Author Archives: Gary McCurdy

Sentencing, Sixth Amendment, Standard of review

Case 000813

Posted on by Gary McCurdy

Error and/or relief

In imposing the upper term the trial court erroneously relied on circumstances in aggravation that were not stipulated to nor submitted to a jury for proof beyond a reasonable doubt.

First Holding:

In support of the upper term, the court identified several circumstances in aggravation that it concluded did not need to be submitted to the jury. The trial court proceeded to find true that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness; that the defendant has served a prior term in prison or county jail under section 1170(h); and that the defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed.

At the sentencing hearing, the trial court also mentioned finding true a fourth aggravating factor, that the defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. This was error.

In Wiley, the Supreme Court recognized that, under the Sixth Amendment and section 1170(b), a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. This right to a jury trial extends to the aggravating factor that a defendant’s prior convictions were of increasing seriousness. It also extends to the aggravating factor that a defendant’s prior performance on probation or parole was unsatisfactory.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1083, 1086

Second Holding:

We apply the Chapman standard of review to determine if the error was prejudicial. A defendant is entitled to a reversal and remand for resentencing unless, after examining the entire cause, including the evidence as to all relevant circumstances, we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1087

People v. Lynch (2024) 16 Cal.5th 730, 768

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

Abstracts and Minutes, Sentencing, Standard of review

Case 000812

Posted on by Gary McCurdy

Error and/or relief

Intro The defendant pled guilty to felon in possession of a firearm, and unlawfully carrying a firearm with intent to commit a felony. The trial court sentenced defendant to two years state prison on each count, with the terms to be run concurrently. The sentence violates Penal Code section 654, as both counts arise from the same act of possessing and carrying a firearm. On resentencing, the abstract of judgment needs to be corrected to reflect the actual oral pronouncement of judgment.
blurb here

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Authority:

PEN 654

Second Holding:

Both Count 1 and Count 2 are premised on the same act by defendant of owning, possessing, and carrying a firearm on or about [the date in question] and a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357

Third Holding:

Where, as here, the facts are undisputed, we review de novo the application of section 654 as a question of law.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 312

Fourth Holding:

The record is inadequate for us to determine which sentence the trial court would have stayed if it considered section 654, making section 1260 relief inappropriate. We will remand to the trial court so that it may exercise its discretion to determine which sentence to stay.

Authority:

PEN 1260

People v. Braxton (2004) 34 Cal.4th 798, 818–819 [A limited remand is appropriate under section 1260 for the exercise of any discretion that is vested by law in the trial court]

Fifth Holding:

Section 1260 provides in relevant part that the appellate court may reverse, affirm, or modify a judgment or order appealed from and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order. Although section 1260 provides this court with the broad ability to modify judgments or proceedings, we exercise this power sparingly for the trial court’s articulated discretion is, generally speaking, controlling.

Authority:

People v. Humphrey (1997) 58 Cal.App.4th 809, 813

Sixth Holding:

Where the reviewing court finds an error in the exercise of sentencing discretion, the ordinary remedy is to reverse and remand to the trial court for resentencing, during which the trial court will have a new opportunity to exercise its discretion. The law respects the substantial discretion vested in the trial court to determine the appropriate sentence in light of the facts and circumstances of the individual case. Modification of the judgment instead of remand for resentencing matters would be appropriate when a trial court’s intention is clear.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 261

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Seventh Holding:

Although the previous version of section 654 provided that an act or omission shall be punished under the longest potential term of imprisonment, effective January 1, 2022, section 654 was revised to provide the trial court with discretion to impose and execute the sentence of either term. Thus, where section 654 applies, “after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence.

[Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, restoring to the court the discretion to choose on which count punishment should be imposed and executed.]

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379-380

Eighth Holding:

In this instance, the record does not present any indication as to which sentence the trial court would have stayed if it had considered the effect of section 654. It is true, as the People note, that the [date of original sentence], minute order states “Principal Count Deemed to be Count 01.” The [date probation was revoked and sentence was executed] minute order states the same, as does the abstract of judgment. The reporter’s transcript, however, contains no record of such a designation of a principal count by the trial court. Where a conflict exists between the court’s oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. Following resentencing, the abstract of judgment must be corrected to reflect the actual oral judgment.

