Monthly Archives: October 2026

Abstracts and Minutes

Case 001084

Posted on by Gary McCurdy

Error and/or relief

There are errors in the minute order and the abstract of judgment that must be corrected.

Holding:

The court’s sentencing minute order incorrectly states that the trial court imposed a term of 14 years to life for his conviction for shooting into an occupied vehicle, whereas the reporter’s transcript correctly reflects that the court imposed a 14-year determinate sentence stayed pursuant to section 654 for that conviction.

The defendant’s stayed determinate sentences for assault with a semiautomatic firearm and shooting into an occupied vehicle are incorrectly reflected on the abstract of judgment for defendant’s indeterminate prison term and should instead be listed only on the abstract of judgment for defendant’s determinate prison term.

These errors should be corrected by the trial court.

(Gary note: The court cited no authority for its order directing correction, but authority abounds. I have set forth below some cases the court could have cited.)

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 001083

Posted on by Gary McCurdy

Error and/or relief

There are errors in the abstract of judgment that must be corrected.

Holding:

The abstract of judgment includes an “x” in boxes 6(b) and 6(d), which appear to have been checked in an attempt to reflect the sentence of 25 years to life on the firearm enhancement imposed under section 12022.53(d). But boxes 6(b) and 6(d) are intended to reflect indeterminate sentences imposed on crimes, not enhancements, and the sentence for the firearm enhancement is reflected in the “Enhancements” section of the abstract of judgment.

The abstract of judgment reflects that a $1,000 restitution fine was imposed in “Case B.” The trial court imposed a $1,000 restitution fine under section 1202.4(b), which is reflected on the abstract of judgment, but there is no “Case B” here.

The abstract of judgment does not reflect that the trial court imposed a suspended $1,000 parole revocation fine.

The trial court is directed to correct these errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

Duty of counsel, Sixth Amendment

Case 001082

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not hold a hearing on the defendant’s motion to have his attorney replaced.

First Holding:

Through counsel, the defendant filed a timely notice of appeal in his Case A. About a month later, he filed in pro. per. a notice of appeal in his Case B. The sentencing hearing had encompassed both cases. The prosecution asserts that the appellate court lacks jurisdiction over the appeal in Case B because its notice of appeal was filed after the 60-day deadline.

The notice of appeal must be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. The liberal construction rule exists to implement the strong public policy favoring the hearing of appeals on the merits.

To be sure, a notice of appeal must identify the particular judgment or order being appealed. However, under the liberal construction rule, courts have held that once a notice of appeal is timely filed from one appealable order, a court can construe it as encompassing a separate, related appealable order as to which it is timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the respondent.

As in Jordan, we deem it appropriate, in the interests of justice, to construe the notice of appeal filed in Case A as sufficient to constitute a notice of appeal in both that case and Case B.

Authority:

Cal. Rules of Court, rule 8.304(a)(4)

D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361

K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 878, 882

In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9

Second Holding:

The defendant submitted a motion to replace counsel under Marsden, asserting various claims pertaining to the adequacy of his representation by counsel. The court marked the motion “Received But Not Filed.” The court never held a hearing on the motion.

The law governing a Marsden motion is well-settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.

Authority:

People v. Marsden (1970) 2 Cal.3d 118

People v. Jackson (2009) 45 Cal.4th 662, 682

Third Holding:

A proper and formal Marsden motion is not required—the defendant need only clearly indicate to the trial court in some manner that he or she is requesting the discharge and replacement of the appointed counsel.

Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. Failure to conduct such a hearing is legal error that compels reversal of the defendant’s conviction unless the record shows beyond a reasonable doubt that the error was harmless.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1178-1179

People v. Marsden (1970) 2 Cal.3d 118, 126

Fourth Holding:

When a trial court’s failure to hold a hearing is inadvertent and a defendant fails to press for a hearing, he can abandon his Marsden request. In this case, we conclude that the facts are closer to Armijo (which concluded the defendant did not abandon the motion by failing to press for a ruling) than Jones (which concluded the opposite).

There is nothing in the record suggesting the trial court’s failure to hold a hearing on the Marsden motion was anything other than an inadvertent omission. As in Armijo, the defendant may reasonably have concluded that his motion had been considered by the court and denied.

We cannot speculate on the basis of a silent record that the trial court, after listening to the defendant’s reasons, would decide the appointment of new counsel was unnecessary.

