Monthly Archives: October 2026

Abstracts and Minutes, Sentencing

Case 001079

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This is not a win, but I have included it as yet another instance where an abstract of judgment needed correction.) There were errors in the abstract of judgment that must be corrected.

First Holding:

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

Here, the trial court orally imposed a section 1202.5 fine, which included “the fines, fees, assessments, and surcharges in paragraph 4 on page 15 in the probation report.” The abstract of judgment, however, does not list the individual penalty assessments imposed by the court or their statutory bases, as required.

Accordingly, we will direct the trial court to correct the clerical error in the abstract of judgment to reflect a $10 fine under section 1202.5 and assessments in the following amounts: a $2.00 court surcharge (sec. 1465.7), a $5.00 state court facilities construction fee (Gov. Code, sec. 70372(a)), a $10.00 state penalty assessment (sec. 1464), a $1.00 DNA identification fund fee (Gov. Code, sec. 76104.6), a $4.00 DNA identification fund fee (Gov. Code, sec. 76104.7), and a $7.00 county penalty assessment (Gov. Code, sec. 76000).

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

Amelioration, Appellate Principles, Elements of crime, Plea bargains, Sentencing, Standard of review, Vicarious liability

Case 001078

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition under section 1172.6 at the prima facie stage, reasoning that the defendant was ineligible for relief because his plea occurred after the Legislature had eliminated liability for attempted murder under the natural and probable consequences doctrine. The trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Further, the minutes of the sentencing and the abstract of judgment each contain separate errors, which must be corrected on remand.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to seek resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing under section 1172.6. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. The law took effect on January 1, 2022.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when:

(1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine;

(2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and

(3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Fourth Holding:

After briefing on the petition, the trial court must hold a hearing to determine whether the petitioner has made out a prima facie case for relief. If the petition and record establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of attempted murder under section 188 as amended.

If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6(c), (d)

People v. Strong (2022) 13 Cal.5th 698, 708-709

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. 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.

The record of conviction necessarily informs the court’s inquiry. If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. A petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

But a trial court may not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Patton (2025) 17 Cal.5th 549, 557, 563

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Seventh Holding:

When the defendant changed his plea in 2021, before SB 775 took effect, the Courts of Appeal were divided on whether SB 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution.

It was not until SB 775 became effective in January 2022—several months after the defendant pleaded guilty—that the law expressly eliminated that possibility. It therefore would have been theoretically possible, at the time of the defendant’s prosecution, for the People to proceed against him under a natural and probable consequences theory of attempted murder.

Accordingly, the trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Authority:

People v. Alaybue (2020) 51 Cal.App.5th 207, 222

People v. Coley (2022) 77 Cal.App.5th 539, 544

Eighth Holding:

The sentencing minutes incorrectly reflect that the defendant’s attempted murders were willful, deliberate, and premeditated. We direct the trial court to amend the minutes to delete the “willful, deliberate, and premeditated” language.

The abstract of judgment incorrectly reflects the defendant’s sentence for the two attempted murders as 15 years and 4 years, respectively. If the attempted murders are not vacated on remand after hearing on the 1172.6 petition, the trial court shall amend the abstract of judgment to correctly state that his sentences for those two convictions are nine years and two years, four months, respectively.

(Gary note: The court did not cite authority for its orders to correct the minutes and the abstract of judgment, though there is much authority available. I have set forth a few that would support the court’s action.)

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

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review, Vicarious liability

Case 001077

Posted on by Gary McCurdy

Error and/or relief

Because there was a change in the statutory or case law, previous petitions under section 1172.6 are not a bar to a petition filed in reliance on the change in the law. It was error to summarily deny the petition.

First Holding:

Neither the express language of section 1172.6 nor the stated purpose of the legislation supports limiting access to relief under section 1172.6 where the subsequent petition rested on new legal authority that challenged the basis for the superior court’s summary denial of the previous petition. Enactment of SB 775 constituted new legal authority that entitled the defendant to file a new petition.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 946-947

Second Holding:

A defendant whose resentencing petition is denied before an order to show cause issues must demonstrate there is a reasonable probability that in the absence of the error the defendant would have obtained a more favorable result.

The record of conviction here fails to establish that defendant was ineligible for resentencing under section 1172.6 as a matter of law. Accordingly, it is apparent that but for the trial court’s error, defendant would have obtained a more favorable result.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 974

Third Holding:

The jury was instructed that an aider and abettor must have intended to commit, or aid and abet the felony of robbery (in this case) before or at the time that she caused the death. This was error. Under section 189(e)(2), a nonkiller must intend to kill and must assist the actual killer in the lethal act itself to be guilty of felony murder.

The instructions did not require the jury to make that finding. Thus, the record of conviction does not establish that the defendant is ineligible for relief as a matter of law and the trial court’s error in dismissing her petition for resentencing as an invalid, successive petition was not harmless. The order denying defendant’s petition for resentencing under section 1172.6 is reversed and the matter is remanded for further proceedings.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678, 693

Abstracts and Minutes, Sentencing

Case 001076

Posted on by Gary McCurdy

Error and/or relief

The trial court struck or stayed all fines at the sentencing hearing, including the restitution fines under section 1202.4 in both cases. But the abstract of judgment lists $300 fines under section 1202.4 in each case. The abstract of judgment must be corrected.

Holding:

The trial court’s oral pronouncement controls, so the abstract of judgment must be corrected.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15

Appellate Principles, Duty of the court, Elements of crime, Jury trial, Sentencing

Case 001075

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing and staying enhancements under section 12022.7(e) on counts 2, 3, and 4, and under section 12022.7(a) on count 2, because the jury did not find those allegations true.

Holding:

In their appellate briefing, the parties agree that the trial court erred in imposing and staying enhancements under section 12022.7, subdivision (e) on counts 2, 3, and 4, and under section 12022.7, subdivision (a) on count 2, because the jury did not find those allegations true. In keeping with the parties’ concessions, we strike these four enhancements.

Authority:

Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.]