absence of a finding of danger to public safety.

First Holding:

Senate Bill No. 81, effective January 1, 2022, added subdivision (c) to section 1385. Section 1385(c) provides, “(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. (2) In exercising its discretion under [subdivision (c)], the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] are present.

Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

The mitigating circumstances identified in the subparagraphs include, among others, that multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. And they include that the application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

Second Holding:

Absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. This furtherance of justice inquiry requires a trial court’s ongoing exercise of discretion. Thus, notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

Third Holding:

In determining whether dismissing an enhancement would endanger public safety, the plain words of the statute do not support a trial court’s singular focus on whether the defendant currently poses a danger. Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal will impact the length of the defendant’s sentence. Thus, a currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect of release from prison until he is elderly.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225, 228

Fourth Holding:

We review a trial court’s decision not to strike a sentence enhancement under section 1385 for abuse of discretion. The abuse of discretion standard is highly deferential. When a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.

We presume that the trial court acted to achieve legitimate sentencing objectives. The burden is on the party challenging the sentencing decision to show that the court abused its discretion. We may not presume error from a silent record. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules. In addition as a general rule a trial court is presumed to have been aware of and followed the applicable law. Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. A trial court abuses its discretion by rendering a sentencing decision based on impermissible factors or on an incorrect legal standard. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Nakano (2023) 89 Cal.App.5th 623, 635 [an abuse of discretion occurs when the trial court applies the wrong legal standard]

People v. Flores (2020) 9 Cal.5th 371, 431

Fifth Holding:

When the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign great weight to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice. The term “great weight” did not create a presumption in favor of dismissal, but should be interpreted to mean that absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Without credible evidence to support findings on aggravating circumstances, judges could disregard mitigating factors without a proper basis for doing so. This would be incompatible with the great weight the Legislature has attached to the enumerated mitigating circumstances. Section 1385(c)(2)’s mandate to give great weight to enumerated mitigating circumstances requires a sentencing court to engage in a holistic balancing with special emphasis on the enumerated mitigating factors.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094

Sixth Holding:

On appeal, we presume that a judgment or order of the trial court is correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.

Authority:

People v. Giordano (2007) 42 Cal. 4th 644, 666

Seventh Holding:

The court did not explicitly conclude that dismissal of the enhancements would result in a danger to public safety. Indeed, the trial court did not discuss public safety in its findings, nor did it make any statements related to the possibility of the defendant committing further crimes if his sentence were to be reduced, and he were to be released early, following dismissal of the enhancements. when the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign “great weight” to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice.

Walker and Gonzalez had not been decided at the time of the trial court’s ruling, and that in making its findings, the trial court did not use the word “mitigating factors,” or specifically discuss the mitigating factors listed under section 1385(c). While we acknowledge that a silent record does not, on its own, reflect an abuse of discretion , we find it is not evident from the instant record and findings that the trial court would have still exercised its discretion not to dismiss the enhancement if it had the guidance provided in those cases. The trial court did not make any indication that the defendant would pose a danger to public safety if he were to be released early as a result of a reduced sentence.

Further, while the trial court’s final order cited the serious nature of the defendant’s offenses, as well as his criminal history. it is unclear if such findings reflected the trial court engaging in a holistic balancing with special emphasis on the enumerated mitigating factors as required under Walker. Under these circumstances, we conclude that remand for resentencing is required. In reaching our decision, we do not express any position on how the court should exercise its discretion under section 1385 regarding dismissal of the section 667(a) enhancement.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2023) 15 Cal.5th 416, 424 [noting that if the trial court is unaware of the scope of its informed discretion at the time of sentencing and fails to exercise it in making a sentencing decision, the appellate court must remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

People v. Walker (2024) 16 Cal.5th 1024, 1036

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

People v. Flores (2022) 73 Cal.App.5th 1032, 1039

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385

Abstracts and Minutes

Case: 000356

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment fails to reflect that the multiple-murder special‑circumstance allegation as to count 2 was vacated.

Holding:

The abstract of judgment must be corrected to reflect that the multiple-murder special‑circumstance allegation as to count 2 was vacated.

