Author Archives: Gary McCurdy

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000056

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying his request for resentencing pursuant to Penal Code section 1172.75. We reverse the order because the defendant was entitled to have the court consider his eligibility for relief under Assembly Bill No. 333.

First Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements for prior prison terms.

Authority:

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

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

Second Holding:

Assembly Bill 333 (revising the elements that must be proven to support gang crimes and enhancement allegations) applies to cases where a defendant is resentenced pursuant to section 1172.75, even where there was a negotiated plea agreement.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 400

Third Holding:

Assembly Bill 333 took effect on January 1, 2022 and is considered ameliorative legislation.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

People v. E.H. (2022) 75 Cal.App.5th 467, 477

Fourth Holding:

The trial court should have considered the applicability of Assembly Bill 333 in the context of the defendant’s resentencing under section 1172.75, whether or not his counsel brought the issue to the attention of the court. By its express language, section 1172.75 itself puts the onus on the trial court to apply any other changes in law that reduce sentences. Assembly Bill 333 is such a law and should have been addressed by the trial court.

Authority:

PEN 1172.75(d)(2

Fifth Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all non-final cases.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 745

Sixth Holding:

For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 679 [The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability]

Fines and fees, Sentencing

Case 000055

Posted on by Gary McCurdy

Error and/or relief

There can be no parole restitution fine on sentences of life without the possibility of parole. We will strike the fine and direct the trial court to issue a new abstract of judgment.

Holding:

Because defendant was sentenced to prison for life without the possibility of parole, her parole revocation fine should be stricken.

Authority:

PEN 1202.45(a)

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sentencing

Case 000054

Posted on by Gary McCurdy

Error and/or relief

We find there was insufficient evidence to prove beyond reasonable doubt that the defendant’s prior strikes were based on separate criminal acts, and we remand for resentencing on that basis. There was insufficient evidence to impose his federal conviction for bank robbery as a prior strike because it could not be shown that the conviction was based on a different criminal act than either of his two state robbery convictions.

First Holding:

If two strike offenses are based on a single act, the court must dismiss one of the strikes.

Authority:

People v. Vargas (2014) 59 Cal.4th 635, 638

Second Holding:

Prior convictions for multiple criminal acts committed in a single course of conduct may be treated as separate strikes, so long as the convictions are not so closely connected that treating them as separate strikes would be contrary to the spirit of the Three Strikes law.

Authority:

People v. Benson (1998) 18 Cal.4th 24, 35

People v. Vargas (2014) 59 Cal.4th 635, 648

[GARY NOTE: The California Supreme Court issued its opinion–published, of course, but hey!–in People v. Shaw (2025) 18 Cal.5th 1089 on December 15, 2025. It concluded that only one strike can be based on the single act of vehicular manslaughter that resulted in the death of two occupants of the car his vehicle struck. One justice wrote a concurring opinion in which he questioned the continuing validity of People v. Benson (1998) 18 Cal.4th 24 (holding that two prior offenses committed seconds apart against a single victim may be treated as separate strikes) and People v. Fuhrman (1997) 16 Cal.4th 930 (holding that two offenses committed in quick succession against two separate victims qualify as separate strikes). Two other justices agreed with the concurring opinion. It may be that the majority believed that Shaw did not present the precise question raised in Benson and Furhman and therefore decided not to venture beyond the facts before it at this time. That’s pure speculation by me, of course. But there may be an audience in our high court willing to closely examine exactly what can constitute separate strikes where the crimes are closely related in time and nature.]

Third Holding:

Penal Code section 654 does not apply to successive federal and state prosecutions.

Authority:

People v. Belcher (1974) 11 Cal.3d 91, 98

People v. Fielder (2004) 114 Cal.App.4th 1221, 1234 [Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence]

Effective assistance of counsel, Immigration

Case 000053

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7. His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.

First Holding:

A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief.

Authority:

PEN 1473.7

Second Holding:

The moving party must also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction.

Authority:

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

People v. Padron (2025) 109 Cal.App.5th 950, 958

Third Holding:

The focus of this showing is the defendant’s own error. To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel.

Authority:

PEN 1473.7(a)(1)

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

Fourth Holding:

Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Authority:

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268

Fifth Holding:

The petitioner must demonstrate that the error was prejudicial.

Authority:

PEN 1473.7(a)(1)

People v. Vivar (2021) 11 Cal.5th 510, 528

 

Amelioration, Sentencing

Case 000052

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former sec. 667.5(b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the court to hold that hearing.

Holding:

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

Fines and fees, Retroactivity, Sentencing

Case 000051

Posted on by Gary McCurdy

Error and/or relief

The restitution fine must be vacated because more than 10 years have elapsed since the court imposed the fine.

First Holding:

Restitution fines are no longer collectible 10 years after their imposition and the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 is retroactive to those whose judgments are not final.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Jurisdiction

Case 000050 (remember, there is no 000049)

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing a $100 infraction fine after defendant failed to submit a firearm relinquishment form. Here, the People did not charge or approve the charging of an infraction for failure to file a completed Prohibited Persons Relinquishment Form. Nevertheless, the trial court found that defendant did not file the required form and imposed the $100 fine. As the People concede, this was beyond its power to do. We will modify the judgment to strike the fine.

