Daily Archives: August 20, 2026

Amelioration, Plea bargains, Sentencing

Case 000518

Posted on by Gary McCurdy

Error and/or relief

While defendant was on probation with an upper term suspended sentence, section 1170 was amended to preclude imposition of the upper term in the absence of aggravating factors found true beyond a reasonable doubt by a jury or by stipulation. On revocation, the court ordered execution of the upper term sentence. The sentence is reversed and the matter remanded for further proceedings at which the defendant may waive or invoke the requirements of section 1170(b). If he invokes its requirements, and the court is unable to impose the upper term in compliance with 1170, and the people or the court do not acquiesce to a term lower than the upper, the court must set aside the plea restore the parties to the status quo.

(Gary note: In this opinion, the court notes that there was a stipulated sentence as part of the plea agreement, and alludes to the Stamp rule that if the court and prosecutor are not happy with the resentencing, the plea should be set aside, restoring the parties to their status quo ante. But section 1171, effective 1/1/2025, may put the kibosh on Stamps and that line of reasoning. It was not discussed in this case. I have run across at least one unpublished opinion that seems to agree with me, which I have summarized as Case 000792, but it’s not due for posting yet. In that case, the district attorney apparently did not file a petition for review, but has asked the Supreme Court to grant review on its own motion.

(I’m not sure why the DA did not file a petition for review, because its request for the Supreme Court to grant review on its own motion was filed well before the deadline for filing a petition for review. (Any petition must be served and filed within 10 days after the Court of Appeal opinion is final, per rule 8.500(e)(1), which is normally 30 days after the opinion is filed. So while there are exceptions when there is a shorter period for finality, the deadline for filing a petition for review is 40 days after the date of the opinion. But even if no party files a petition for review within the time allowed, the Supreme Court can grant review on its own motion within a later deadline–within 30 days after the opinion in the lower court becomes final, per rule 8.512(c).) As of the writing of this summary, the Supreme Court has extended its deadline to October 21, 2026.

(Essentially, though, the court in Case 000792 said that Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing, and modification of the sentence does not require setting aside the plea bargain. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

(In the context of dealing with ameliorative provisions (including but not limited to “sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75”), section 1171(c)(3) says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The appellate court in Case 000792 held that the trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement.)

First Holding:

SB 567 amended section 1170 to limit the trial court’s ability to impose the upper term by making the middle term the presumptive prison term unless specified circumstances exist. When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in section 1170(b)(2). 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.

Authority:

PEN 1170(b)

Second Holding:

The only question before us is an issue currently pending before the California Supreme Court: whether a defendant whose sentence was imposed pursuant to a stipulated plea agreement may seek relief under Senate Bill No. 567. This is an issue that has split the Courts of Appeal, including divisions within this court.

[Gary note:  The Mitchell case cited by the Court of Appeal as shown in Authority as on review was decided In May 2026, People v. Mitchell (2026) 19 Cal.5th 729.  The Supreme Court remanded the case to the Court of Appeal (which recently remanded it to the trial court) to allow the defendant to take advantage of the amelioration despite his stipulated sentence, but it followed its decision in Stamps that if the prosecution or the lower court is not happy with the modified judgment, the plea must be set aside and the parties restored to their status prior to the plea bargain.  

[But the Supreme Court’s Mitchell decision contains a footnote, which I lay out here:  “Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (sec.1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

[Section 1171 expressly applies to ameliorative statutes, and does not identify section 1170 as an ameliorative section, but it says its list of “such as” statutes is not a limitation to its application.  I suspect–and that’s ALL it is, just pure speculation–that the Supreme Court was not ready to deal with section 1171 so late in the Mitchell appeal, and would prefer to see it battled out in the superior courts and Courts of Appeal before it takes on the issue.  That way it would have the benefit of perhaps many different approaches before it has to reach the proper conclusion.]

