Monthly Archives: September 2026

Amelioration, Fines and fees, Sentencing

Case 000971

Posted on by Gary McCurdy

Error and/or relief

The restitution fines imposed more than 10 years prior to the resentencing hearing under section 1172.75 must be vacated.

Holding:

Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

AppellateAdvisor Updates

Case 000970

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly reflects a total additional term of 30 years for the gun enhancements instead of 20 years. The abstract of judgment must be corrected to reflect the trial court’s oral pronouncement.

On remand, we direct the trial court to amend the abstract of judgment to reflect an enhancement of 20 years under section 12022.53, subdivision (c), and a stayed term under section 12022.53(b).

Holding:

The trial court’s oral pronouncement of sentence is inconsistent with the judgment recorded: it imposed and stayed a 10-year term for the section 12022.53(b) enhancement, but the abstract of judgment imposed the term along with the 20-year term under section 12022.53(c).

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, we have the inherent power to correct such clerical error on appeal. We accordingly order that the abstract of judgment be corrected to conform with the sentence that the trial court actually imposed.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so and the facts underlying those circumstances 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 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Almendarez-Torrez v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466

Erlinger v. United States (2024) 602 U.S. 821

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Eighth Holding:

The Sixth Amendment is violated when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 000967

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his petition for relief under section 1172.6 of the Penal Code after an evidentiary hearing. The trial court’s finding that appellant was a direct aider and abettor for purposes of implied malice murder is not supported by substantial evidence.

We reverse the denial and remand this matter with directions to vacate appellant’s murder conviction and to resentence him in accordance with section 1172.6(e).

First Holding:

The Legislature enacted SB 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine.

The legislation bars murder convictions premised on any theory of imputed malice unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. S

pecifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to section 188 and 189. If a prima facie case is made—that is, if the petitioner is not ineligible as a matter of law—the court must issue an order to show cause and hold an evidentiary hearing.

At the evidentiary hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under the law as amended by the changes to sections 188 and 189.

If the prosecution does not meet this burden, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence is not greater than the initial sentence.

Where the murder was charged generically, and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Coley (2022) 77 Cal.App.5th 539, 543

People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 [What matters for purposes of subdivision (e)’s requirement that the underlying felony or target offense was not charged is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated]

Third Holding:

We review the trial court’s findings for substantial evidence.

Authority:

People v. Vargas (2022) 84 Cal.App.5th 943, 951

Fourth Holding:

Direct aiding and abetting remains a valid theory of murder liability after SB 1437. It 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 the 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.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 546

People v. Reyes (2023) 14 Cal.5th 981, 990–991

Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022

Fifth Holding:

The record here may support the finding that appellant had the requisite mens rea, but it does not show the actus reus required for direct aiding and abetting.

The co-defendant perpetrator shot the victim in the chest to free the defendant from the victim’s grasp.

It is too far of a stretch to consider the defendant’s circumstance of being physically restrained to be an act of his that aided the commission of the perpetrator’s fatal shooting, even if the defendant wanted the perpetrator to shoot the victim so he could be freed. Nothing in the record shows that the defendant told the perpetrator to shoot, or acted at all to facilitate the shooting—aside from his planning and participation in the underlying robbery.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712 [An aider and abettor must do something and have a certain mental state]

Sixth Holding:

Although direct aiding and abetting liability has been extended to cases where someone has a legal duty to act but fails to do so, we are unaware of any such case outside the context of parent-child or caregiver relationships.

Authority:

People v. Werntz (2023) 90 Cal.App.5th 1093, 1101

People v. Collins (2025) 17 Cal.5th 293, 312

People v. Zemek (2023) 93 Cal.App.5th 313, 339

Seventh Holding:

We do not see fit to remand for reconsideration of the defendant’s liability for felony murder because the trial court expressly rejected that possibility.

We instead remand for the trial court to vacate appellant’s murder conviction, and to redesignate the conviction as the underlying felony or felonies consistent with section 1172.6(e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 477 [declining to remand where it would be an idle act as shown by the trial court’s statement]

People v. Tyus (2026) 120 Cal.App.5th 798, 817 [reversing trial court’s decision to simply dismiss the case after vacating a manslaughter conviction from a plea; the trial court was required to redesignate the conviction as an underlying felony]