Monthly Archives: October 2026

Appellate Principles, Duty of the court, Plea bargains, Sentencing, Standard of review

Case 001099

Posted on by Gary McCurdy

Error and/or relief:

The court tentatively accepted the plea bargain and took the defendant’s plea, which place a limit on the sentence that could be imposed. Afterward, the client sought release from custody pending sentencing. The court agreed provided the defendant enter a “Cruz waiver,” under which the penalty for failure to appear at sentencing would be the removal of the limit on sentence contemplated by the plea agreement.

On sentencing following the defendant failure to appear and subsequent apprehension for sentencing, the court declined to follow the plea agreement and imposed a greater term, relying on the defendant’s post-plea Cruz waiver. This was error, and the matter is remanded to the trial court to give the defendant the opportunity to withdraw his plea.

First Holding:

Cruz provides a narrow exception where a trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term, in cases where a defendant willfully fails to appear for sentencing after having been advised of his rights under section 1192.5 and choosing to expressly waive them.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Second Holding:

When a guilty plea is tendered under section 1192.5, is accepted by the prosecuting attorney, and is approved by the court, the defendant cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

If the court approves of the plea, it must inform the defendant–prior to the making of the plea–that:

(1) its approval is not binding;

(2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in light of further consideration of the matter; and

(3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so.

Authority:

PEN 1192.5

Third Holding:

Appellate courts have recognized that, when there is a plea agreement between parties, and the plea is accepted by the court, that due process requires that both the defendant and the prosecution, abide by the terms of the plea agreement and that the punishment imposed not significantly exceed that which the parties agreed upon.

If the trial court disapproves of the negotiated disposition and seeks to modify it, the court must expressly tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept the modified terms.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 587–588, overruled on different grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183

People v. Woods (2017) 12 Cal.App.5th 623, 630 [the accused and the People are entitled to the benefit of the plea bargain]

People v. Mancheno (1982) 32 Cal.3d 855, 860 [due process applies not only to the procedure of accepting the plea, but also to the implementation of the bargain itself; a violation of the bargain raises a constitutional right to some remedy]

Fourth Holding:

A defendant who fails to appear without justification is subject to punishment upon conviction of the separate offense of a willful failure to appear in an action brought at the discretion of the prosecutor, not by peremptory judicial fiat. A defendant who fails to appear for sentencing does not lose the protections of section 1192.5.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1253

People v. Masloski (2001) 25 Cal.4th 1212, 1219

Fifth Holding:

A plea agreement may provide for an alternate, increased sentence if the defendant fails to appear for sentencing. However, to do so, a waiver of the defendant’s section 1192.5 rights must be obtained at the time of the court’s initial acceptance of the plea and must have occurred after an advisement under section 1192.5. If a court should fail to inform a defendant of his right to withdraw his guilty plea, even the defendant’s acceptance of the trial court’s terms will not be enough to make them a part of the plea bargain under section 1192.5.

In cases where a defendant has not been fully advised of his rights under section 1192.5 and has not expressly waived those rights, a trial court may still impose a longer term for failure to appear, so long as it does not seek to repudiate the plea bargain or to impose a sentence more onerous than that which defendant had agreed to accept as part of the bargain itself.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1250-1252

People v. Masloski (2001) 25 Cal.4th 1212, 1219

Sixth Holding:

In reviewing a challenge involving a plea bargain, we apply the standards of review applicable to contracts, generally. The interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.

Authority:

People v. Woods (2017) 12 Cal.App.5th 623, 631

Seventh Holding:

The process of plea bargaining–which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions–contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and the prosecution. Because the charging function is entrusted to the executive, the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of plea bargaining to agree to a disposition of the case over prosecutorial objection.

Authority:

People v. Clancey (2013) 56 Cal.4th 562, 569–570

Eighth Holding:

When a plea bargain is made the defendant is entitled to withdraw his plea if the negotiated bargain is incapable of actual fulfillment. Under the provisions of the authorizing statute, once the plea specifying the punishment is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.

Authority:

PEN 1102.5

People v. Morris (1979) 97 Cal.App.3d 358, 362

Ninth Holding:

The question when distinguishing between bargained-for provisions and judicially imposed terms will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought. A trial court must accept the negotiated plea or reject the bargain outright, but it cannot come up with its own number” with regard to sentencing.

