Monthly Archives: September 2026

Fines and fees, Sentencing

Case 000891

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.6, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, section 1465.9 was amended to state that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Here, the trial court imposed the $200 restitution fine more than 10 years before denying the defendant’s resentencing petition. As the People concede, that fine must therefore be vacated

Authority:

PEN 1465.9(d)

Sentencing, Sixth Amendment, Standard of review

Case 000890

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating factors that were not presented to a jury for proof beyond a reasonable doubt.

First Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

Rule 4.421 of the California Rules of Court provides a list of aggravating circumstances that must be stipulated to by the defendant or determined beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Notwithstanding section 1170(b)(1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2) and (3)

Rules of Court, rule 4.421

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

People v. Lynch (2024) 16 Cal.5th 730, 748, 759-760

Second Holding:

These provisions are subject to constitutional limitations under the Sixth Amendment. Specifically, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

For example, the Wiley court held that the defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085-1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Third Holding:

A defendant may waive his right to a jury trial on the aggravating factors, provided he does so personally and expressly. To be valid, the record must show the defendant’s waivers of the right to a jury are knowing, intelligent, and voluntary. In making such a determination, we examine the totality of the circumstances unique to each case.

In this case, we determine that the colloquy between the court and the defendant did not adequately inform him of what the aggravating factors were. Without a clear explanation that defendant was entitled to have a jury decide the truth of the specific aggravating factors that the court intended to use against him, or even notice of those aggravating factors, it cannot be said that he knowingly or intelligently waived his right to have a jury decide the truth of those specific aggravating factors, of which he was never made aware.

Authority:

People v. Collins (2001) 26 Cal.4th 297, 308

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. Daniels (2017) 3 Cal.5th 961, 990, 991 [a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent]

Fourth Holding:

Because defendant was deprived of a jury trial on the aggravating facts used to justify imposition of the upper term sentence, and there was no knowing or intelligent waiver, we must determine whether he was prejudiced by that error under the Chapman standard.

(Gary note: the court then reviewed the specific facts of the defendant’s criminal record and performance on probation or parole, details of which are case specific and would not add to this summary of an unpublished opinion that cannot be cited.)

Since we cannot conclude the lack of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify the upper term sentence, defendant is entitled to a reversal and remand for resentencing.

Authority:

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

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

People v. Lynch (2024) 16 Cal.5th 730, 775

Sentencing

Case 000889

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

A defendant is entitled to actual custody credit for ‘all days of custody’ in county jail and residential treatment facilities, including partial days. He is also entitled to conduct credits at a rate of 50 percent of actual time served.

But, if the defendant’s offense is statutorily defined as violent, section 2933.1(c) limits the presentence conduct credit to 15 percent of actual time served before sentencing.

The defendant was convicted of rape, a violent felony under section 667.5(c)(3). He is therefore entitled to a 15 percent presentence conduct credit. The trial court correctly awarded him 101 days of actual custody credit but only awarded him 14 days, rather than 15 days, of presentence conduct credit Accordingly, the abstract of judgment should be corrected to reflect one additional day of conduct credit.

Authority:

PEN 2900.5

PEN 4019

PEN 2933.1

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

People v. Nunez (2008) 167 Cal.App.4th 761, 764

Amelioration, Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 000888

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. There could be no rational tactical reason for defense counsel to concede that the defendant was ineligible.

First Holding:

In 2018, the Legislature amended the definition of felony murder in section 189 to restrict culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

At the same time, the Legislature added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine, to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437. I

f the petition makes a prima facie case for relief the court must hold an evidentiary hearing. At this hearing, the People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the law as it exists now, with the trial judge sitting as factfinder.

Authority:

PEN 189

PEN 1172.6

Second Holding:

When conducting a prima facie review, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If the record of conviction does not conclusively demonstrate that the defendant engaged in the requisite acts and had the requisite intent to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.

A preliminary hearing transcript is part of the record of conviction for these purposes, and courts may rely on them when reviewing petitions at the prima facie stage.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 975

People v. Barboza (2021) 68 Cal.App.5th 955, 965-966

People v. Patton (2025) 17 Cal.5th 549, 568 [there is no dispute that the record of conviction the parties may consult at the prima facie stage includes a preliminary hearing transcript preceding a guilty plea.]

