Daily Archives: September 1, 2026

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Appellate Principles, Duty of counsel

Case 000799

Posted on by Gary McCurdy

Error and/or relief

The habeas corpus writ is granted. The matter is remanded for the court to hold an evidentiary hearing to determine various identified aspects of allegedly false testimony and its impact on the jury’s decision to convict the defendant.

First Holding:

The People argue that the claim is procedurally barred under the contemporaneous objection rule, and the false testimony was not material. Also, the People assert the claim is prohibited because the defendant failed to pursue them on direct appeal, citing Sakarias and Dixon.

Petitioner argues that the assertions of procedural default do not bar the presentation of the claims in these proceedings, citing Glossip), in which the United States Supreme Court held that it is the prosecution’s duty to correct false testimony when it appears.

Authority:

In re Sakarias (2005) 35 Cal.4th 140, 169

In re Dixon (1953) 41 Cal.2d 756, 759

Glossip v. Oklahoma (2025) 604 U.S. 226, 253, fn. 10 [even if the defense had made a conscious choice not to raise the issue of the false testimony, that would be irrelevant.]

Second Holding:

Petitioner alleged that the claim was being raised presently under the authority of SB 97, which went into effect on January 1, 2024, and allows for a writ of habeas corpus to be prosecuted on the additional bases of the discovery of new evidence that has not been previously presented and heard at trial and has been discovered after trial.

The People have not directly addressed this assertion, so we conclude that, in issuing the order to show cause, the Supreme Court found the petition was timely.

(Gary note: the Court of Appeal denied the defendant’s first petition for writ of habeas corpus, so he petitioned for review in the Supreme Court, which remanded the matter to the Court of Appeal to issue an order to show cause.)

Authority:

PEN 1473(b)(1)(A)

Third Holding:

In reviewing a habeas petition, the Supreme Court (or any other court considering such a petition) performs a gatekeeping function of determining whether it states a prima facie case for relief and whether the stated claims are procedurally barred. If the petition meets these requirements, the court must issue a writ of habeas corpus or order to show cause, receive a return and traverse, and may, if necessary, order an evidentiary hearing on the claims.

Authority:

In re Cook (2019) 7 Cal.5th 439, 457

Fourth Holding:

The Supreme Court’s direction to an appellate court to issue an order to show cause why the relief sought in the petition should not be granted signifies its preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 454-455

People v. Duvall (1995) 9 Cal. 4th 464, 475

Fifth Holding:

The issuance of the order to show cause creates a cause giving the People a right to reply to the petition by a return and to otherwise participate in the court’s decisionmaking process. It is through the return and the traverse that the issues are joined in a habeas corpus proceeding.

Once the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. If the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 455

People v. Romero (1994) 8 Cal.4th 728, 739-740

Sixth Holding:

It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it to go uncorrected when it appeared.

Authority:

Napue v. lllinois (1959) 360 U.S. 264, 269

People v. Carrasco (2014) 59 Cal.4th 924, 966-967

Seventh Holding:

If the defendant makes such a showing, a new trial is warranted so long as the false testimony may have had an effect on the outcome of the trial,—that is, if it in any reasonable likelihood could have affected the judgment of the jury. In effect, this materiality standard requires the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Evidence can be material even if it goes only to the credibility of the witness.

Authority:

Glossip v. Oklahoma (2025) 604 U.S. 226, 246

Napue v. lllinois (1959) 360 U.S. 264, 269

Eighth Holding:

The Court of Appeal is ill-suited to make factual determinations. For this reason, we cannot simply order a new trial, and, instead, must remand the matter to the superior court with directions to conduct an evidentiary hearing to (1) the basis on which the paramedic based his testimony that there were two gunshot wounds; (2) whether the prosecution possessed the autopsy report and the police report summarizing the findings of that report, and, if not, why; (3) whether the autopsy report was provided to petitioner’s trial counsel in discovery, and, if not, why this would not constitute a Brady violation; (4) why the false testimony of the paramedic was not timely corrected; (5) why Detectives [A] and [B] did not testify about the evidence collected at the scene and the results of the autopsy; and (6) why a new trial should not be ordered.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 901 [Ordinarily, an evidentiary hearing is the appropriate means of resolving factual disputes of this nature]

Brady v. Maryland (1963) 373 U.S. 83, 87

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000798

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, if the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

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

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

Third Holding:

We review the trial court’s denial of 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 when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

People v. Moine (2021) 62 Cal.App.5th 440, 449

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

People v. Moine (2021) 62 Cal.App.5th 440, 449

Abstracts and Minutes, Fines and fees, Sentencing

Case 000797

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment mistakenly reflects that the trial court imposed financial obligations for court operations and conviction assessments and the abstract erroneously indicates the restitution fines were not stayed. It must be corrected.