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26, 2023, S278690 [same]

People v. Todd (2023) 88 Cal.App.5th 373, 376, review granted Apr. 26, 2023, S279154 [defendant entitled to remand]

People v. Fox (2023) 90 Cal.App.5th 826, 830 [same]

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1056, review granted Feb. 21, 2024, S283452 [same]

Third Holding:

We independently review issues of statutory construction. As ever in statutory interpretation, w]e begin with the text of the relevant provisions. If the text is unambiguous and provides a clear answer, we need go no further. If the language supports multiple readings, we may consult extrinsic sources, including but not limited to the legislative history and administrative interpretations of the language.

Authority:

People v. Fox (2023) 90 Cal.App.5th 826, 831 (review granted)

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057 (review granted) [Gary note: see my note in Second Holding]

Fourth Holding:

That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them. A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.

A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. These statutory provisions are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.

Authority:

PEN 1016.8

People v. Stamps (2020) 9 Cal.5th 685, 701

Fifth Holding:

The relevant question here is not whether the sentencing judge is bound by the parties’ stipulated sentence, but whether the defendant is entitled to the ameliorative effect of SB 567’s new sentencing provisions. The defendant is entitled to the benefit of the change in the law under section 1170. But because he agreed to the upper term in his plea bargain, if the court were to reduce his sentence to any lesser sentence, the People will have been denied the benefit of its bargain.

A limited remand is appropriate to allow the court to determine whether it may impose the upper term in compliance with the new provisions of section 1170. If it determines that it may, then the sentence of six years may be imposed. Otherwise, if the defendant declines to stipulate to factors in aggravation supporting the upper term, the plea bargain must be set aside and the parties restored to their status quo, unless the prosecution and the court are willing to accept the lower sentence.

Authority:

People v. Todd (2023) 88 Cal.App.5th 373, 380-382, review granted Apr. 26, 2023, S279154

People v. Stamps (2020) 9 Cal.5th 685, 707

Appellate Principles, Effective assistance of counsel, Evidence, Fifth Amendment, Sentencing

Case 000517

Posted on by Gary McCurdy

Error and/or relief

It was error to include in the restitution order reimbursement for expenses incurred by the victim that were not caused by the defendant’s criminal conduct.

First Holding:

The defendant concedes he forfeited his Fifth Amendment claim by failing to object during trial on this ground to the admission of the pretext call evidence, the prosecutor’s arguments and questions on his silence, and the adoptive admission jury instruction. We elect to address the issue in order to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to jury instruction forfeits appellate claim of error]

People v. Adanadus (2007) 157 Cal.App.4th 496, 512 [requiring timely objection to preserve prosecutorial misconduct claim]

People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [claim based on privilege against self-incrimination may be forfeited]

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Second Holding:

The police arranged a pretext call between the victim and the defendant, during which the defendant did not deny the victim’s accusations. That evidence was presented at trial as an adoptive admission. The defendant argued that it was a violation of his rights under the Fifth Amendment, because he had previously been advised by counsel to make no statements to the victim. The People’s emphasis on the presence or absence of government coercion fails to account for the rationale underlying adoptive admissions, which is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.

That inference is only justified where the person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.

But advice of counsel is one form of restraint that might bar a free response by a person accused of a crime and therefore may not give rise to an inference of acquiescence or guilty consciousness as an adoptive admission. An accused’s express invocation of the right to remain silent on the advice of counsel is precisely a circumstance that may lend itself to the inference that the accused’s silence in the face of accusations stems merely from the assertion of that right.

[Gary note on the rest of the story–the appellate court proceeded to conclude that under the actual facts of the case, it was not error to allow the evidence as an adoptive admission.  I have included this holding merely for its educational value, though it did not assist this defendant.]

Authority:

People v. Simmons (1946) 28 Cal.2d 699, 712, 715–716

People v. Riel (2000) 22 Cal.4th 1153, 1189

Third Holding:

A victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. The trial court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. The hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution, and no particular kind of proof evidence is required.

