Monthly Archives: September 2026

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Salazar (2023) 15 Cal.5th 416, 431

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, 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.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081, fn. 5

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]

Duty of the court, Plea bargains, Sentencing

Case 001035

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s failure to appear for sentencing, the court declined to reduce the felony to a misdemeanor as contemplated by the plea agreement that was accompanied by a Cruz waiver. This was error, as the court did not find that the defendant wilfully failed to appear for sentencing.

First Holding:

In Cruz, our Supreme Court held a defendant who pleads guilty pursuant to a plea bargain that is subsequently disapproved by the trial court for defendant’s failure to appear is entitled to withdraw his or her plea. But if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained for term.

Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

People v. Jones (2026) 119 Cal.App.5th 261, 265

Second Holding:

Here, the trial court did not advise the defendant of his right to withdraw his plea if the court imposed a more severe sentence. Nor did the court advise him that his conviction would not be reduced to a misdemeanor if he willfully failed to appear for sentencing. But the defendant’s written plea form stated that he would not be allowed to withdraw his guilty plea and that his negotiated disposition would be cancelled if he willfully failed to appear at sentencing.

To deprive him of the benefit of his plea bargain, the trial court must find that the defendant willfully failed to appear at his sentencing hearing. A defendant acts willfully if he knows what he is doing and intends to do it. The term ‘willful’ requires only that the prohibited act occur intentionally.

Authority:

PEN 7(b)(1)

People v. Atkins (2001) 25 Cal.4th 76, 85–86

In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438

Third Holding:

It is the People’s burden to prove a defendant willfully failed to appear for sentencing after being released pursuant to a Cruz waiver. This burden requires the People to present admissible evidence.

The People concede they did not present sufficient evidence to show appellant willfully failed to appear for sentencing. In fact, they presented no evidence. The People relied on the prosecutor’s conclusion that there’s a willful failure to appear because the defendant is responsible for getting to court for sentencing.

Authority:

People v. Jones (2026) 119 Cal.App.5th 261, 265

Fourth Holding:

From our review of the record, it does not appear that the trial court found, explicitly or implicitly, that the defendant’s failure to appear was willful. We presume that a trial court understands and properly carries out its duties. But the trial court’s statements here suggest that it did not consider whether the defendant’s failure to appear was willful. On this record, we must conclude that the trial court imposed the greater term of a felony conviction exclusively on the fact of the defendant’s failure to appear for the hearing, without determining whether the failure to appear was willful.

The matter is remanded to the superior court so that it can give the parties the opportunity to present evidence and to make a finding of whether the defendat’s failure to appear at his sentencing hearing was willful.

Authority:

EVID 664

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Jones (2026) 119 Cal.App.5th 261, 266

Sentencing, Sixth Amendment, Standard of review

Case 001034

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial on the aggravating circumstances it used to impose upper term sentences.

First Holding:

In a bifurcated proceeding, the trial court found true the existence of aggravating factors under California Rules of Court, rule 4.421(b)(2) and (4). The court conducted a bench trial on these factors because, at the time, it was believed that they did not need to be tried to a jury. The trial court found that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous within the meaning of rule 4.421(b)(2). It also found defendant was on probation when the crimes at issue in this appeal were committed. (Rule 4.421(b)(4).

Based on Wiley, the trial court improperly determined facts beyond the mere existence of his prior conviction and its elements, and relied on its conclusions in choosing an upper term sentence.

Authority:

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

People v. Wright (2025) 113 Cal.App.5th 832, 847 [The error here was that the defendant was entitled to, but did not receive (or waive), trial by jury on the aggravating factor of whether he had suffered numerous convictions in the past]

Second Holding:

A defendant has a statutory and constitutional right to a jury trial on all aggravating facts, other than a prior conviction, that are relied upon to justify an upper term. In Wiley, our Supreme Court overruled its prior authority construing the prior conviction exception to include other related issues concerning a defendant’s criminal history or recidivism such as unsatisfactory performance on probation and the increasing seriousness of a defendant’s prior convictions.

The court held that 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1078, 1084, 1086

Third Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

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

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

Fourth Holding:

To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 840

Amelioration, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Vicarious liability

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) convicted of murder, attempted murder, or manslaughter; and

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. The court takes 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 so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

People v. Strong (2022) 13 Cal.5th 698, 708

Fourth Holding:

A denial at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. This is a purely legal conclusion, which we review de novo.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Bocanegra (2026) 122 Cal.App.5th 481

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

People v. Lopez (2025) 17 Cal.5th 388,

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]