Monthly Archives: August 2026

Duty of the court

Case 000765

Posted on by Gary McCurdy

Error and/or relief

This was a grant of a petition for habeas corpus to compel the trial court to set bail in this murder case. The appellate court granted the petition and directed the court to hold a new bail hearing consistent with the opinion.

First Holding:

Our state constitution entitles arrestees to bail unless one of a limited number of exceptions applies. The exception at issue here provides that a trial judge may deny bail when a defendant is charged with a felony offense involving acts of violence on another person when the facts are evident or the presumption great and the judge finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.

Authority:

Cal. Const., art. I, sec. 12

Yedinak v. Superior Court (2023) 92 Cal.App.5th 876, 884

In re Kowalczyk (2026) 19 Cal.5th 593, 630 [a court may order the pretrial detention of a noncapital defendant only in the circumstances specified in subdivisions (b) and (c) of section 12 of article I of the California Constitution]

Second Holding:

California Supreme Court caselaw imposed two more requirements for the so-called violent felony exception to apply. A trial judge must satisfy four legal requirements before issuing a pretrial detention order under section 12(b).

The judge must: (1) find there is sufficient evidence to sustain a guilty verdict against the arrestee on a qualifying felony; (2) find by clear and convincing evidence a substantial likelihood that the arrestee’s release would result in great bodily harm to others; (3) find by clear and convincing evidence that no less restrictive condition than detention can reasonably protect the interests in public or victim safety, and the arrestee’s appearance in court; and (4) set forth the reasons for their decision on the record and include them in the minute order.

Per our order to show cause, only the third and fourth Yedinak factors are at issue here. We hold the trial court did not adequately satisfy either factor.

Authority:

Yedinak v. Superior Court (2023) 92 Cal.App.5th 876, 886

In re White (2020) 9 Cal.5th 455

In re Humphrey (2021) 11 Cal.5th 135

Third Holding:

A court entering a pretrial detention order must set forth the reasons for its decision on the record and to include them in the court’s minutes, and the reasons supporting a denial of bail cannot be implied.”

Authority:

In re Harris (2021) 71 Cal.App.5th 1085, 1105, reversed in part on other grounds in In re Harris (2024) 16 Cal.5th 292

Sentencing, Standard of review

Case 000764

Posted on by Gary McCurdy

Error and/or relief

The court erred by not staying punishment for the second count under section 654. Also, the court must recalculate the credit for time served on resentencing. Further, the abstract of judgment erroneously reflects that the defendant stands convicted of a count that was reversed in the prior appeal.

(Gary note: This was mentioned only in a footnote, and there was no express direction for correction. But the court did order resentencing “consistent with this opinion,” which most likely implies a direction that the subsequent abstract of judgment accurately reflect the record.)

First Holding:

Section 654(a) states 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.

Authority:

PEN 654(a)

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.

We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.

When those facts are undisputed the application of section 654 raises a question of law we review de novo. However, we review the trial court’s factual findings for substantial evidence.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311–312

People v. Washington (2021) 61 Cal.App.5th 776, 795

Third Holding:

A review of the record indicates that there was but one act constituting the crime. Accordingly, the sentence on count 2 should have been stayed.

Authority:

PEN 654

Fourth Holding:

While we do not address the trial court’s failure to recalculate the defendant’s actual days of presentence custody credits because it was not raised by the defendant and we are remanding the matter for resentencing, we note that trial courts are required to do so.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Fifth Holding:

(Gary note: the court mentioned in a footnote that the abstract incorrectly lists a conviction of an offense that was reversed in a prior appeal. It made no express direction for correct of the abstract, but there is much authority that would have supported such an order, some of which I set forth 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

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000763

Posted on by Gary McCurdy

Error and/or relief

The court erred in declining to determine the defendant’s ability to pay fines and fees. Its stated basis was the probation office’s strong stance on rejecting the plea, based on the victim. After sentencing, the Supreme Court issued its decision in Kopp.

First Holding:

A defendant may challenge the imposition of a punitive fine under the United States and California Constitutions’ excessive fines provisions. The California Supreme Court The court used the “fine” term to refer to penalties provided by the Legislature to punish a criminal offense and included restitution fines and parole revocation restitution fines within that category. Because its decision was issued after the defendant was sentenced, the defendant should be given the opportunity to develop an excessive fines argument in the first instance on remand.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23, 30-31

Eighth Amendment to the United States Constitution [Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted]

Article I, section 17 of the California Constitution [Cruel or unusual punishment may not be inflicted or excessive fines imposed.]

Second Holding:

Because the trial court failed to consider the defendant’s ability to pay the the court operations and court facilities assessments despite his request, we must remand for such consideration. Because there is no rational basis for distinguishing criminal defendants from indigent civil litigants—who are afforded waivers for similar assessments—equal protection principles require the trial court to consider a defendant’s inability to pay before imposing these ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 14-15, 24-31

AppellateAdvisor Updates, Duty of the court, Probation Parole PRCS, Sentencing

Case 000762

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied the defendant’s motion to dismiss his conviction under section 1203.4 following his fulfillment of conditions of probation. The trial court concluded that the defendant was not eligible for relief as long as he had to register as a sex offender. The trial court denied the defendant’s petition for an erroneous reason without determining whether he fulfilled the conditions of probation for the entire probation period. Therefore, the order denying the petition is reversed, and the trial court is directed to make that determination.

First Holding:

When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, the defendant is entitled to have his conviction set aside and the case dismissed.

Authority:

PEN 1203.4(a)(1)

Second Holding:

This statutory provision is clear. If the defendant fulfilled the conditions of probation for the entire period of probation, the trial court shall allow the defendant to withdraw his guilty plea and shall thereupon dismiss the accusations or information. Dismissal in this circumstance is mandatory.

Authority:

People v. Daffeh (2024) 104 Cal.App.5th 790, 796

People v. Tran (2015) 242 Cal.App.4th 877, 892, fn. 6 [under section 1203.4, if the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief]

Third Holding:

A person who has suffered a conviction specified in section 290 is required to register as a sex offender, notwithstanding dismissal of such conviction pursuant to 1203.4. But the duty to register as a sex offender does not make the person ineligible for relief under section 1203.4

Authority:

Doe v. Brown (2009) 177 Cal.App.4th 408, 423

People v. Chatman (2018) 4 Cal.5th 277, 287

People v. Hamdon (2014) 225 Cal.App.4th 1065, 1071, fn. 3 [Section 290.007 expressly precludes relief from the sex offender registration requirement for persons whose convictions are dismissed pursuant to section 1203.4]

People v. Guillen (2013) 218 Cal.App.4th 975, 996 [same]

Fourth Holding:

If the defendant has not fulfilled the conditions of probation for the entire period of probation or been discharged prior to the termination of the probation period, the court still has discretion to grant relief in the interests of justice.

Authority:

People v. Guillen (2013) 218 Cal.App.4th 975, 991

Abstracts and Minutes, Amelioration, Appellate Principles

Case 000761

Posted on by Gary McCurdy

Error and/or relief

Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.

First Holding:

The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.

Authority:

People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]

People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]

Second Holding:

Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.

Authority:

PEN 1172.1

Third Holding:

If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.

Authority:

People v. Roy (2025) 110 Cal.App.5th 991, 998

People v. Hodge (2024) 107 Cal.App.5th 985, 996

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

Fourth Holding:

Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]

People v. Magana (2021) 63 Cal.App.5th 1120, 1125

People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]