Daily Archives: September 3, 2026

Discretion, Juveniles, Standard of review

Case 000860

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s transfer order and remand for a new hearing and ruling on the district attorney’s transfer motion.

First Holding:

The ultimate question for the juvenile court in a transfer petition is whether a minor is amenable to rehabilitation before the juvenile court’s jurisdiction expires. To order a minor’s transfer to a court of criminal jurisdiction, the juvenile court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

Cal. Rules of Court, rule 5.770(a), (b)

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

In re E.P. (2023) 89 Cal.App.5th 409, 416

Second Holding:

In making that determination, the juvenile court must consider five specific criteria: (1) the degree of criminal sophistication exhibited by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) the minor’s previous delinquent history; (4) success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Welfare and Institutions Code section 707(a)(3) also sets forth a nonexhaustive list of relevant factors for the juvenile court to consider with respect to each of the five criteria.

Authority:

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

Third Holding:

The allegation that a minor committed a serious offense, including murder, does not automatically require a finding of unfitness. Rather, in evaluating this criterion, a juvenile court may rely on evidence that, while not justifying or excusing the crime, tends to lessen its magnitude.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 189

Fourth Holding:

A juvenile court can retain jurisdiction over a minor as described in section 602 for the offense of murder until he or she attains 25 years of age, or upon the expiration of a two-year period of control, whichever occurs later.

In determining whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, ‘the juvenile court shall give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature.

Expert witnesses may testify on the issue of the availability of treatment programs in the juvenile court system and the amenability of the minor to those programs.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 213

Fifth Holding:

A minor’s amenability to rehabilitation is the central and dispositive question in proceedings under section 707, and the juvenile court’s analysis of the section 707 criteria must be focused through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 161–162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288, superseded by statute on other grounds as stated in In re J.M. (2024) 103 Cal.App.5th 745, 751–753

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The lower court’s findings of fact are reviewed for substantial evidence, its conclusions of law de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

The court’s ultimate finding that the minor is not amenable to rehabilitation while under its jurisdiction is also reviewed for substantial evidence. In conducting substantial evidence review, we draw all reasonable inferences in support of the court’s findings.

Moreover, a trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. Thai (2023) 90 Cal.App.5th 427, 433

Seventh Holding:

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

The clear and convincing evidence standard requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160–161

Eighth Holding:

The court’s reliance on uncertainty born out of the district attorney’s limited proof about why the minor would not accept or respond to the available treatment that the probation department believed would prepare the minor for re-entry into the community resulted in an improper shift of the burden from the district attorney to show the minor’s unamenability to the minor to show his amenability to rehabilitation.

This shift amounts to an abuse of discretion based on the application of an incorrect legal standard. Given that the juvenile court improperly applied the burden of proof in deciding that the minor is not amenable to rehabilitation while under the court’s jurisdiction, we agree with the minor that the court’s order granting the transfer motion must be reversed and the matter remanded for a new transfer hearing.

Authority:

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 722 [holding there was an abuse of discretion where there was no evidence that demonstrated existing programs were unlikely to result in the minor’s rehabilitation, why they were unlikely to work in this case, or that they would take more than three years to accomplish the task of rehabilitating minor]

People v. Centeno (2014) 60 Cal.4th 659, 673 [The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own]

Amelioration, Duty of counsel, Effective assistance of counsel, Elements of crime, Retroactivity

Case 000859

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted on the basis of appellate ineffective assistance of counsel in a prior appeal. The matter is remanded to the trial court with directions to vacate petitioner’s gang convictions and enhancements, to determine whether the prosecution will elect retrial, to conduct a retrial if so elected, and to fully resentence petitioner.

First Holding:

The defendant was convicted of several crimes, including substantive crimes and enhancements related to criminal gang activity. While the matter was pending on appeal in an earlier appeal, AB 333 amended section 186.22.

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.

AB 333 requires that predicate offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.

In addition, the currently charged offense cannot be used as a predicate offense under the amendments. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada.

Authority:

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

People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

To establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant.

