Monthly Archives: August 2026

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Second, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts 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 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Racial Justice Act, Standard of review

Case 000609

Posted on by Gary McCurdy

Error and/or relief

The trial court applied improper legal standards in denying the defendant’s renewed new trial motion under the Racial Justice Act (RJA) and his request for RJA discovery.

First Holding:

In enacting Penal Code section 745, effective 1/1/2021, the Legislature sought to eliminate racial bias from California’s criminal justice system, declaring that racism—whether intentional or implicit—at any stage of a criminal case undermines fairness and constitutes a miscarriage of justice under the state Constitution. The statute is designed not to punish bias but to remedy its impact on defendants and the judicial process, ensuring that race plays no role in obtaining convictions or imposing sentences and rejecting the premise that racial disparities in the system are unavoidable. The following year, the Legislature amended subdivision (j) to provide the RJA applies to all cases where the judgment is not final.

Authority:

PEN 745

Second Holding:

The RJA identifies four categories of conduct, any one of which, if proved, is sufficient to establish a violation of Penal Code section 745, subdivision (a). In the renewed motion, the defendant relied on section 745(a)(1) and (2), which permit a defendant to establish a RJA violation by a preponderance of the evidence where:

(1) The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin; or

(2) During the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

(Paragraph (2) does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.)

Section 745 defines racially discriminatory language.

Authority:

PEN 745

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147

Third Holding:

A defendant alleging an RJA violation must first make a prima facie showing in the trial court—i.e., present facts that, if true, demonstrate a substantial likelihood of a violation. This standard falls between a mere possibility and a preponderance of the evidence. At this stage, the court must accept the defendant’s factual allegations as true, including expert and statistical evidence, unless they are conclusory, unsupported, or contradicted by the record.

The trial court may not weigh competing evidence or make credibility determinations, except in the rare circumstances where the record irrefutably establishes the allegations are false. If the trial court determines a defendant has made a prima facie showing, it must conduct an evidentiary hearing where it may consider evidence and arguments submitted by the People, make credibility determinations, and weigh the evidence.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22-23, 25

Fourth Holding:

We review de novo the trial court’s legal conclusion that appellants failed to make a prima facie showing.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 650

Fifth Holding:

The trial court concluded that the defendant failed to make a prima facie showing. The court did not find the defendant’s testimony conclusory, irrelevant, or unsupported; rather, it discounted the testimony as uncorroborated and not credible. This was error. At the prima facie stage, the defendant was not required to prove the truth of his account; he was required only to show that, if true, the facts alleged would establish a violation.

The court further erred by proceeding with a prejudice analysis—reasoning that, even if the jury heard the introduction of the rap lyrics, the verdicts would not have changed and no miscarriage of justice occurred. But prejudice is not part of the prima facie inquiry. The question is solely whether the defendant satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation. Applying de novo review, we conclude that the defendant met his minimal burden to allege facts that, if true, establish more than a mere possibility of an RJA violation.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 656

Sixth Holding:

The court erred in denying the defendant’s motion for RJA discovery. He provided some data in support of his motion. The showing required to establish a plausible factual foundation for discovery under the RJA is minimal. At the request for discovery stage a court need not determine whether a violation under Penal Code section 745(a) may ultimately be established or ruled out. The dispositive question is whether a defendant demonstrated a plausible factual foundation for any potential RJA violation sufficient to show good cause.

Authority:

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244

Young v. Superior Court (2022) 79 Cal.App.5th 138

Seventh Holding:

We review the trial court’s discovery order for abuse of discretion, because management of discovery lies within the sound discretion of the trial court. The RJA was designed to facilitate the exposure and evaluation of potential racial bias, not to erect insurmountable barriers at the discovery stage. By requiring more than a plausible factual showing and prematurely invoking additional discovery constraints, the trial court applied a framework that unduly restricted access to potentially probative evidence. Because the trial court’s ruling rested on erroneous legal premises, its denial of discovery constitutes an abuse of discretion.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156

Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence, Vicarious liability

Case 000608

Posted on by Gary McCurdy

Error and/or relief

The denial of the defendant’s motion for recall of sentence under section 1172.6 is reversed, and the court is directed to grant the petition. After examination of all the evidence, we conclude that there is insufficient evidence to support any theory today under which the defendant coould be convicted of murder.

First Holding:

The defendant was the assigned getaway driver who was not present in the building where the robbery took place. A bystander was killed by the police during the confrontation between the other defendants and the police. The defendant entered a plea bargain in which he pleaded guilty to one count of felony murder. First degree implied malice murder is not a valid theory of conviction for an accomplice under the provocative act theory of murder; the accomplice must harbor express malice–the specific intent to kill–in order to be properly convicted of first degree murder under this theory.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 662

Second Holding:

The felony murder rule is not applicable where the killing was committed by a third party (e.g., police officer) who was not involved in the perpetration of the underlying felony. Because the felony murder rule is not applicable to these facts, the Banks/Clark inquiry as to the degree of defendant’s participation in the robbery and whether he displayed reckless indifference to human life during the course of the robbery is also inapplicable.

