Author Archives: Gary McCurdy

Appellate Principles, Sentencing

Case 000564

Posted on by Gary McCurdy

Error and/or relief

This is another case where no relief was granted, but it contains important information on how an otherwise nonappealable order might become appealable.

The defendant filed a motion for resentencing under section 1172.1. While a defendant may invite the court under that section to resentence him, he has no right to make a motion under that section. (It can be triggered by the custodial officials or the prosecutors or on the court’s own motion, however.)

Had the court simply declined to respond to the defendant’s “motion,” or simply denied it outright, the defendant would have no right to appeal. The court, however, considered the motion and denied it on its merits. This created a substantial right for the defendant and permitted appellate review. We conclude the trial court evaluated and denied defendant’s petition on the merits, thus affecting defendant’s substantial rights, and thus the denial is an appealable order.

First Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Second Holding:

Section 1172.1(a)(1), effective January 1, 2024, provides that the trial court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Section 1172.1(c) expressly states, however, that a defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond. Thus, a defendant who chooses to file an unauthorized request for resentencing has no right to a ruling.

Authority:

PEN 1172.1

People v. Roy (2025) 110 Cal.App.5th 991, 998,

Third Holding:

The second sentence in section 1172.1(c) means that a defendant does not have a substantial right at stake when they request recall and resentencing.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1045

People v. Roy (2025) 110 Cal.App.5th 991, 998-999

People v. Faustinos (2025) 109 Cal.App.5th 687, 696

Fourth Holding:

Where the trial court undertakes to make a resentencing decision on the merits after a defendant has filed a petition pursuant to section 1172.1, the defendant is entitled to an appeal. Here, the trial court effectively evaluated and denied defendant’s petition on the merits. After defendant filed his petition, the trial court set a status conference and a briefing schedule.

When the People asked the trial court whether it would consider recalling defendant’s sentence, the trial court directed the People to address the merits. Additionally, the trial court invited the victims to be heard at a hearing, it considered the parties’ arguments, and it considered whether resentencing defendant would be in the interest of justice. In short, the trial court evaluated and denied defendant’s petition on the merits, thus affecting his substantial rights.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1172-1173

People v. Olea (2025) 115 Cal.App.5th 889, 902

Fifth Holding:

Defendant claims the enactment of Evidence Code section 352.2 constitutes such a change in sentencing laws. However, he offers no authority or reasoned argument to support his claim. As a result, we may deem the claim forfeited.

Authority:

Cal. Rules of Court, rule 8.204(a)(1)(B)

People v. Stanley (1995) 10 Cal.4th 764, 793

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]

Amelioration, Probation Parole PRCS, Sentencing

Case 000562

Posted on by Gary McCurdy

Error and/or relief

The trial court denied a petition by defendant for resentencing under what is now Penal Code section 1172.75 because, by the time the trial court conducted a resentencing hearing, the defendant had been released on parole. This was error, and the matter is remanded for resentencing.

First Holding:

Under section 1172.75, unless imposed for certain specified sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is invalid. Section 1172.75 also provides for resentencing of individuals upon whom now-invalid prison prior enhancements under section 667.5 were imposed. This resentencing proceeds in three stages.

The first stage, which involves correctional officials, is identification: Section 1172.75 requires state and county correctional officials to identify those persons in their custody currently serving a term for a judgment that includes [a now-invalid prison prior] enhancement and inform the sentencing court.

The second stage, which is conducted by the courts, is verification: The sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement that is now invalid.

The third stage, which is also conducted by the courts, is actual resentencing: If a defendant has been identified as eligible, and a court has verified eligibility, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 does not require a defendant who is incarcerated and eligible at the beginning of the resentencing process under the statute to remain incarcerated until actual resentencing.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057

Third Holding:

Because section 1172.75 requires correctional officials to identify persons in custody serving a term, and a term is ordinarily understood to be time served in prison, only defendants who are incarcerated at the time of identification are eligible for resentencing under section 1172.75.

However, at the verification stage section 1172.75 requires courts to determine not that the identified persons are in custody serving a term, but rather that the current judgment includes a sentencing enhancement described in section 1172.75(a).

Moreover, because section 1172.75 expressly recognizes that there may be a substantial time lag between the identification and resentencing stages, it can be concluded that the Legislature intended the court-related criterion for resentencing eligibility to operate independently from earlier conditions applicable at the correctional official identification stage and did not include continued incarceration as a requirement at the verification stage.

Resentencing an individual who is on parole at the time of resentencing is not an idle act, because resentencing may reduce or terminate the period of parole.

Authority:

People v. Jefferson (1999) 21 Cal.4th 86, 95

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1067

Fourth Holding:

We also do not reach, and express no view on, whether a parolee serving an indeterminate sentence is entitled to termination, or reduction in the period, of parole if upon resentencing the sentence is reduced.

Authority:

In re Lira (2014) 58 Cal.4th 573, 578-582

In re Bush (2008) 161 Ca1.App.4th 133, 140-143

Appellate Principles, Elements of crime, Jury instructions, Sufficiency of and substantial evidence

Case 000561

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of child endangerment where the child was not near the endangering activity (an insecure location where a firearm was stored in the home).

First Holding:

We generally review allegedly improper jury instructions de novo. Resulting error is reviewed under either Chapman, which requires the prosecution to show federal constitutional error was harmless beyond a reasonable doubt, or under the less strenuous standard of Watson, which requires the defendant to demonstrate the reasonable probability of a more favorable result and generally applies to state-law errors. An instructional error involving a single element will be deemed harmless only in unusual circumstances, such as where the element was undisputed, the defense was not prevented from contesting the omitted element, and overwhelming evidence supports the omitted element.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

Chapman v. California (1967) 386 U.S. 18, 24

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Merritt (2017) 2 Cal.5th 819, 828

Second Holding:

In evaluating a claim that a conviction lacks sufficient evidence, we review the whole record to determine whether there is substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Such evidence can include not only circumstantial evidence, but also all reasonable inferences drawn from it. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, but we neither reweigh the evidence nor reevaluate the credibility of the witnesses.

Authority:

People v. Wear (2020) 44 Cal.App.5th 1007, 1019

People v. Soriano (2021) 65 Cal.App.5th 278, 286

People v. Ochoa (1993) 6 Cal.4th 1199, 1206

Third Holding:

Failing to deny children access to a loaded firearm is sufficient to constitute circumstances likely to produce great bodily harm and death.

Authority:

People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 91

Appellate Principles, Jurisdiction, Sentencing

Case 000560

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This appeal was dismissed as from a nonappealable order, but it is summarized for providing numerous principles regarding appealability. It purported to be an appeal from a postconviction motion to strike restitution fines that were imposed more than 10 years earlier. The authority relied on by the appellant was section 1465.9, which states, “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.”

(The complication in this case is that the fines were imposed in 1989 under Government Code section 13967. The trial court pointed out that the section was repealed in 2003, and concluded that the change reflected in Penal Code section 1465.9 did not apply because no restitution fines were imposed under section 1202.04.)

First Holding:

Before we may consider the merits of the defendant’s appeal, we must first determine whether the trial court’s order denying his postjudgment motion to vacate his restitution fines is appealable. The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. An order made after judgment is appealable if it affects a defendant’s substantial rights.

A trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b). Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.

In this case, the defendant was sentenced in 1989 and began serving his sentence that same year. This court affirmed the judgment on appeal, and the remittitur issued by April 1991. Thus, absent an exception to the general common law rule, the trial court lacked jurisdiction in 2025 to grant the defendant’s petition and resentence him by vacating his restitution fines. 

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 254 [Because an appealable judgment or order is essential to appellate jurisdiction, the appellate court must consider the question of appealability sua sponte, and dismiss the appeal if the judgment or order is found to be nonappealable]

People v. Loper (2015) 60 Cal.4th 1155, 1159

People v. E.M. (2022) 85 Cal.App.5th 1075, 1085

People v. Roy (2025) 110 Cal.App.5th 991, 997

Second Holding:

Where a defendant whose conviction is final files a statutorily unauthorized freestanding petition, both the court below and this court lack jurisdiction to consider the arguments raised therein. In that circumstance, the appeal must be dismissed.
.

Authority:

People v. Garcia (2025) 114 Cal.App.5th 139, 144