[Gary note: The court cited no authority for its order for correction. This opinion was a modification of the opinion I summarized as Case 000302, which was already being remanded for other reasons, including a direction to correct a different problem in the abstract of judgment. Though the court cited no additional authority for the modification for further correction, there are many cases it could have chosen from. I have set forth some of them below.]

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

Jury trial, Standard of review

Case: 000355

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it overruled defendant’s objection to the prosecutor’s use of a peremptory challenge to excuse a prospective Hispanic juror who reported negative experiences with law enforcement and the criminal justice system, where the prosecutor did not overcome the presumptive invalidity of the challenge by clear and convincing evidence.

First Holding:

Intentional discrimination is not the correct standard for determining whether the exercise of a peremptory challenge was improper. The court did not first require the prosecutor to overcome the presumptive invalidity of the challenge under the more demanding standard set forth in Code of Civil Procedure section 231.7(e). We may not impute to the trial court findings it did not make, but in this case, the record is devoid of any evidence that the prospective juror’s negative experiences with law enforcement and the criminal justice system bore on his inability to be fair and impartial. Under these circumstances, the prosecutor did not overcome the presumptive invalidity of the peremptory challenge, the trial court erred in overruling defendant’s objection, and section 231.7 compels reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7(e) and (j)

People v. Guzman (2025) 115 Cal.App.5th 464, 475

People v. Jimenez (2024) 99 Cal.App.5th 534, 540

Second Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.

Authority:

People v. Parker (2017) 2 Cal.5th 1184, 1210–1211

People v. Lenix (2008) 44 Cal.4th 602, 612

Third Holding:

The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. This is so because it is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection—actual or perceived—erode confidence in the adjudicative process, undermining the public’s trust in courts.

Authority:

Powers v. Ohio (1991) 499 U.S. 400, 412, 415

People v. Gutierrez (2017) 2 Cal.5th 1150, 1154

Miller-El v. Dretke (2005) 545 U.S. 231, 238

Fourth Holding:

Under the Batson/Wheeler test, the ultimate question for the trial court in ruling on an objection to a peremptory challenge is whether the party exercising the objection engaged in ‘purposeful discrimination. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. The Legislature intended that the new law be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges.

Authority:

CCP 231.7

People v. Guzman (2025) 115 Cal.App.5th 464, 475

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Ortiz (2023) 96 Cal.App.5th 768, 791–792

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Fifth Holding:

Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. If a party or the trial court objects to the use of a peremptory challenge, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.

If the reason for the exercise of the peremptory challenge is not presumptively invalid under section 231.7(e) or (g) (which set forth specific reasons that are presumptively invalid), the reason is to be evaluated in light of the totality of the circumstances to determine if there is a substantial likelihood that an objectively reasonable person, who is aware that unconscious bias and purposeful discrimination have resulted in the unfair exclusion of potential jurors in California, would view membership or perceived membership in any of the protected groups as a factor in the use of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection.

Authority:

CCP 231.7

People v. Barnes (2024) 107 Cal.App.5th 560, 577–578

Sixth Holding:

The trial court’s denial of an objection under section 231.7 is reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fines and fees, Juveniles, Retroactivity, Sentencing

Case: 000354

Posted on by Gary McCurdy

Error and/or relief

Because of legislation enacted since the disposition hearing, the $300 restitution fine is ordered stricken in this Welfare and Institutions Code section 602 juvenile proceeding. The statutory change regarding joint and severally liability, however, does not apply retroactively.

First Holding:

While this appeal was pending, the Legislature amended Welfare and Institutions Code section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now states that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602. Because the judgment is not final, the appellant is entitled to the ameliorative benefits of this amendment.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

The modification of section 730.6(b)(3), eliminating joint and several liability for juvenile offenders for direct restitution, is not punitive, but civil. Because it is not ameliorative of punishment, there is no presumption that it applies retroactively to nonfinal judgments. Enacted after the order imposing direct restitution jointly and severally with other parties, it has prospective effect only, and does not apply retroactively to this minor’s case.

Authority:

WIC 730.6(b)(3)

In re J.L. (2025) 117 Cal.App.5th 388