Author Archives: Gary McCurdy

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review, Statutory interpretation

Case 001102

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it found the defendant unsuitable for Proposition 36 rehabilitation when it had not ordered and considered an evaluation by a drug addiction expert as required by Penal Code section 11395,(d)(1)(B).

First Holding:

Section 11395, known as the “Treatment-Mandated Felony Act,” was enacted as part of Proposition 36, which was approved by voters in November 2024. The statute gives repeat hard drug possession offenders the option of participating in drug and mental health treatment.

The individual must plead guilty or no contest to again possessing a hard drug, admit the alleged prior qualifying convictions, waive time for sentencing or judgment, and agree to participate in treatment.

If he or she successfully completes treatment, the defendant’s plea shall not constitute a conviction for any purpose. Such individuals are not to be sentenced to jail or prison unless a court determines that the person is not eligible or suitable for treatment.

Authority:

HSC 11395

Second Holding:

The statute further states that, upon or subsequent to arraignment for a violation of the section, and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The evaluation may be based on an interview of the defendant or others with relevant knowledge, and can include “medical records, criminal history, prior treatment history, and records pertaining to the current offense. The expert shall submit a report of the evaluation to the court and the parties.

Authority:

HSC 11395(d)(1)(B)

Third Holding:

We review de novo the trial court’s interpretation of the statute as allowing it to find defendant unsuitable for treatment without first obtaining the drug addiction expert report. Our task is to determine the electorate’s intent so as to effectuate the law’s purpose. We turn first to the language of the provision, giving the words their ordinary meaning.

We construe the language in the context of the statute as a whole and the overall statutory scheme in light of the electorate’s intent. If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the electorate’s intent is unnecessary.

Authority:

People v. Fouse (2024) 98 Cal.App.5th 1131, 1145

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901 [a reviewing court applies the same principles that govern statutory construction when interpreting a voter initiative]

Smith v. Superior Court (2006) 39 Cal.4th 77, 83

Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919

Fourth Holding:

Given section 11395’s clear language, we need not look beyond the statute itself to discern the electorate’s intent. As the statute makes clear, immediately upon or after arraignment for violating the statute, and either at the request or with the consent of the defendant or their attorney, the trial court “shall” order a drug addiction expert evaluation, and that report “shall” be submitted to the court and the parties. While the trial court has the discretion ultimately to decide that a defendant is unsuitable for treatment once the court considers the drug addiction expert’s evaluation, the expert’s evaluation must come first.

The trial court abused its discretion when it decided, notwithstanding the statutory provisions, that defendant was unsuitable for treatment before obtaining the necessary report.

Authority:

HSC 11395(d)(1)(B)

Appellate Principles, Immigration

Case 001101

Posted on by Gary McCurdy

Error and/or relief

In light of Hernandez, decided after the ruling appealed from below, we reverse the order denying the defendant’s motion to vacate his conviction under section 1473.7 because of his inadequate understanding of the immigration consequences, and we remand for further proceedings.

First Holding:

Under Penal Code section 1473.7, a person who is no longer in custody may seek to vacate a conviction on the ground it is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. The statute was enacted to provide out-of-custody defendants with a means to challenge criminal convictions for which they have suffered unexpected immigration consequences.

Authority:

PEN 1473.7

People v. Vivar (2021) 11 Cal.5th 510, 517

Second Holding:

To prevail under the statute, the defendant must first prove by a preponderance of the evidence that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

In Hernandez, the California Supreme Court made clear that for purposes of establishing error under section 1473.7(a)(1), the focus is not so much on what the defendant was told about the possible immigration consequences of his plea, but on what the defendant subjectively understood those consequences to be.

Keeping in mind that, for noncitizen defendants, preserving their right to stay in the United States is often a crucial factor in deciding whether to plead guilty to criminal charges, the trial court ultimately must decide whether the defendant was prejudicially harmed by his or her inability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 607-608, 614-15, 622-623

Fourth Holding:

The court erred by applying res judicata (based on the previous 2002 denial of a motion to vacate the conviction for inadequate advice on immigration consequences) to bar the defendant’s motion under section 1473.7.

In Ruiz, the court ruled the doctrine of collateral estoppel, an aspect of res judicata, did not preclude the defendant from bringing successive section 1473.7(a)(1) motions on the basis she failed to understand the immigration consequences of her guilty plea. In so ruling, the Ruiz court found it significant that, at the time of the defendant’s first motion, she was required to prove her attorney was ineffective for failing to advise her of those consequences.

But by the time the Ruiz filed her second motion, that requirement had been eliminated, and she only had to show she prejudicially failed to understand the immigration consequences of her plea. Because the second motion involved a different standard for challenging and prevailing on immigration advisement errors, Ruiz was not collaterally estopped from bringing the motion.

The same reasoning applies here.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1068-1070

DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–825

Padilla v. Kentucky (2010) 559 U.S. 356 [a defense attorney’s failure to advise his or her client about the potential immigration consequences of a plea may constitute ineffective assistance of counsel]

Fifth Holding:

Whereas the defendant was required to prove his attorney was ineffective when he petitioned to vacate his guilty plea 25 years ago, that was not the case when he filed his recent section 1473.7(a)(1) motion. Hernandez confirms this is an important point of distinction because the error analysis under section 1473.7(a)(1) turns not on what the defendant was advised regarding the possible immigration consequences of his plea, but on whether he meaningfully understood those consequences and whether he was able to defend against or knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 622-626

Sixth Holding:

Hernandez acknowledged that remand to the trial court for further development of the record will be appropriate in many appeals from denials of section 1473.7(a)(1) motions that were pending when it issued its decision. As the concurring and dissenting opinion observed, remand would allow the defendant an opportunity to make a fuller presentation of evidence with the guidance the Supreme Court has provided in mind and would permit the trial court to make a new ruling taking that additional evidence into account.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 621, fn. 4

Abstracts and Minutes, Sentencing

Case 001100

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains a clerical error on the sentence and must be corrected.

Holding:

The transcript of the sentencing hearing and the corresponding minute order reflect that the court imposed a total indeterminate term of 152 years to life, but the abstract of judgment identifies the total term as 156 years to life. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. Because we may order the correction of such clerical errors, we will direct the trial court to modify the abstract of judgment.

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855

People v. Mitchell (2001) 26 Cal.4th 181, 186-187

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

ADD AUTHORITIES HERE