Monthly Archives: October 2026

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

Case 001064

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).

First Holding:

SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 189(e)

Third Holding:

SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.

At the prima facie inquiry stage, 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. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should 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

Sixth Holding:

If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678, 681-686

Eighth Holding:

The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.

Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 683

Abstracts and Minutes, Duty of the court, Plea bargains, Sentencing

Case 001063

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term. As we are remanding for a full resentencing, the parties may address their issues in the trial court with the accuracy of the abstract of judgment.

First Holding:

Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause.

Courts have recognized two exceptions to this certificate requirement. A certificate is not required for: (1) issues involving a search and seizure, the validity of which was contested under section 1538.5, and (2) issues regarding proceedings held after the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Regarding this latter category, the the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 781-782, 785

Second Holding:

Where a defendant has agreed to a specified sentence in return for his or her plea, the defendant must obtain a certificate of probable cause to challenge the trial court’s imposition of that exact sentence on appeal.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 73, 78 [one who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment]

People v. Hester (2000) 22 Cal.4th 290, 295 [defendants are estopped from complaining of sentences to which they agreed]

Third Holding:

But where a defendant negotiates a plea term which provides for a maximum sentence, rather than a specified sentence, which necessarily contemplates further adversary proceedings in which the trial court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain, a certificate of probable cause is not required because, in substance, the defendant’s appeal of the selected sentence is not an attack upon the plea itself.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 785

Fourth Holding:

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term.

The defendant was convicted of burglary by taking the firearm and then of possessing the firearm after she took it. Under these circumstances, there is a course of conduct pursuant to one criminal objective—to possess the firearm by stealing it from the hotel room—and based on that defendant cannot be punished for both offenses under section 654.

Authority:

PEN 654

People v. Atencio (2012) 208 Cal.App.4th 1239, 1239 [sec. 654 precluded punishment for both grand theft of a firearm and being a felon in possession of the same firearm]

People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [recognizing § 654 has been held to preclude punishment for both burglary and theft where the burglary is based on an entry with intent to commit that theft]

Fifth Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. At its simplest, section 654 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Previously, trial courts were required to impose the longest possible term when section 654 applied. In January 2022, the statute was amended to provide courts with discretion to select either the greater or the lesser term and stay execution of the remaining term.

(Gary note, of marginal historical interest at best–noted also in my summary of case 000855: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed. Now you know.)

Authority:

PEN 654(a)

People v. Atencio (2012) 208 Cal.App.4th 1239, 1243

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Sixth Holding:

A sentence in violation of section 654 is an unauthorized sentence that generally may be corrected on appeal without an objection by the defendant in the trial court. This general rule, however, is subject to an exception. Where a defendant has pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The exception does not preclude defendant from raising section 654 on appeal where the plea does not have the defendant agreeing to a specific term.

Authority:

Cal. Rules of Court, rule 4.412(b) [By agreeing to a specified term in prison personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record]

People v. Hester (2000) 22 Cal.4th 290, 295

Seventh Holding:

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. Upon remand, the trial court may revisit all of its sentencing choices in formulating an aggregate term, and must impose a sentence for each of defendant’s convictions.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [as commonly applied, the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Eighth Holding:

Both parties agree that the abstract of judgment contains errors. They do not necessarily agree on the errors. Because we are remanding the case for a full resentencing hearing, which will necessitate a new abstract of judgment, we need not address the parties’ contentions regarding alleged errors in the current abstract. The parties may address any arguments regarding the correct amount of the fees and fines to the trial court during the resentencing hearing.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court’s oral pronouncement of judgment]

Juveniles, Sentencing

Case 001062

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in setting a maximum confinement term.

First Holding:

Welfare and Institutions Code section 726(d)(1) states that the juvenile court shall specify a maximum term of confinement if the minor is removed from the physical custody of the minor’s parent or guardian. Because the juvenile court did not remove the minor from parental custody, the juvenile court was not called upon to set a maximum term of confinement.

Authority:

WIC 726(d)(1)

In re G.C. (2020) 8 Cal.5th 1119, 1129

Second Holding:

Where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term.

Authority:

In re A.C. (2014) 224 Cal.App.4th 590, 592

Abstracts and Minutes, Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 001061

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously reflects a fine of $300 that was not imposed by the trial court. It must be corrected. Further, the matter must be remanded for the court to give the defendant the opportunity to challenge the imposition of any fine as constitutionally.

First Holding:

As a general rule, when there is a discrepancy between the oral pronouncement of judgment and the trial court’s records, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

Second Holding:

While this appeal was pending, the California Supreme Court addressed the means by which a criminal defendant may challenge various payments typically imposed at sentencing. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution.

As to fines, Kopp did not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, Kopp clarified that an excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines” under either the federal or state Constitutions.

As to ancillary costs, Kopp clarified that an equal protection analysis is appropriate and held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

As to restitution, Kopp reiterated that crime victims have a right to secure restitution from the persons convicted of the crimes causing the losses they suffer.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 23, fn. 17, 30

Third Holding:

Because the defendant did not have the benefit of Kopp’s reasoning and did not invoke the excessive fines clauses in the trial court, consistent with Kopp, we remand to give him 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, Sentencing

Case 001060

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of conduct credit.

Holding:

The trial court awarded 4 days of conduct credit, under the 15% limit set by section 2933.1 for defendants convicted of a violent felony within the meaning of section 667.5(c). However, 15% of the actual days in custody results in 5.85. Thus, the defendant should have received 5 days as conduct credit, not 4 days.

Authority:

PEN 2933.1

PEN 667.5(c)

People v. Guillen (1994) 25 Cal.App.4th 756, 764 [erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented]