Daily Archives: September 5, 2026

Fourth Amendment

Case 000920

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied the defendant’s motion to suppress evidence of the firearm — which was obtained after a warrantless search of his car — because no exception to the warrant requirement justified the search.

(Gary note: As with most search and seizure opinions, the facts are incredibly important to the result of the motion to suppress evidence. Because unpublished cases cannot be cited, they are literally worthless as cases to which you can compare your own client’s situation to demonstrate that your client should have the same result (suppression). So I am not setting forth the extensive set of facts that resulted in the reversal of the denial of the motion to suppress evidence. I have concentrated simply on the applicable law governing how courts are to assess the facts.)

First Holding:

The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures. Generally, law enforcement officers must obtain a warrant before conducting a search. A warrantless search or seizure is presumptively unreasonable unless it falls within a specific judicially recognized exception. Evidence obtained in violation of the Fourth Amendment is generally prohibited from being used in criminal trials.

Authority:

People v. Macabeo (2016) 1 Cal.5th 1206, 1212-1213

People v. Lopez (2019) 8 Cal.5th 353, 359

People v. Williams (1999) 20 Cal.4th 119, 125

People v. Marquez (2019) 31 Cal.App.5th 402, 411

Second Holding:

Defendants may move to suppress as evidence any tangible or intangible thing obtained as a result of a warrantless, unreasonable search or seizure. The prosecution bears the burden of establishing an exception applies.

When reviewing the denial of a suppression motion, we defer to the trial court’s factual findings if supported by substantial evidence — evidence that is reasonable, credible, and of solid value — but exercise our independent judgment to determine whether the search or seizure was reasonable under the Fourth Amendment.

Having engaged in that review, we conclude none of the People’s proffered exceptions to the warrant requirement apply here.

Authority:

PEN 1538.5(a)(1)(A)

People v. Gale (1973) 9 Cal.3d 788, 795

People v. Macabeo (2016) 1 Cal.5th 1206, 1212

People v. Ayon (2022) 80 Cal.App.5th 926, 937

Third Holding:

Searching the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden is permissible, but the officer must possess a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer’s belief that the suspect is dangerous and the suspect may gain immediate control of weapons.

The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

In determining whether the officer acted reasonably in such circumstances, due weight is given to specific reasonable inferences the officer is entitled to draw from the facts in light of his experience.

Authority:

Michigan v. Long (1983) 463 U.S. 1032, 1049-1050

Terry v. Ohio (1968) 392 U.S. 1, 27, 30–31

Fourth Holding:

The circumstances here, however, demonstrate the officer improperly acted on his inchoate and unparticularized suspicion or hunch to search the car. The officer’s belief that the defendant was armed and dangerous based primarily upon his carrying a crossbody bag was purely speculative.

Authority:

Terry v. Ohio (1968) 392 U.S. 1, 27,

People v. Pantoja (2022) 77 Cal.App.5th 483, 490 [officer’s testimony that defendant was armed and dangerous because he wore baggy clothing that could conceal a weapon even though it naturally had bulges was speculative and lacking in specific, articulable facts]

Fifth Holding:

That the gas station was in a high crime area does not elevate the carrying of a crossbody bag into a reasonable suspicion of criminality, as the People contend. Many citizens of this state are forced to live in areas that have high crime rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends.

Courts are reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual.

There was no testimony regarding any reason to believe the defendant was in a gang. The officer had never met the defendant and had no knowledge of his history.

The defendant’s presence in that area, standing alone, did not support a reasonable suspicion that he was armed and dangerous.

(Gary note: I have cited a few of the authorities relied on by the court, but there were other purported justifications presented by the prosecution, and the appellate court found simply that they did not justify the search. For a degree of brevity and readability, I have chosen to end the summary with the authorities shown below.)

Authority:

People v. Bower (1979) 24 Cal.3d 638, 645

In re Tony C. (1978) 21 Cal.3d 888, 897 [high crime area justification is so easily subject to abuse that this fact alone should not be deemed sufficient to support the intrusion], superseded by constitutional amendment on another point in In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.