Holding:

The court may not unilaterally fine a defendant for failing to complete a firearms relinquishment form. The process requires first that a prosecutor file a complaint alleging violation of Penal Code section 29810. Section 29810 requires persons convicted of a felony to relinquish all firearms within a prescribed period of time following the conviction. Failure by a defendant to timely file the completed Prohibited Persons Relinquishment Form with the assigned probation officer shall constitute an infraction punishable by a fine not exceeding $100. But due process of law requires that criminal prosecutions be instituted through the regular processes of law. These regular processes include the requirement that the institution of any criminal proceeding be authorized and approved by the district attorney.

Authority:

PEN 29810

People v. Villatoro (2020) 44 Cal.App.5th 365, 369

Amelioration, Sentencing

Cases 000046, 000047, 000048, and there is no 000049

Posted on by Gary McCurdy

Error and/or relief

[GARY’S NOTE: Three cases held exactly the same and are lumped together here, and there is no case 000049 (as a result of blogger error).]  Under the authority of Rhodius, we reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing. Under section 1172.75, a person is eligible for resentencing consideration even if the prior prison term enhancement had been stayed or stricken.

First Holding:

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050

Probation Parole PRCS, Standard of review

Case 000045

Posted on by Gary McCurdy

Error and/or relief

On appeal, the minor contends that the electronics search conditions should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or, at a minimum, modified as unconstitutionally overbroad. He also maintains that the association condition should be modified due to its overbreadth. We find the electronics search conditions reasonable under Lent, but we accept the People’s concession that they are unconstitutionally overbroad. We see no constitutional infirmity in the association condition. We therefore remand the matter to the trial court to strike or modify the electronics search condition. Remanded to modify terms 9 and 16

First Holding:

Under Lent, 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. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. We find dispositive the first element of Lent’s test, which asks whether the probation condition has no relationship to the conviction. Here, the record supports an implied finding that there was a relationship between the offense and minor’s use of an electronic device and the internet.

Authority:

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

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

People v. Patton (2019) 41 Cal.App.5th 934, 945

Second Holding:

The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal. Only facial constitutional challenges to a probation condition that are capable of correction without reference to the particular sentencing record are exempt from the general forfeiture rule.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 234-235, 237

In re Sheena K. (2007) 40 Cal.4th 875, 887

Third Holding:

The court may nevertheless exercise its discretion to consider the merits of both his Lent and constitutional claims in light of the People’s concession and the minor’s alternative contention that his trial counsel’s failure to make an adequate objection constituted ineffective assistance.

Authority:

People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions]

Fourth Holding:

In applying the Lent test, we review the conditions imposed for abuse of discretion.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Salvador (2022) 83 Cal.App.5th 57, 62, 64

Fifth Holding:

We review constitutional overbreadth questions de novo

Authority:

In re P.O. (2016) 246 Cal.App.4th 288, 297

Sixth Holding:

The electronic search conditions here were overly broad.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 [If a probation condition serves to rehabilitate and protect public safety, the condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is not entitled to the same degree of constitutional protection as other citizens.]

In re Sheena K. (2007) 40 Cal.4th 875, 890 [A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.]

In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement]

Abstracts and Minutes

Case 000044

Posted on by Gary McCurdy

Error and/or relief

The appellate court corrected the sentence to the correct term (16 months not 2 years), running some counts concurrent per the trial court order rather than consecutive per the abstract of judgment, and corrected the abstract to include several fees and fines that were imposed.

First Holding:

The abstract and minute order must be corrected to reflect that the “one third of the midterm” pronounced by the judge should have been 16 months, not two years, because the middle term for the offense is four years, not six years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

Because the minute order incorrectly states that the sentences were to run consecutively, rather than concurrently as actually ordered by the court, the minute order must be corrected, as the oral pronouncement controls. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.

Authority:

People v. Price (2004) 120 Cal.App.4th 224, 242

Third Holding:

The appellate court may correct the amount imposed by the superior court for specified assessments whose amounts are mandatory.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 [Because the seven additional assessments, surcharge, and penalties are mandatory, their omission may be corrected for the first time on appeal]

Fines and fees

Case 000043

Posted on by Gary McCurdy

Error and/or relief

The judgments is modified to vacate the restitution fine imposed pursuant to section 1202.4 because it was imposed more than 10 years ago.

Holding:

Restitution fines are no longer collectible 10 years after their imposition. Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides, “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. Any remaining amount on their restitution fines should now be vacated.

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

 

Abstracts and Minutes

Case 000042

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to correct the nunc pro tunc minute order dated in 2024 to reflect that in 2022, the defendant was resentenced pursuant to section 1170. The judgment is otherwise affirmed. The minute order incorrectly reflects that in 2022, the defendant was resentenced pursuant to sections 1172.7 and 1172.75, and must be corrected to reflect that he was resentenced pursuant to section 1170.

Holding:

The matter is remanded for the trial court to correct the nunc pro tunc minute order dated [on a date in] 2024 to reflect that [on a date in] 2022, the defendant was resentenced pursuant to section 1170. [GARY NOTE: The court did not cite authority other than that both parties agreed, but generally speaking, the minute order must be amended to conform to the oral pronouncement. I have listed some authorities below that the court could have cited.]

Authority:

People v. Price (2004) 120 Cal.App.4th 224, 242 [Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89