Authority:

People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000811

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to order a stay-away order upon sentencing the defendant. Otherwise, we affirm the court’s sentencing choices.

First Holding:

Under section 136.2, when the court has a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, the court is authorized to issue a restraining order. Orders made under section 136.2 are operative only during the pendency of criminal proceedings and as prejudgment orders. The only purpose of a section 136.2 protective order is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.

Authority:

PEN 136.2

People v. Scott (2012) 203 Cal.App.4th 1303, 1324–1325

People v. Ponce (2009) 173 Cal.App.4th 378, 383, 384 [Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.]

Second Holding:

We also observe that courts must, at the time of sentencing for certain crimes, consider issuing a protective order prohibiting a defendant from contacting a victim. None of these other statutes are applicable in this matter. The order issued against the defendant therefore transcended the authorization of section 136.2 and must be vacated.

Authority:

PEN 136.2(i)(1)

PEN 273.5

PEN 646.9(k)

People v. Stone (2004) 123 Cal.App.4th 153, 160
We review the trial court’s sentencing decisions for an abuse of discretion. Under this standard of review, the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Third Holding:

To prove an abuse of discretion, the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 377 [a sentencing court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant generally falls under one of the categories enumerated in the subdivision. Rather, the statute is clear that childhood trauma (or one of the other two categories in subdivision (b)(6)) must be a contributing factor to the offense in order to qualify for a presumption of the low term in sentencing. On this record, we cannot say that the court failed to consider section 1170(b)(6), or that its decision to impose the middle term notwithstanding the provision was so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988, 991 [In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.]

People v. Hilburn (2023) 93 Cal.App.5th 189, 204, fn. 6

People v. Ramirez (2021) 10 Cal.5th 983 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

People v. Carmony (2004) 33 Cal.4th 367, 377

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Sentencing

Case 000809

Posted on by Gary McCurdy

Error and/or relief

The court miscalculated the credit for time served and gave the defendant one less than he earned. That abstract of judgment msut be corrected as well.

Holding:

The trial court awarded defendant 278 days of actual custody credit and 278 days of conduct credit, for a total of 556 days. However, defendant was arrested on February 21, 2024 and sentenced on November 25, 2024. The court therefore should have awarded him 279 days of actual custody credit, and 278 days of conduct credit, for a total of 557 days of presentence custody credit. The minute order and abstract of judgment both credit defendant 279 actual days and 278 conduct days but nevertheless record 556 as the total number of days. Accordingly, we will order the judgment modified to reflect the correct number of total credit days.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Elements of crime

Case 000808

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of assault with a semiautomatic firearm and shooting at an occupied motor vehicle. The conviction for assault with a firearm must be reversed because it is a lesser included offense of assault with a semiautomatic firearm. We reverse the conviction for assault with a firearm.

First Holding:

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. A defendant cannot be convicted of both an offense and a lesser included offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 667–668

People v. Martinez (2012) 208 Cal.App.4th 197, 199

People v. Moran (1970) 1 Cal.3d 755, 763

Second Holding:

Here, the greater offense, assault with semiautomatic firearm (sec. 245(b))includes all the elements of the lesser offense, assault with a firearm (sec. 245(a)(2)). Therefore, we reverse the conviction on count 4 for assault with a firearm.

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, [A semiautomatic firearm assault cannot be committed without also committing a firearm assault.]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000807

Posted on by Gary McCurdy

Error and/or relief

The court’s finding that the People overcame the statutory presumption that the defendant’s mental health diagnosis was a significant factor in the commission of the offenses was not supported by substantial evidence. Therefore, its denial of his application on that basis was an abuse of discretion.

As a result, we conditionally reverse the judgment and remand with instructions for the trial court to find the defendant eligible for diversion and hold a hearing to determine the defendant’s suitability for diversion.

If the court determines the defendant is suitable for diversion, it may grant his application. If the court determines the defendant is not suitable, the defendant’s convictions and sentence shall be reinstated.