First Holding:

The trial court stated a compelling reason for staying an otherwise mandatory restitution fine: any income the defendant earned would be better directed toward paying the direct restitution to the victim that the court did order.

Authority:

People v. Mercer (1999) 70 Cal.App.4th 463, 467 [we draw all inferences in favor of the judgment]

Second Holding:

The abstract of judgment shall be corrected to reflect that the trial court stayed the section 1202.4, subdivision (b), restitution fines, and the financial obligations from the court operations and conviction assessments shall be struck. (Gary note: the court cited no authority for ordering the correction of the abstract of judgment, but there are many cases it could have relied on. I have set forth a few below for your convenience.)

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

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

Case 000796

Posted on by Gary McCurdy

Error and/or relief

The conviction of assault with a firearm is reversed for insufficient evidence.

First Holding:

Section 245(a)(2), criminalizes the commission of an assault upon the person of another with a firearm. Assault is defined by statute as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Authority:

PEN 245(a)(3)

PEN 240

Second Holding:

Assault is a general intent crime. It requires proof that the defendant willfully committed an act that by its nature will probably and directly result in injury to another. Further, the defendant must have been aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result.

Authority:

People v. Williams (2001) 26 Cal.4th 779, 782, 788

Third Holding:

The actus reus of assault is the present ability to commit a violent injury on the person of another. It is the action enabling[a defendant to inflict a present injury. The present ability element is satisfied when a defendant has attained the means and location to strike immediately. In this context, however, immediately does not mean instantaneously. It simply means that the defendant must have the ability to inflict injury on the present occasion even if the defendant is several steps away from actually inflicting injury.

Authority:

PEN 240

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1172

People v. Licas (2007) 41 Cal.4th 362, 370

Fourth Holding:

As a general rule, a defendant cannot commit assault with a firearm using an unloaded or inoperable weapon, unless the firearm is used as a club or bludgeon. The reason is straightforward: absent the means to fire the weapon, the defendant lacks the present ability to commit a violent injury on the person threatened, in the manner in which the injury is attempted to be committed.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3

People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [person pointing an unloaded gun at another has no present ability to commit a violent injury]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6

People v. Valdez (1985) 175 Cal.App.3d 103, 110–111, 112 [assault defendant with an unloaded gun lacks personal means to inflict injury]

People v. Wolcott (1983) 34 Cal.3d 92, 102

People v. Orr (1974) 43 Cal.App.3d 666, 672

People v. Sylva (1904) 143 Cal. 62, 64

People v. Lee Kong (1892) 95 Cal. 666, 669 [it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant]

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1173, fn. 11 [as the unloaded gun cases demonstrate, the defendant must have an actual, not merely apparent, ability to inflict injury]

Fifth Holding:

This rule, however, is not categorical. Consistent with Chance’s explanation that present ability requires only the ability to inflict injury on the present occasion, courts have recognized that an unloaded or inoperable firearm may support assault liability where the evidence establishes the defendant had the means to load and/or render it operable immediately.

Authority:

People v. Lattin (2024) 107 Cal.App.5th 596, 612, 620 [there is no brightline-rule requiring a loaded firearm]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

Sixth 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.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

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

Seventh Holding:

(Gary note: the court then outlined the evidence and concluded that it was insufficient to support this count. The defendant pulled the trigger but the gun was unloaded, and there was no evidence that he had the ability to reload it at the time of the offense. Thus, he had no present ability.)

Accordingly, the conviction on count 2 must be reversed for insufficient evidence, and double jeopardy bars retrial on that charge. The associated firearm enhancement (sec. 12022.5(a)) necessarily falls with the conviction. We vacate appellant’s sentence and remand the matter for resentencing.

Authority:

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Eighth Holding:

A full resentencing is appropriate when part of a sentence is stricken on review. This permits the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

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