Authority:

People v. Jones (2012) 210 Cal.App.4th 355, 361

People v. Vera (2004) 122 Cal.App.4th 970, 982

Fifth Holding:

We therefore will conditionally to reverse the orders of probation in both superior court cases and remand to the trial court with the following directions:

(1) the court shall hold a hearing on the defendant’s Marsden motion concerning his representation by his attorney;

(2) if the court finds that the defendant has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and

(3) if newly appointed counsel makes no motions, any motions made are denied, or defendant’s Marsden motion is denied, the court shall reinstate the orders of probation.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 92–93

People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 and fn. 6

Equal protection, Fines and fees, Sentencing

Case 001081

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in staying the assessments imposed under Government Code section 70373 and section 1465.8, which require imposition of a $30 and $40 fee per felony conviction, respectively. Accordingly, we shall strike the court operations and court facilities assessments.

Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations or court facilities assessment pursuant to Government Code section 70373 and Penal section 1465.8.

Having found that the defendant had no ability to pay these assessments, the court should not have imposed and stayed them, but rather should have stricken them. No similar differences justify denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment]

Jury trial, Sixth Amendment

Case 001080

Posted on by Gary McCurdy

Error and/or relief

The court’s closure of the courtroom to the entire public during the testimony of at least two accomplice witnesses (who claimed fear of retaliation by the defendant’s fellow gang members for their testimony) violated the defendant’s constitutional right under the federal and state constitutions to a public trial.

First Holding:

Four requirements are necessary to justify exclusion of the entire public from a courtroom:

(1) the existence of an overriding interest that is likely to be prejudiced absent the closure;

(2) the closure is narrowly tailored, i.e., no broader than necessary to protect that interest;

(3) no reasonable alternatives to closing the proceeding are available; and

(4) the trial court must make findings adequate to support the closure.

Authority:

Waller v. Georgia, (1984) 467 U.S. 39, 48

Second Holding:

A partial closure of the courtroom requires only a substantial reason for the exclusion of certain spectators, and that the exclusion be narrowly tailored.

Authority:

People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. 1

Third Holding:

The United States Constitution and the California Constitution guarantee a criminal defendant the right to a public trial, including the right to have friends and relatives present during the proceedings.

The right to a public trial serves two important interests. It protects those who are accused of a crime by helping to ensure that the innocent are not unjustly convicted and that the guilty are given a fair trial. Second, there is a strong societal interest in public trials; they provide an opportunity for spectators to observe the judicial system, improve the quality of testimony, encourage witnesses to come forward with relevant testimony, and prompt judges, lawyers, witnesses, and jurors to perform their duties conscientiously.

Authority:

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, sec. 15;

In re Oliver (1948) 333 U.S. 257, 271-272, 272, fn. 29 [noting special concern for assuring attendance of a defendant’s family members and friends]

People v. Scott (2017) 10 Cal.App.5th 524, 530

Fourth Holding:

In general, there are two types of exclusions: a total closure where all spectators are directed to leave the courtroom, and a partial closure where some, but not all, spectators are asked to leave.

Authority:

People v. Esquibel (2008) 166 Cal.App.4th 539, 552

Fifth Holding:

While California statutes permit both exclusion and closure orders, rulings applying those statutes are still subject to the fundamental constitutional right to a public trial under the federal and California constitutions. We thus analyze the court’s Closure Order (excluding the entire public during the testimony of certain witnesses) using the factors the Supreme Court identified as relevant to balancing the important public interest in open courtrooms against any higher values or overriding interest.

Authority:

PEN 686.2

PEN 868,7

Waller v. Georgia, (1984) 467 U.S. 39, 45

Sixth Holding:

Protecting trial witnesses from threats, harassment, or physical harm is an overriding interest and deserving of protection. Substantial evidence supports the trial court’s factual determination that one of the witnesses felt intimidated by the presence of individuals in the courtroom on the second day of his testimony.

(Gary note: The court went on to compare the conclusions of the trial court with the remaining requirements of Waller, and determined that the initial partial exclusion order by the trial court–excluding only certain named individuals–was likely reasonable under Waller. The additional information the trial court received about the defendant’s purported involvement in securing the presence of those spectators did not add anything to the analysis of the threat as to warrant closure to the entire public. The appellate court’s analysis under Waller is fact specific and not particularly informative in the context of these summaries of unpublished opinions.)

Authority:

NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223

Seventh Holding:

It has been a longstanding aspect of criminal law that exclusion of witnesses does not violate a defendant’s right to a public trial, even if the witnesses are the defendant’s close relations.

Authority:

EVID 777 [the trial court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses]

People v. Sprague (1879) 53 Cal. 491, 493 [The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination]

United States v. Ricker (8th Cir. 2020) 983 F.3d 987, 994 [rejecting the defendant’s Sixth Amendment argument after the defendant’s father was excluded from the courtroom as a potential witness but was not called; explaining that the Supreme Court has said that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged., but that entitlement is not absolute, and does not necessarily prohibit the sequestration of the defendant’s friends or relatives who may be called as witnesses.]