Authority:

People v. Lepere (2023) 91 Cal.App.5th 727, 738

Third Holding:

The prosecution’s expert witness testified that he could not conclude that certain conduct was for the benefit of the gang. The evidence adduced at trial was therefore insufficient to qualify the crime as a predicate offense under AB 333.

Because a criminal street gang was not established under the subsequent requirements of AB 333, the gang convictions and enhancements would have been vacated if properly challenged on direct appeal.

Appellate counsel’s failure to raise the issue was therefore prejudicial to petitioner. Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.

Authority:

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

Fifth Amendment, Standard of review

Case 000858

Posted on by Gary McCurdy

Error and/or relief

We hold that the officers’ un-Mirandized questioning of the defendant was a custodial interrogation and reverse the judgment.

First Holding:

When reviewing issues under Miranda, we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was custodial. Where, as here, an interview is recorded, the facts surrounding the admission are undisputed and subject to our independent review.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161

People v. Torres (2018) 25 Cal.App.5th 162, 172

Second Holding:

To give force to the Constitution’s Fifth Amendment protection against compelled self-incrimination, a custodial interrogation must be preceded by Miranda warnings and the suspect’s voluntary, knowing, and intelligent waiver of Miranda rights.

Persons in custody thus must be warned that they have the right to remain silent, any statement made may be used as evidence against them, and they have the right to an attorney.

For Miranda purposes, interrogation means express questioning or words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Authority:

Florida v. Powell (2010) 559 U.S. 50, 59

People v. Elizalde (2015) 61 Cal.4th 523, 530–531

Miranda v. Arizona (1966) 384 U.S. 436, 244

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Third Holding:

The protections provided by Miranda apply only to custodial interrogations. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Volunteered statements, for instance, that were not made in response to police questioning are not the product of an interrogation and thus not inadmissible under Miranda even when the statements were made while in custody.

Where a defendant seeks to exclude statements made in the absence of a Miranda advisement, they must therefore establish both that the police questioning was an interrogation and that it occurred while the individual was in custody.

Authority:

People v. Zapata (2026) 118 Cal.App.5th 529, 538

Rhode Island v. Innis (1980) 446 U.S. 291, 301

People v. Mickey (1991) 54 Cal.3d 612, 648

Fourth Holding:

A custodial interrogation occurs when a reasonable person in the defendant’s position would feel that their freedom has been deprived in any significant way; for example, a formal arrest or a restraint of movement of the degree associated with formal arrest.

When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood their situation. All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present.

Whether a person is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.

Authority:

California v. Beheler (1983) 463 U.S. 1121, 1125

People v. Caro (2019) 7 Cal.5th 463, 491

People v. Moore (2011) 51 Cal.4th 386, 395

People v. Torres (2018) 25 Cal.App.5th 162, 172

Fifth Holding:

When the court considers whether an individual was in custody during their questioning, it looks at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. The courts have articulated a number of non-exhaustive factors to consider when conducting this analysis.

The relevant factors include: (1) whether contact was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; (2) whether the express purpose of the interview was to question the person as a witness or a suspect; (3) location of the interview; (4) whether police informed the person they were under arrest or in custody; (5) whether they informed the person they were free to terminate the interview and leave at any time; (6) whether there were restrictions on the person’s freedom of movement during the interview; (7) length of the interrogation; (8) how many police officers participated; (9) whether they dominated and controlled the course of the interrogation; (10) whether they manifested a belief that the person was culpable and they had evidence to prove it; (11) whether the police were aggressive, confrontational, and/or accusatory; (12) whether the police used interrogation techniques to pressure the suspect; and 13) whether the person was arrested at the end of the interrogation.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162

Sixth Holding:

The circumstances are less likely to suggest to an individual that they are unable to leave or end the questioning when they voluntarily subject themselves to such an examination.

Authority:

People v. Potter (2021) 66 Cal.App.5th 528, 541 [holding that the defendant was not in custody when he voluntarily came to the police station for an interview]

People v. Torres (2018) 25 Cal.App.5th 162, 173 [defendant’s agreement to be voluntarily interviewed in unmarked police car weighed against a custodial finding]

Seventh Holding:

A custodial interrogation does not occur where an officer detains a suspect for investigation and limits questioning to the purpose of identification or obtaining sufficient information to confirm or dispel the officer’s suspicions that a crime has occurred.