Authority:

People v. Casillas (1997) 60 Cal.App.4th 445, 452

People v. Stamps (2020) 9 Cal.5th 685, 708

Tenth Holding:

The trial court erred in imposing a sentence greater than the sentence agreed upon in the plea bargain without first advising defendant of his section 1192.5 rights or affording him the opportunity to withdraw his plea. Here, whether the proffered plea was acceptable was within the exclusive discretion of the court.

However, the discretion to conditionally approve the negotiated plea bargain did not sanction the wholly unrelated and unbargained condition interjected by the court concerning an increased sentence of six years (the upper term, doubled) for defendant’s failure to appear at sentencing, as the increased sentence was imposed after the plea was accepted as a precondition to the court’s acceptance of the Cruz Waiver, without input from the prosecution, who objected to the waiver. The provision was therefore not a part of the plea agreement, not a valid Cruz waiver, and not enforceable. The Cruz waiver must be obtained at the time of the court’s initial acceptance of the plea and must have occurred after an advisement under section 1192.5.

Authority:

PEN 1192.5

People v. Orin (1975) 13 Cal.3d 937, 942–943

People v. Smith (1971) 22 Cal.App.3d 25, 30

People v. Masloski (2001) 25 Cal.4th 1212, 1217-1219

Eleventh Holding:

When a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain.

The same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance. And that is the situation in this case.

It is only when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance that the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1221-1222

People v. Morris (1979) 97 Cal.App.3d 358, 360-361

People v. Murray (1995) 32 Cal.App.4th 1539, 1540-1546

Twelfth Holding:

We reverse the judgment and remand the matter to allow defendant the opportunity to withdraw his plea. A defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances. The preferred remedy in that context is to permit a defendant to withdraw his plea and to restore the proceedings to the original status quo.

Authority:

People v. Calloway (1981) 29 Cal.3d 666, 671

Thirteenth Holding:

A certificate of probable cause is not required for the defendant to raise this on appeal following his guilty plea, because this is a postplea claim involving sentencing issues that do not challenge the validity of the plea. Indeed, he seeks to enforce his plea. A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea.

Authority:

People v. Cuevas (2008) 44 Cal.4th 374, 379

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Amelioration, Duty of the court, Sentencing

Case 001098

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.6, the court may have erred in reimposing criminal gang activity enhancement without examining whether it meets the requirements of section 186.22 as amended by AB 333.

The briefing submitted in conjunction with the ruling on the section 1172.6 proceedings does not adequately address whether the application of AB 333 is retroactive where section 1170.6 is invoked. The matter is remanded for resentencing and the parties may address the question of retroactivity of AB 333 in the superior court proceedings.

First Holding:

When the middle term is applied, appellate courts have held that the plain language and statutory context of section 1170(b) are clear the Legislature did not intend to impose evidentiary or proof requirements or restrictions on the imposition of a middle term sentence.

Authority:

People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1223

Second Holding:

AB 333 applies retroactively to nonfinal judgments. Application of AB 333 here essentially increases the probability defendant’s gang enhancement, imposed prior to the effective date of AB 333, is not supported by substantial evidence.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392

People v. Rojas (2023) 15 Cal.5th 561, 566–567 [Assembly Bill 333 narrowed the definitions of criminal street gang, pattern of criminal activity, and common benefit to a street gang]

Third Holding:

While section 1172.6 clearly provides the unusual remedy of challenging certain final convictions of murder, attempted murder, and manslaughter convictions, and clearly provides that the sentence on all counts (including those other than the murder, attempted murder, and manslaughter convictions) must be based on present law, it is not immediately clear where in the statute the Legislature provided the unusual remedy of challenging all of the petitioner’s other convictions.

The defendant does cite toTrent for the proposition that a defendant is entitled to retroactive application of ameliorative laws after a successful petition under section 1172.6. But the fact that AB 333 applies to nonfinal judgments is clear and undisputed. The question is whether these particular proceedings (i.e., sec. 1172.6) allow for challenges to the convictions (rather than challenges to the prior sentence made at resentencing) on counts or enhancements other than murder, attempted murder, or manslaughter.

Authority:

PEN 1172.6(d)(3)

People v. Trent (2025) 112 Cal.App.5th 251

Fourth Holding:

On remand, the trial court must award defendant 55 days of presentence conduct credits. The Attorney General concedes this issue and we accept the concession.

