Monthly Archives: August 2026

Amelioration, Appellate Principles, Fines and fees, Sentencing

Case 000635

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider the recent decision in Kopp on the imposition of fines and fees, and also to conduct a full resentencing in light of this remand for resentencing.

First Holding:

Kopp clarified the standards applied when a defendant challenges the imposition of certain fines and fees on the grounds that they are unlawful because he cannot afford to pay them. We remand the matter to the trial court to apply those standards regarding its imposition of various fines and fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Second Holding:

Because his conviction is not final on direct review, the defendant may be entitled to the benefit of various intervening changes in the law, including AB 333 (gang allegations) and the Racial Justice Act. AB 333, for example, limits what predicate offenses the People can now use to prove a group is a criminal street gang under Penal Code section 186.22.

On remand, the defendant can ask the trial court to provide relief under relevant intervening ameliorative sentencing laws, including but not limited to SB 81, 483, 567, and 1393; AB 333 and 518, as well as any appropriate challenges under the Racial Justice Act. But this court need not decide which intervening laws apply retroactively and whether their application requires any retrial or change in sentence.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 448

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Buza (2018) 4 Cal.5th 658, 693 [courts abide by a cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more]

Amelioration, Sentencing

Case 000634

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied Penal Code section 1172.6 resentencing relief at the prima facie stage. We reverse the trial court’s order denying resentencing relief and direct the trial court to issue an order to show cause.

First Holding:

SB 1437, effective as of January 1, 2019, made ameliorative changes to our state’s homicide law. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. This means, for instance, that a defendant is no longer guilty of murder as an aider and abettor solely because the natural and probable consequences of that other crime included a confederate’s commission of murder.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

These ameliorative changes apply retroactively through the resentencing process set forth in section 1172.6. Those convicted of murder or attempted murder under certain imputed malice theories may seek resentencing. So may a person convicted of manslaughter who was charged with murder when three conditions apply. First, the charging document allowed the prosecution to proceed under a theory of murder in which malice is imputed to a person based solely on that person’s participation in a crime. Second, the petitioner accepted a manslaughter plea offer in lieu of a trial on such a murder charge. And third, the petitioner could not presently be convicted of murder because of the changes to homicide law that took effect in 2019.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

Upon receipt of a facially sufficient petition — along with briefing in opposition or support — the trial court holds a hearing to determine whether a petitioner has made a prima facie case for relief. If so, the court issues an order to show cause and then holds an evidentiary hearing to determine entitlement to relief. If not, the court denies the petition.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 559, 562

Fourth Holding:

We independently review a trial court’s conclusion that a petitioner failed to make a prima facie case for relief. The record of conviction informs the prima facie determination. And that record includes a preliminary hearing transcript preceding a guilty plea. A court, however, may not engage in factfinding, weigh the evidence, or make credibility determinations at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

People v. Lewis (2021) 11 Cal.5th 952, 971, 972

People v. Patton (2025) 17 Cal.5th 549, 559, 568

Fifth Holding:

A review of the preliminary hearing transcript in this case reveals that it possible the defendant could have been convicted at trial under a now-invalid theory. There was witness testimony that two unidentified men initiated the attack, which raises at least a triable issue as to whether the defendant was the actual killer, and if he was not, whether he knew of and intended to aid in the criminal purpose of the actual killer as required for direct aiding and abetting. Given this state of the record of conviction, the defendant’s guilty plea to voluntary manslaughter does not prove that he could still be convicted of murder under current law.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213

People v. Patton (2025) 17 Cal.5th 549, 567 [A dispute regarding the basis of a conviction might arise if, for instance, a petitioner points to specific facts that identify someone else as the direct perpetrator.]

Appellate Principles, Duty of the court, Sentencing, Standard of review

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Amelioration, Juveniles, Retroactivity, Sentencing

Case 000632

Posted on by Gary McCurdy

Error and/or relief

The trial court did not determine whether the defendant’s prior juvenile adjudication in 2013 qualifies as a strike under the current version of section 186.22(b). Further, the prior juvenile adjudication cannot serve as the basis for a prior serious felony enhancement. We remand the matter to permit retrial of the gang enhancement under the current section 186.22 and for a full resentencing following retrial or the People’s election not to pursue retrial.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206,

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

Second Holding:

Even if a defendant has suffered a conviction under the prior version of section 186.22, courts must look to current law, as amended in AB 333, to determine 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. The defendant’s prior conviction in this case could qualify as a strike offense only with the gang enhancement found true prior to AB 333. We must vacate the true finding on the strike prior and remand to permit the People to retry the gang enhancement under current law to determine whether the defendant’s prior conviction qualifies as a strike prior.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 587, 603-604, 607

Third Holding:

The defendant’s juvenile adjudications cannot be considered a prior serious felony conviction for purposes of the mandatory five-year enhancement in section 667(a).

Authority:

People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10

People v. West (1984) 154 Cal.App.3d 100, 110

Fourth Holding:

When part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

Appellate Principles, Discretion, Sentencing

Case 000631

Posted on by Gary McCurdy

Error and/or relief

The sentence for either the attempted murder or the domestic violence should have been stayed pursuant to section 654, because both convictions were based on the same act, namely, the defendant’s act of running over the victim with his SUV.

First Holding:

This matter had previously been remanded for the court to consider its discretion on the application of section 654 as to which count should be sentenced on and which should be stayed. The original judge had retired. The resentencing judge’s statements make clear that in determining whether to stay the sentence on count 1 or count 2, he was deferring to and believed himself to be bound by the sentencing choices already made by the original sentencing court. He did not exercise his own discretion to decide which sentence should be stayed under section 654. Rather, he expressed the belief that the original sentencing judge had already made the relevant determination.

That was error. The original sentencing judge declined to apply section 654 at all, so she never exercised her discretion to decide which sentence should be stayed under section 654. To date, no judge has exercised their discretion on that issue. Because the record does not clearly indicate which sentence the resentencing judge would have stayed had he exercised his discretion, the judge’s failure to exercise his discretion is not harmless.

(GARY note #1: The court did not readdress what section 654 does. As noted, this is the second appeal in the case. The unpublished opinion in the first appeal dealt exclusively with the application of section 654, and the court likely felt it was unnecessary to repeat itself in this second appeal, because its application was not the new question. Instead, it was the failure of the resentencing judge to act independently from the original judge’s views. Under section 654, a single act, or multiple acts during a course of action with a single intent and objective, may result in conviction of multiple crimes, but may be punished under only one of them. The court may choose which count to impose and execute sentence on, and must stay execution on the other count(s) to which section 654 applies. Imposition of a concurrent term is not an option.)

(GARY note #2: The court did not discuss the significance of a trial court’s failure to exercise discretion. But there is ample authority discussing the steps for an appellate court to deal with situations where the lower court did not recognize that it had discretion and it appears that there could have been a different outcome had the judge recognized it and exercised its discretion in an informed manner. I have set out some of the statements from some such cases below as Second Holding and Third Holding, but they were not cited in this opinion, likely because, as this court stated in the unpublished opinion, no judge had ever actually exercised the discretion required under section 654. Always keep in mind, however, that when I use the term “likely” in my notes, it is pure speculation on my part.)

Authority:

PEN 654

Second Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Third Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]