Authority:

PEN 1202.4

People v. Baker (2005) 126 Cal.App.4th 463, 470

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The restitution power conferred by section 1202.4 in cases where a criminal defendant is sentenced to prison is not as broad as the court’s power to order restitution as a condition of probation, which need only be reasonably related to the crime of which the defendant was convicted or to future criminality. The victim’s mother’s expense incurred for paying for the defendant’s trip to a foreign country was entirely unrelated to the defendant’s criminal conduct, as was the victim’s rideshare share expenses on the day of the crime. Those portions of the restitution order must be stricken.

Authority:

People v. Martinez (2017) 2 Cal.5th 1093, 1101

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

Case 000516

Posted on by Gary McCurdy

Error and/or relief

For section 136.1 (dissuasion of witness) to apply [prior to its amendment effective 1/1/26], the attempt at dissuading must be performed prior to the commencement of the parole revocation proceedings. There was insufficient evidence to prove that parole revocation proceedings had commenced after the alleged attempt to dissuage.

(GARY NOTE: Effective 1/1/2026, section 136.1 was amended to eliminate the ambiguity under which Reynoza concluded that section 136.1 applies only if the alleging document has not yet been filed. The original language (by the use of the word “and”) ambiguously implied that, to constitute a violation, the defendant had to attempt to dissuade not only the filing of the charges, but also assistance in the prosecution once filed.

(Under that interpretation, if the only attempt at dissuasion took place after charges were filed, then the evidence was not sufficient to show that there was an attempt to dissuade from the filing of the charges. In direct response to Reynoza, section 136.1 now has changed the “and” to an “or,” the effect of which makes section 136.1 applicable to attempted dissuasion occurring on or after 1/1/2026, whether the attempt at dissuasion took place before or after charges were filed. I have included this summary because there may still be some defendants whose alleged misconduct occurred prior to 1/1/26 and must be prosecuted under the law in effect at the time of the crime.)

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Powell (2018) 5 Cal.5th 921, 944

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Second Holding:

Under Reynoza, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2). In Reynoza, all evidence of the defendant’s dissuasive conduct occurred after the underlying charging document had been filed. Therefore, since there was no substantial evidence that the dissuasive conduct occurred before charges were filed, the court affirmed the Court of Appeal’s reversal of the conviction.

Authority:

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

Third Holding:

There is no substantial evidence that satisfies the required element that defendant’s dissuading conduct occurred before proceedings were initiated in order to support defendant’s section 136.1(b)(2) convictions. Absent substantial evidence to support the convictions, the judgment must be reversed. A reversal based on insufficient evidence shields defendant from retrial because it means that no rational factfinder could have voted to convict the defendant. As such, defendant cannot be retried on counts 2 and 3

Authority:

People v. Tripp (2007) 151 Cal.App.4th 951, 959

Tibbs v. Florida (1982) 457 U.S. 31, 41

[Gary Reminder:

[Reread what I wrote as a Gary note  in the Error and/or relief secrion above about the law having changed effective 1/1/26 for those whose crimes occurred on or after that date.  It demonstrates how critical it is for you to always check on exactly WHAT the language was for the crime on the date your client was alleged to have committed it.]
Sentencing, Sixth Amendment, Standard of review

Case 000515

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in sentencing him to the upper term when no aggravating circumstances were alleged in the information, he did not admit any aggravating circumstances, and no factfinder found any true beyond a reasonable doubt.

First Holding:

Under section 1170(b)(2), the court may impose the upper term only when aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or judge. That procedure was not followed here. A defendant, by entering into a plea agreement that includes the upper term as the maximum sentence, does not implicitly admit that his conduct could support that term. Specifically, while a plea agreement constitutes an admission to all the elements of the admitted offenses, it does not constitute an admission to any aggravating circumstance.

Authority:

PEN 1170(b)(2)

People v. French (2008) 43 Cal.4th 36, 48

People v. Hoffard (1995) 10 Cal.4th 1170, 1177

Second Holding:

Accordingly, the court here erred in sentencing the defendant to the upper term. Given the total absence of any admitted or proven aggravating circumstances, we cannot conclude this error was harmless. A remand for resentencing is thus required.

Authority:

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

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

People v. Buycks (2018) 5 Cal.5th 857, 893

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60