(Gary note: The court cited no authority for its directive to award presentence conduct credits, undoubtedly because the law is well settled. For your convenience, I have listed authority below that the court could have relied on.)

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

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Duty of the court, Sentencing

Case 001097

Posted on by Gary McCurdy

Error and/or relief

Following resentencing under section 1172.75, the court erred in not recalculating the defendant’s credit for time served.

Holding:

The trial court must calculate actual custody credits and include any such credits in the new amended abstract of judgment. Time served in custody shall be credited at resentencing when a judgment is subsequently declared invalid or is modified during the term of imprisonment. It is the duty of the court imposing the sentence to determine the total number of days to be credited.

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Garner (2016) 244 Cal.App.4th 1113, 1118 [a judgment must include a custody credit award that includes time spent in prison prior to the resentencing hearing leading to this appeal]

Duty of the court, Retroactivity, Sentencing, Sixth Amendment

Case 001096

Posted on by Gary McCurdy

Error and/or relief

The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.

The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.

First Holding:

Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.

In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

Second Holding:

When a defendant is being resentenced under section 1172.75, a resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

The court shall appoint counsel to represent a defendant at resentencing proceedings.

Authority:

PEN 1172.75(d)(2), (d)(3), (d)(5)

Third Holding:

The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673

Fourth Holding:

Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.

Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.

Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

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

Case 001095

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding at the prima facie stage that the defendant was ineligible for relief under section 1172.6 as an aider and abettor. The matter is remanded to the superior court with directions to issue an order to show cause and hold an evidentiary hearing on the petition.

First Holding:

In 2018, the Legislature enacted SB 1437, which amended provisions of the Penal Code pertaining to the felony-murder rule and the natural and probable consequences doctrine. Regarding the felony-murder rule, SB 1437 added section 189(e), which states that a participant in the perpetration or attempted perpetration of qualifying felonies 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).

As to the natural and probable consequences doctrine, section 188(a)(3) now provides that, except for felony-murder liability 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.

SB 1437 created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, by filing a petition for resentencing under what is now section 1172.6.

Pursuant to section 1172.6, a person previously convicted of murder or attempted murder may file a resentencing petition when all of the following conditions apply:

(1) the charging document filed against the petitioner permitted the prosecution to proceed under a theory of felony murder, or another theory of imputed malice;

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

(3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

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

Second Holding:

At the prima facie stage of a resentencing matter, the court evaluates both the petition and the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If, on the other hand, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause. Denial of a resentencing petition at the prima facie stage is reviewed de novo.

Authority:

PEN 1172.6

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

People v. Williams (2022) 86 Cal.App.5th 1244, 1251

People v. Lewis (2021) 11 Cal.5th 952, 97

Third Holding:

In this case, the dispositive issue under section 189 is whether the jury’s special circumstance findings (in the early 1990s, when the case was tried) conclusively establish the defendant’s liability for felony murder as a nonkiller aider and abettor. That is, we must determine whether the jury necessarily found that if the defendant was not the actual killer, he at least–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.

A finding of intent to kill made pursuant to a special-circumstance murder allegation is relevant and binding on the petitioner in a resentencing proceeding.

Importantly though, a resentencing petition puts at issue whether all elements of the murder offense are established by a valid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 462, 453-460 [addressing a gang-murder special circumstance]

People v. Strong (2022) 13 Cal.5th 698, 710

People v. Lopez (2026) 19 Cal.5th 639, 659

Fourth Holding:

The true findings as to the special circumstance allegations do not establish that the jury necessarily found his conduct met the actus reus required for aiding and abetting murder under section 189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only intended to kill, but also assisted the actual killer in the commission of murder in the first degree. Section 189(e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony.

While the special circumstances findings established that the defendant had the intent to kill and aided a cohort, the jury was not required to find that the defendant aided the actual killer in the act of killing.

Further, the instructions on the special circumstances referred to murder in the first degree, which may have led jurors to consider the instructions on first degree murder. Those instructions on murder contained no-longer-valid theories, which may have led the jury to believe the defendant aided or abetted in the commission of first degree murder without finding that he assisted in the lethal act itself.

True findings as to special circumstance allegations did not necessarily establish defendant was a direct aider and abettor even though jury received general instruction regarding aider and abettor liability.

Authority:

PEN 189(e)(2)

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

In re Lopez (2023) 14 Cal.5th 562, 587–588

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