Authority:

People v. Farnam (2002) 28 Cal.4th 107, 180

People v. Clair (1992) 2 Cal.4th 629, 679–680

Eighth Holding:

The mere fact that an individual is a suspect is not enough to foster a custodial environment; the officers’ suspicion must also be communicated to that person for it to factor into the custody determination.

The awareness of the person being questioned by an officer that the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom.

Authority:

People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163—1164

People v. Torres (2018) 25 Cal.App.5th 162, 176 [holding that officers’ expressed belief that the defendant was culpable and they had evidence to prove it weighed in favor of custody determination]

Ninth Holding:

An interview that takes place in public within view of any passersby reduces the ability of an unscrupulous officer to use illegitimate means to elicit incriminating responses and should lessen a suspect’s fear of abuse should they not cooperate.

Authority:

Berkemer v. McCarty (1984) 468 U.S. 420, 438

Tenth Holding:

The longer the period of questioning, the more likely it will be found to be coercive and custodial, although even one question may be enough in the proper circumstances.

Authority:

People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 12

Eleventh Holding:

If the court finds that the statement was admitted in violation of Miranda, the court must determine whether the error was harmless beyond a reasonable doubt and did not impact the jury’s guilty verdict, such that the jury would not have reached a different result had the trial court excluded the challenged statements.  

The court assesses whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21–22

People v. Caro (2019) 7 Cal.5th 463, 495

Chapman v. California (1967) 386 U.S. 18, 24

Twelfth Holding:

A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. On the record in this case, we cannot find that the admission of the defendant’s statements was harmless error.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296.

People v. Torres (2018) 25 Cal.App.5th 162, 181 [finding prejudice where there were no witnesses or physical evidence and defendant’s non-Mirandized statements was primary evidence]

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

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

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000856

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a hearing on the petition for resentencing under section 1172.75. Because the trial court did not orally pronounce sentence on defendant’s conviction, impose the mandatory parole revocation fine, or calculate credits for time served, we remand the matter for full resentencing. On remand, the trial court is directed to orally impose judgment; determine what the amount of the restitution fine would have been so it can impose, then stay, the parole revocation fine in a proper amount, and calculate credit for time served.

First Holding:

Our review of the record reveals the court did not orally pronounce judgment. Accordingly, we must remand the matter for a full resentencing. The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand, as is the failure to impose a parole revocation fine required by section 1202.45. Because an unauthorized sentence is a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal, we raise the issue even though neither party has addressed it.

Authority:

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

People v. Terrell (1999) 69 Cal.App.4th 1246, 1255

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

Because the trial court’s recall of defendant’s sentence pursuant to section 1172.75(c) vacated that sentence, the trial court was required to conduct a full resentencing. While the court struck defendant’s now-invalid section 667.5(b) enhancements and ruled on his Romero motion, it did not orally pronounce judgment on defendant for his conviction for possessing cocaine. Nor did it orally reimpose the restitution fine or parole revocation fine or calculate actual custody credits. Because the trial court’s failure to orally pronounce judgment resulted in an unauthorized sentence, we remand for a full resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 360-361

Third Holding:

While the term of imprisonment, parole revocation fine, and actual custody credits are nevertheless listed in the minute order and abstract of judgment, the oral pronouncement of judgment controls over both.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Fourth Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

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

Fifth Holding:

Add Section 1465.9 bars reimposition of the restitution fine upon defendant. Because the restitution fine was originally imposed on defendant more than 10 years ago, the fine is uncollectable and unenforceable by operation of law.
blurb here

Authority:

PEN 1465.9(d)

People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 332

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart sec. 1465.9’s 10-year clock], review granted on a different issue Mar. 11, 2026, S295038

Sixth Holding:

Although section 1465.9(d) imposed a 10-year limit on the enforcement and collection of the restitution fine, it did not provide relief with respect to the parole revocation fine. Under section 1202.45 and Kopp that fine remains mandatory and must be set in the same amount as the court would have set for defendant’s restitution fine even though the restitution fine itself may no longer be reimposed.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Seventh Holding:

Finally, at resentencing, the trial court is required to credit the defendant with all actual days he had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37