King v. State of California (2015) 242 Cal.App.4th 265, 286

People v. Bush (2001) 88 Cal.App.4th 1048, 1052 [knowledge of person’s history of violence and possession of weapons provided reasonable suspicion suspect was armed and dangerous]

People v. Perrusquia (2007) 150 Cal.App.4th 228, 233

Amelioration, Plea bargains, Sentencing

Case 000919

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to consideration for resentencing under section 1172.75 even though she stipulated to the upper term in her original plea agreement. The matter is remanded.

Under Mitchell, the defendant is free to raise the issue of whether section 1171 precludes the setting aside of her plea if the court modifies the sentence to something less than the stipulated sentence.

First Holding:

The defendant is entitled to the retroactive benefit of section 1170(b)’s provisions notwithstanding her agreement to a specified term as part of a plea bargain.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Second Holding:

The proper remedy is to remand this case and permit the defendant to pursue relief under the new benefit that SB 567 confers. On remand, the defendant may either waive or invoke the requirements of section 1170(b). If she reaffirms her acceptance of the plea bargain and enters a new waiver of section 1170(b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties.

If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence. If the court also accepts the modification it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw her assent to the bargain. In that case the court shall set aside the plea, the matter shall proceed as to the defendant as if no plea had been entered, and the case shall be set for trial.

In keeping with footnote 9 of Mitchell, however, on our remand to the trial court, the defendant may present her argument that section 1171, enacted effective 1/1/25, provides that any modification of her sentence under ameliorative provisions shall not result in setting aside her plea.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Abstracts and Minutes

Case 000918

Posted on by Gary McCurdy

Error and/or relief

Following the invitation by the defendant to recall his sentence under section 1170.1, the trial court did recall his sentence and resentenced him to a considerably lesser number of years, but still more than 50 years to life. We affirm the trial court’s resentencing decision, with directions to make a correction to the record.

The trial court appropriately and correctly recalculated his credit for time served, but the abstract of judgment fails to reflect the recalculation. 

Holding:

We direct the trial court on remittitur to amend and forward to the Department of Corrections and Rehabilitation (CDCR) the abstract of judgment to reflect more than 10,000 days of actual credit and conduct credit that the trial court determined defendant was entitled to as of the resentencing date.

[Gary note: The court does not list any authority for ordering correction of the abstract of judgment, most likely because the authority is so obvious. But for your convenience, I have listed some of the cases that the court could have cited.]

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, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

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

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

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that four factors are relevant to determining whether a fine is unconstitutionally excessive:

(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and

(4) the defendant’s ability to pay.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

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

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

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

Appellate Principles, Discretion, Racial Justice Act, Standard of review

Case 000916

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a habeas corpus petition in the superior court, alleging that his 1992 convictions for first degree murder and robbery were obtained “on the basis of race, ethnicity, or national origin” in violation of the California Racial Justice Act of 2020 (RJA). He also requested, pursuant to the RJA, appointment of counsel and disclosure of evidence to support his claims.

The trial court denied the discovery request and the habeas petition, concluding that the defendant failed to establish a prima facie case for relief under the RJA.

The court erred. We grant the petition and issue a writ of mandate directing the trial court to vacate its order denying the habeas petition, appoint counsel for the defendant, and conduct a new hearing to reconsider his discovery request in a manner consistent with this opinion.

(Gary note: The court outlined in several paragraphs the specific allegations the defendant set forth in his petition that, if true, arguably demonstrated that his arrest and prosecution were affected by factors disallowed by the RJA. As these summaries are designed to highlight principles and the cases or statutes supporting the principles, I am not going to include the facts of the case on which the appellate court concluded that the defendant had demonstrated a sufficient showing to warrant appointment of counsel and discovery.)

First Holding:

Ordinarily, mandate does not lie to correct judicial errors by the superior court in habeas corpus proceedings.

However, where, as here, the trial court failed to perform its required duty to conduct an independent assessment of whether the petitioner was entitled to have counsel appointed under newly adopted procedures enacted by the Legislature, then mandate may be used to compel the performance of that duty.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46-47

Second Holding:

Several have concluded that writ review of the trial court’s discovery rulings in RJA cases is appropriate because such rulings involve novel legal issues of widespread interest.

The RJA is a recent legislation that has been amended multiple times since its inception, and although its command is simple, its implementation is somewhat complex.

We therefore agree with the court in Young that exercising our discretion to review discovery rulings under the RJA is appropriate to provide general guidelines for future cases.