The provocative act murder doctrine arose as an alternative to felony-murder liability in circumstances where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. A provocative act murder case necessarily involves at least three people—the perpetrator of the underlying offense, an accomplice, and a victim of their crime.

Authority:

People v. Taylor (2025) 108 Cal.App.5th 849, 861, 866

People v. Clark (2016) 63 Cal.4th 522

People v. Banks (2015) 61 Cal.4th 788

People v. Antonelli (2025) 17 Cal.5th 719, 727

Third Holding:

SB 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 842-844

Fourth Holding:

This court will ignore the findings purportedly made by the trial court following the remand from the court in the earlier appeal, as they were outside the scope of the remittitur. The remittitur defines the scope of the trial court’s jurisdiction to act, and action which does not conform to the reviewing court’s directions is unauthorized and void. Trial courts are bound by the directions given by a reviewing court and have no authority to retry any other issue or to make any other findings; the court’s authority is limited wholly and solely to following the directions of the reviewing court.

Authority:

In re J.M. (2024) 103 Cal.App.5th 745, 755

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

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. The requisite malice may be express or implied. Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The defendant’s life-endangering act must proximately cause the victim’s death and to suffice for implied malice murder, the defendant’s act must involve a high degree of probability that it will result in death.

A relevant life-endangering act is one that proximately causes the victim’s death. It is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of the victim and without which the death would not occur.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988-989

People v. Cervantes (2016) 26 Cal.4th 860, 866

Sixth Holding:

Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990

Seventh Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

The direct aider and abettor must, therefore, act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death. Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim.

The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-992

People v. Collins (2025) 17 Cal.5th 293, 311

People v. Curiel (2023) 15 Cal.5th 433, 468

Eighth Holding:

We remand the case with directions to grant the petition and resentence defendant on the underlying offense of robbery.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137, fn. 3 [Granting the petition for resentencing, as opposed to ordering a new evidentiary hearing, may be the appropriate remedy where a petitioner successfully demonstrates no substantial evidence supports the denial of a section 1172.6 petition even considering erroneously admitted evidence at an evidentiary hearing]

Amelioration, Elements of crime, Sentencing

Case 000607

Posted on by Gary McCurdy

Error and/or relief

Because the prior strikes were incurred before the AB 333 amendments to criminal gang activity laws, and were dependent on gang activity findings made under the old law, the sentence is reversed and the matter is remanded for the court to determine whether those prior convictions would still be considered strikes under the current law on gang activity crimes.

Holding:

Effective January 1, 2022, AB 333 (2021–2022 Reg. Sess.) significantly modified the elements of gang-related offenses and enhancements. After appellant was sentenced, the California Supreme Court issued its opinion in Fletcher. In Fletcher, the high court held that when a defendant has a conviction under the prior version of section 186.22, whether that conviction still qualifies as a prior serious felony for purposes of the “Three Strikes” law and prior serious felony enhancements must be viewed under the current version of section 186.22. Because the sentence is vacated, the court shall conduct a full resentencing consistent with current law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

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

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000606

Posted on by Gary McCurdy

Error and/or relief

The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).

We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.

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 which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Oyler (2025) 17 Cal.5th 756, 820

People v. Jackson (2014) 58 Cal.4th 724, 749

Second Holding:

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.

Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.

Authority:

HSC 11366

People v. Franco (2009) 180 Cal.App.4th 713, 716, 718

People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2

People v. Green (1988) 200 Cal.App.3d 538, 544

People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492

Third Holding:

In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.

However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.

Authority:

People v. Franco (2009) 180 Cal.App.4th 713, 726

People v. Hawkins (2004) 124 Cal.App.4th 675, 683

People v. Shoals (1992) 8 Cal.App.4th 475, 491-492

People v. Cannon (1957) 148 Cal.App.2d 163, 168

Fourth Holding:

Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]

Authority:

People v. Dowl (2013) 57 Cal.4th 1079, 1086

Fifth Holding:

Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.

Authority:

HSC 11366

People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]

People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]

Sixth Holding:

A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 314

Cole v. Arkansas (1948) 333 U.S. 196, 202

People v. Kunkin (1973) 9 Cal.3d 245, 251

People v. Zemek (2023) 93 Cal.App.5th 313, 340

People v. Garcia (2014) 224 Cal.App.4th 519, 525

Seventh Holding:

Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.

In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.

Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.

Authority:

HSC 11361.8

HSC 11361.9

People v. Smit (2018) 24 Cal.App.5th 596, 599, 600

People v. Jessup (2020) 50 Cal.App.5th 83, 88

People v. Saelee (2018) 28 Cal.App.5th 744, 751

People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.

Eighth Holding:

Penal Code section 654 provides in part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Section 654 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.

A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.

Authority:

PEN 654

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737

People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Ninth Holding:

Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.

Authority:

HSC 11372.7(e)

Tenth Holding:

The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.

A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Scott (2012) 203 Cal.App.4th 1303, 1324