First Holding:

We review a trial court’s ruling on an application for mental health diversion for an abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on findings that are not supported by substantial evidence. By definition, substantial evidence’ requires evidence and not mere speculation.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Second Holding:

In reviewing a trial court’s finding that a fact has been proven by clear and convincing evidence, the question before us is whether the record contains substantial evidence from which a reasonable fact finder could have found it highly probable that the [disputed] fact was true. To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Third Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements. First, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Second, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Fourth Holding:

To ensure that diversion applies as broadly as possible, the Legislature amended section 1001.36 to include a presumption that a defendant’s mental disorder diagnosis was a significant factor in the commission of the offense if the diagnosis occurred within the past five years. Once the presumption is established, to overcome it, the People must prove by clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor in defendant’s commission of the offense.

Authority:

PEN 1001.36(b)(2)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Fifth Holding:

Even if a defendant meets the eligibility requirements, before the court can grant a defendant diversion, the court must also find the defendant suitable for diversion using the four criteria outlined in section 1001.36(c). Specifically, the court must find that (1) a qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.26(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Sixth Holding:

Even after finding a defendant eligible and suitable for diversion, however, a trial court may exercise its residual discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Seventh Holding:

In 2024, a mental health professional diagnosed the defendant with PTSD, major depressive disorder with psychotic features, and alcohol use disorder. Defendant’s diagnosis established a presumption that his mental health disorder was a significant factor in the commission of the robberies.

In response, the People argued that that it was simply impossible to believe that PTSD or depression caused the defendant and his cohorts to plan the robberies, which were obviously coordinated and planned out. The People offered no evidence, and the trial court did not identify any, establishing by clear and convincing evidence, that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses. Their speculation about the cause of the robberies is not substantial evidence.

The absence of evidence proving that the defendant’s mental disorder was a factor in the commission of the [robberies] is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.

By finding the presumption was overcome even though the People offered no evidence that would establish that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses, the trial court effectively shifted the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses. That is not the showing the statute requires.

Authority:

PEN 1001.36(b)(2)

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Eighth Holding:

A court abuses its discretion when it bases its decision on express or implied factual findings that are not supported by substantial evidence. Because substantial evidence does not support the trial court’s finding that the presumption was overcome, it abused its discretion in denying defendant diversion based on that finding.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 81

People v. Moine (2021) 62 Cal.App.5th 440, 449

Ninth Holding:

We review the trial court’s factual findings for substantial evidence. A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Once such evidence is found, the substantial evidence test is satisfied. The trial court found defendant would not pose an unreasonable risk to public safety as defined within the statute. Meaning that he was not likely to commit a super-strike offense if granted diversion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. Because the record contains substantial evidence to support that finding, we do not disturb it.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Carmony (2004) 33 Cal.4th 367, 377

 

Abstracts and Minutes, Sentencing

Case 000806

Posted on by Gary McCurdy

Error and/or relief

The minute orders must be corrected to reflect that the court orally ordered 32 months as the term of probation, not the 36 months recorded in the minute order.

Holding:

The trial court must pronounce judgment in open court and on the record. The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment. 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. The abstract of judgment does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. We may correct a court’s written order or judgment that does not accurately reflect its oral pronouncement

Authority:

PEN 1193

PEN 1202

People v. McGahuey (1981) 121 Cal.App.3d 524, 530

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

People v. Mitchell (2001) 26 Cal.4th 181, 185;

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes, Sentencing

Case 000805

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the oral pronouncement of judgment.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. We therefore “remand the matter to the trial court to delineate any fines and fees imposed, and their statutory bases.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Duty of the court, Plea bargains, Sentencing

Case 000804

Posted on by Gary McCurdy

Error and/or relief

When the defendant pleaded guilty, the agreement was that he would be placed on probation, and if he violated probation and it was revoked, he would be sentenced to prison for three years. It was error on revocation of probation for the court to sentence him to four years.

First Holding:

The process of plea negotiation 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 or no contest 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.