(Gary note:  I find that last sentence regarding guidelines for future cases a bit amusing, because this is an unpublished opinion, and the only “future case” it will ever affect is THIS particular defendant’s instant case.  But hey.  Maybe the “to publish or not to publish” colloquy occurred after the opinion was written.)

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 53-54

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 238

Third Holding:

Because management of discovery lies within the sound discretion of the trial court, we review discovery rulings for abuse of discretion. We review the factual underpinnings of a discretionary determination for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

A discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.

Authority:

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

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 55

Fourth Holding:

Effective January 1, 2021, the Legislature enacted the RJA (AB 2542 (2019–2020 Reg. Sess.)) to eliminate racial bias from California’s criminal justice system; to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing; and to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.

To achieve these objectives, the RJA added and amended Penal Code sections to allow defendants whose judgments are final or who are no longer in custody, respectively, to seek relief for RJA violations.

Authority:

PEN 745

PEN 1473

PEN 1473.7

In re Lynex (2026) 118 Cal.App.5th 756, 767

People v. Wilson (2024) 16 Cal.5th 874, 945

Fifth Holding:

The RJA provides that the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. The statute further sets forth four categories of conduct, any of which, if proved, is enough to establish a violation of the RJA.

Authority:

PEN 745(a)

Sixth Holding:

The court shall appoint counsel if the petitioner cannot afford counsel and the petition alleges facts that would establish a violation of section 745(a). In AB 1071, the Legislature reaffirmed that this threshold is extremely low. (Stats. 2025, ch. 721, sec. 1, subd. (b).)

AB 1071 states that courts have imposed on RJA petitioners higher burdens than the Legislature intended to meet the threshold to secure counsel and denied counsel to litigants raising RJA claims far more than they have appointed counsel.

The new legislation clarifies that the court shall appoint counsel to all indigent postconviction litigants who allege a plausible claim of an RJA violation, which does not require a prima facie showing and should be construed as a minimal pleading requirement.

Authority:

PEN 1473(e)(5)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33

Seventh Holding:

The RJA defines a prima facie showing to mean that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of the RJA occurred.

By contrast, to be entitled to counsel in RJA habeas proceedings, petitioners are required only to allege facts that would establish a violation of the RJA.

Authority:

PEN 745(h)(2)

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 45

Eighth Holding:

Regarding the showing necessary for discovery, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case.

The burden at the discovery stage is a good cause showing, the burden at the prima facie stage is higher, and the burden at the evidentiary hearing is higher still—proof of an RJA violation by a preponderance of the evidence.

As the least onerous of the statute’s burdens of proof, the plausible justification standard should not be difficult to meet. Where the defendant makes a showing of plausible justification that there was or could have been a violation of the RJA, thus triggering access to all relevant evidence concerning a potential violation of section 745(a), it will likely be an abuse of discretion to totally foreclose discovery.

Authority:

PEN 745(c), (d), and (e)

Young v. Superior Court (2022) 79 Cal.App.5th 138, 159, 168-169

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 61

Ninth Holding:

At the discovery stage, as at the prima facie stage, the court should not weigh the evidence or make credibility determinations, except in the rare case where the record irrefutably establishes that the allegations are false.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23–24

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 246, fn. 8 [A trial court’s review of supporting evidence at the discovery stage, which imposes even a lower burden of proof on defendants than the prima facie stage, must be more lenient]

Tenth Holding:

Although the defendant has offered sufficient evidence to demonstrate a plausible factual foundation for discovery under the RJA, a question remains regarding the appropriate scope of his request.

When determining if a petitioner is entitled to the requested discovery, the court must still consider and balance the so-called Alhambra factors:

(1) whether the material requested is adequately described;

(2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources);

(3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest;

(4) whether the defendant has acted in a timely manner;

(5) whether the time required to produce the requested information will necessitate an unreasonable delay of the defendant’s trial; and

(6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved.

Authority:

City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134

Eleventh Holding:

In addition, the court must consider whether the requests for disclosure may give rise to relevant evidence, meaning that the court must determine whether they are reasonably calculated to lead to discovery of admissible evidence probative of a section 745(a) violation.

The trial courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery.

Authority:

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 248

Williams v. Superior Court (2017) 3 Cal.5th 531, 559