Third Holding:

We review the trial court’s decision at the prima facie stage de novo. Reviewing de novo, we therefore find that the defendant established a prima facie case for relief, and the trial court should not have denied his petition for failing to do so.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

At the hearing, the defendant’s counsel stated that he was appointed to determine eligibility pursuant to 1172.6, and concluded the defendant was not eligible.

The defendant’s counsel cited cases involving defendants who made a prima facie showing for the proposition that a guilty plea is a judicial admission. That it’s an admission that he was, in fact, the killer, and therefore the defendant could not state a prima facie case for relief. Based on this, the court summarily denied the defndant’s petition.

Contrary to the court’s and counsel’s understanding below, a guilty plea (without more) is not an admission to any particular theory of guilt, and therefore cannot render a defendant ineligible for relief as a matter of law.

Moreover, the record of conviction, including the preliminary hearing transcript, does not contain any facts definitively foreclosing the defendant’s eligibility for relief. It is undisputed that the defendant was not the sole participant in either the burglary or murder of the victim.

Nor is there any clear evidence the defendant was the actual killer—indeed, the only evidence presented suggests that the co-defendant, not not the defendant, was the actual killer.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977 [By pleading guilty, the defendant admitted every element of the charged offense but the defendant did not admit facts supporting liability on any particular theory. Accordingly, the guilty plea did not constitute an admission that the defendant acted with malice.]

Fifth Holding:

The People assert the doctrine of invited error. The doctrine of invited error is an application of the estoppel principle and applies when a party invites the court or the jury to commit error.

Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. It is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.

However, for the doctrine to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In order to apply the doctrine, the record must show only that counsel made a conscious, deliberate tactical choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.

In other words, the invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law.  We conclude that on this record defense counsel’s decision to concede that the defendant is ineligible for relief was not a deliberate tactical choice.

Put simply, there was no possible tactical purpose for counsel’s decision to concede the matter. The defendant did not stand to receive any possible benefit from this concession, and therefore the decision to concede could only have been a genuine mistake.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1072

Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Cooper (1991) 53 Cal.3d 771, 83

People v. Duncan (1991) 53 Cal.3d 955, 970

People v. Wader (1993) 5 Cal.4th 610, 658

Sixth Holding:

Even if the invited error doctrine did apply, we would still reach the merits.

Because a deliberate tactical choice by counsel may be an incompetent one, courts have recognized that defendants barred from raising error under the invited error doctrine may instead claim they received ineffective assistance of counsel.

However, courts may also address the merits of an otherwise procedurally barred claim in order to avert any claim of inadequate assistance of counsel. T

hus, even if we concluded the defendant had invited the error he now complains of, we would exercise our discretion to reach the merits anyway to avoid the same result obtaining through an ineffective assistance of counsel claim.

We reverse the order denying the defendant’s section 1172.6 petition and remand. On remand, we direct the trial court to issue an order to show cause and to conduct further proceedings as required under section 1172.6.

Authority:

People v. Wader (1993) 5 Cal.4th 610,

People v. Yarbrough (2008) 169 Cal.App.4th 303, 310

Fines and fees, Sentencing

Case 000887

Posted on by Gary McCurdy

Error and/or relief

In this appeal from denial of resentencing under section 1172.75, we find that the court erred in concluding that he was not entitled to resentencing because the prior prison term enhancement had not been imposed.

First Holding:

In Rhodius, the court held that section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed.

If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Second Holding:

In Espino, the court expanded on Rhodius to hold that an enhancement is imposed for purposes of section 1172.75 where the sentencing court strikes the punishment for the enhancement but not the allegation itself. The court explained that imposing a sentence on a criminal defendant has legal effect, and a true finding on a prior prison term allegation is a part of the sentencing order, even when the associated punishment is stricken.

It follows that, as a matter of ordinary usage, an enhancement included in the sentence in a criminal case may be imposed even if the punishment for that enhancement is stricken.

Here, because the jury’s true finding was neither stricken nor dismissed, it remained imposed within the meaning of section 1172.75. The order denying the defendant’s motion for resentencing is reversed and the matter is remanded for a full resentencing under section 1172.75(d), as well as for proceedings on any motion for relief under section 1465.9(d), which states that restitution fines greater than 10 years old must be vacated.

Authority:

PEN 1172.75

PEN 1465.9(d)

People v. Espino (2026) 20 Cal.5th 57

People v. Fuentes (2016) 1 Cal.5th 218, 225, [striking the punishment for an enhancement merely serves to prohibit a certain purpose for which the allegation may be used; it does not operate to defeat the factual finding of the truth of the allegation]