This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment, by the People’s acceptance of a plea to a lesser offense than that charged, either in degree or kind, or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and prosecution. But implicit in all of this is a process of bargaining between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 929–930

People v. Prudholme (2023) 14 Cal.5th 961, 970

Second Holding:

The prosecutor is the only party authorized to negotiate on behalf of the state, and the trial court cannot substitute itself in place of the prosecutor. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930

Third Holding:

Because a negotiated plea agreement is a form of contract, it is interpreted according to general contract principles. Acceptance of the agreement binds the court and the parties to the agreement. [When a guilty or nolo contendere plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931

Fourth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.

A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, either directly or indirectly. Once the court has accepted the terms of the negotiated plea, it lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.

For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, but it cannot change that bargain or agreement without the consent of both parties.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

Fifth Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, 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.

Authority:

PEN 1192.5(b)

Sixth Holding:

Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved. When a court accepts a plea bargain, it must impose a sentence within the limits of that bargain.

Authority:

People v. Brooks (2020) 58 Cal.App.5th 1099, 1107

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047

Seventh Holding:

It is well settled that a criminal defendant cannot argue for the first time on appeal that the trial court aggravated a sentence based on items contained in a probation report that were erroneous or otherwise flawed. The defendant did not object to the recommendation in the probation report that he be sentenced to four years, nor did he object when the court imposed that term.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351–352

People v. Victorian (1992) 2 Cal.App.4th 954, 958

Eighth Holding:

Defendant raises the alternate argument that the trial attorney was prejudicially ineffective for failing to object to the trial court’s imposition of the four-year term. To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced.

Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different. To prevail on a claim of ineffective assistance on appeal the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.

Authority:

People v. Cash (2002) 28 Cal.4th 703, 734

Ninth Holding:

In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Jones (2003) 29 Cal.4th 1229, 1254

Tenth Holding:

It appears that between the time of the plea agreement in 2022 and the revocation proceedings in 2025, the trial court and the parties were unaware of the terms and conditions of the plea agreement, that the court did not withdraw its approval of the plea agreement, the plea agreement was never modified, and the probation report’s recommendation of the upper term violated the terms and conditions of the plea agreement as agreed to by the prosecution and defendant in 2022.

Instead, it appears the probation officer unilaterally recommended the upper term of four years without consideration of the plea agreement for the midterm of three years.

Defendant is not seeking a sentence outside the terms of the plea agreement but seeking to enforce the plea agreement. When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Therefore, we direct modification of the abstract of judgment to reflect the sentence agreed to by the parties and approved by the trial court in 2022—that defendant should be sentenced to the midterm of three years.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80

 

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

We review de novo a trial court’s denial of a section 1172.6 resentencing petition at the prima facie stage.

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

Amelioration, Sentencing, Vicarious liability

Case 000802

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction did not establish the defendant was ineligible for relief as a matter of law, we reverse and remand for the trial court to set an evidentiary hearing under section 1172.6(d).

First Holding:

In 2019, the legislature enacted SB 1437, which amended the state’s murder laws to ensure culpability was commensurate with liability. The legislature later expanded its amendments with SB 775. SB 775 allowed defendants to seek resentencing if their convictions rested on any theory under which malice is imputed to a person based solely on that person’s participation in a crime, and they could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

To seek such relief, a defendant must file a petition under what is now section 1172.6. If petitioners make a prima facie showing that they are eligible for relief, the trial court must set an evidentiary hearing. If the record of conviction shows that the petitioner is ineligible for relief as a matter of law, the court may deny the petition at the prima facie stage.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971

Second Holding:

Because the trial court was incorrect there was no theory presented to the jury under which malice could have been imputed, we reverse.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257

Third Holding:

In Maldonado, the court traced how a defendant could be convicted of first degree murder without a requirement that the jury find the defendant harbored malice. It noted that CALCRIM No. 401 only requires an intent to aid and abet a crime. In the murder context, this instruction can muddy the waters because the crime is not necessarily the act that caused the death or may not be an act that would require a conscious disregard of human life.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1264-1268

People v. Langi (2022) 73 Cal.App.5th 972

Fourth Holding:

Whether instructional error could have been raised on direct appeal is immaterial to the section 1172.6 analysis.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 649