Monthly Archives: August 2026

Amelioration, Standard of review

Case 000750

Posted on by Gary McCurdy

Error and/or relief

The trial court erred because the record of his conviction does not establish his ineligibility for resentencing under section 1172.6 as a matter of law. Remanded for the court to hold an evidentiary hearing on the defendant’s petition.

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas. First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189, subdivision (e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

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

Second Holding:

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine, which makes an accomplice guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the natural and probable consequence of the crime the accomplice aided and abetted (i.e., the nontarget offense). Thus, under prior law, a defendant who aided and abetted an intended assault could be liable for murder, if the murder was the natural and probable consequence of the intended assault.

Authority:

People v. Curiel (2023)15 Cal.5th 433, 449

Third Holding:

SB 1437 also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to ask the trial court to vacate their conviction and resentence them. As relevant here, the statute provides that a person convicted of felony murder may file a petition to have his or her conviction vacated when: (1) the charges filed against the person allowed the prosecution to proceed on a theory of felony murder; (2) the person was convicted of murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of murder; and (3) the person could not presently be convicted of murder because of changes to section 189 made effective January 1, 2019.

Authority:

PEN 1172.6

People v. Das (2023) 96 Cal.App.5th 954, 959

Fourth Holding:

After briefing on a defendant’s petition, the trial court must hold a hearing and determine whether the petitioner has made out a prima facie case for relief. If the petition and record “establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty under a still-valid theory of murder. If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Curiel (2023)15 Cal.5th 433, 463

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Seventh Holding:

Contrary to the trial court’s finding, the bare record does not establish that the defendant was the actual killer. Section 12022.53(b) does not require personal use of a firearm causing death or great bodily injury. Rather, the enhancement only requires that the defendant personally uses a firearm in the commission of a felony. Our Supreme Court has held that the similar enhancement for personal use of a firearm in section 12022.5 does not in itself prove a defendant was the actual killer. In fact, section 12022.53(b) states that the firearm need not be operable or loaded for the enhancement to apply.

Accordingly, defendant’s admission to this enhancement cannot establish conclusively that he actually killed the murder victim. Also, the generic murder charge in the information did not limit the People to prosecuting defendant under any particular theory of murder because neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded.

And the defendant’s plea by itself establishes only that a murder with malice was committed and that he committed an act with the necessary intent to render him liable for that murder under then-existing law. The record contains no preliminary hearing transcript or plea hearing transcript from which we can discern any further information about the basis for defendant’s plea. Nor does the defendant’s plea to attempted murder necessarily establish that he had the intent to kill.

Authority:

People v. Jones (2003) 30 Cal.4th 1084, 1120

People v. Rivera (2021) 62 Cal.App.5th 217, 233, review granted June 9, 2021, S268405

People v. Eynon (2021) 68 Cal.App.5th 967, 977

People v. Patton (2025) 17 Cal.5th 549, 564 [unchallenged, relief-foreclosing facts within a preliminary hearing transcript may refute conclusory, checkbox allegations at prima facie stage]

People v. Ramos (2024) 103 Cal.App.5th 460, 463, 466 [defendant admitted during plea hearing that he aided/abetted, with the specific intent to kill, the attempt to kill the victim]

People v. Fisher (2023) 95 Cal.App.5th 1022, 1025, 1030 [defendant admitted during plea hearing that he shot and killed both murder victims and shot and injured the attempted murder victim]

People v. Montes (2021) 71 Cal.App.5th 1001, 1007 [because jury was instructed on natural and probable consequences doctrine, guilty verdict for attempted murder does not necessarily establish intent to kill]

Discretion, Standard of review

Case 000749

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion by basing its denial on findings not supported by substantial evidence and by exercising its discretion in a manner inconsistent with the principles and purpose of the statute.

(Gary’s note: The conclusion that the court abused its discretion relied extensively on facts reviewed by the Court of Appeal. These summaries are designed more to recite the various principles than to ferret out exactly how the principles achieved the result in the particular case. Sometimes it is obvious, but many times the outcome is very fact-dependent. Since these unpublished opinions cannot be cited as authority, it serves little purpose to recite the extensive details that led to the result in a particular case.)

First Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

People v. Moine (2021) 62 Cal.App.5th 440, 448

Second Holding:

Mental health diversion under section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. A defendant is eligible for mental health diversion if both of the following criteria are met: (1) defendant presents evidence he or she has been diagnosed with a mental disorder by a qualified mental health expert, identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSMD), within the last five years and (2) defendant’s mental disorder was a significant factor in the commission of the charged offense.

A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

Authority:

PEN 1001.36(b)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

As to suitability, each of the following criteria must be met: (1) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) the defendant consents to diversion and waives their right to a speedy trial; (3) the defendant agrees to comply with treatment as a condition of diversion; and (4) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

In determining whether the defendant poses an unreasonable risk of danger to public safety, the court may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Authority:

PEN 1001.36(c)

Fourth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. This residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134-135

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891 [court’s discretion must be informed by legal principles and purpose of statute]

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 [all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue]

Fifth Holding:

The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Appellate Principles, Duty of the court, Sentencing

Case 000748

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a two-year sentence on each of two felony counts, stayed one of those sentences under section 654, and pronounced sentences of concurrent time on the three misdemeanor counts. The failed, however, to pronounce the sentence for those three misdemeanors, and the case is remanded for it to do so.

First Holding:

Section 12 requires courts to pass sentence on the defendant and impose the punishment prescribed upon conviction for a crime. And the trial court generally must include all aspects of a judgment in its oral pronouncement of judgment.

Authority:

PEN 12

In re Sandel (1966) 64 Cal.2d 412, 415

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

Second Holding:

Therefore, a trial court must pronounce a sentence on every felony and misdemeanor conviction. The failure to do so results in an unauthorized sentence. When the mistake in failing to pronounce sentence on a count is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

Appellate Principles

Case 000747

Posted on by Gary McCurdy

Error and/or relief

On remand from the previous appeal, the trial court did not follow the instructions in the opinion to determine whether the defendant was guilty of implied malice second degree murder, and instead concentrated on whether the defendant had made a prima facie showing that he was eligible for relief under section 1172.6.

The matter must again be reversed and remanded for section 1172.6 (d) proceedings, including briefing and an evidentiary hearing wherein the People have the burden of proving beyond a reasonable doubt that defendant is still guilty of second degree implied malice murder.

First Holding:

The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. Where a reviewing court reverses a judgment with directions the trial court is bound by the directions given and has no authority to return any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. Any material variance from the directions is unauthorized and void.

Authority:

Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 701

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Ramirez (2019) 35 Cal.App.5th 55, 64

Second Holding:

We previously remanded this matter with directions for the trial court to conduct further proceedings consistent with [the prior] decision. That decision explained that the trial court had inappropriately applied the felony-murder rule to the case and stated that on remand, we highlight the propriety of formal briefing by the parties to provide both argument and evidence in support of their respective positions regarding defendant’s current guilt for second degree, implied malice murder.

These proceedings shall be consistent with the requirements of amended section 1172.6(d) in order to determine whether the People have met their burden to show beyond a reasonable doubt that defendant is guilty of murder under California law as amended by the changes to section 188 or 189 made effective January 1, 2019.

The trial court’s order denying the petition on a prima facie basis (sec. 1172.6(c)) materially differed from these instructions. Accordingly, the court’s order is void and must be reversed.

Authority:

People v. Ramirez (2019) 35 Cal.App.5th 55

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9