Author Archives: Gary McCurdy

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Appellate Principles, Duty of counsel

Case 000799

Posted on by Gary McCurdy

Error and/or relief

The habeas corpus writ is granted. The matter is remanded for the court to hold an evidentiary hearing to determine various identified aspects of allegedly false testimony and its impact on the jury’s decision to convict the defendant.

First Holding:

The People argue that the claim is procedurally barred under the contemporaneous objection rule, and the false testimony was not material. Also, the People assert the claim is prohibited because the defendant failed to pursue them on direct appeal, citing Sakarias and Dixon.

Petitioner argues that the assertions of procedural default do not bar the presentation of the claims in these proceedings, citing Glossip), in which the United States Supreme Court held that it is the prosecution’s duty to correct false testimony when it appears.

Authority:

In re Sakarias (2005) 35 Cal.4th 140, 169

In re Dixon (1953) 41 Cal.2d 756, 759

Glossip v. Oklahoma (2025) 604 U.S. 226, 253, fn. 10 [even if the defense had made a conscious choice not to raise the issue of the false testimony, that would be irrelevant.]

Second Holding:

Petitioner alleged that the claim was being raised presently under the authority of SB 97, which went into effect on January 1, 2024, and allows for a writ of habeas corpus to be prosecuted on the additional bases of the discovery of new evidence that has not been previously presented and heard at trial and has been discovered after trial.

The People have not directly addressed this assertion, so we conclude that, in issuing the order to show cause, the Supreme Court found the petition was timely.

(Gary note: the Court of Appeal denied the defendant’s first petition for writ of habeas corpus, so he petitioned for review in the Supreme Court, which remanded the matter to the Court of Appeal to issue an order to show cause.)

Authority:

PEN 1473(b)(1)(A)

Third Holding:

In reviewing a habeas petition, the Supreme Court (or any other court considering such a petition) performs a gatekeeping function of determining whether it states a prima facie case for relief and whether the stated claims are procedurally barred. If the petition meets these requirements, the court must issue a writ of habeas corpus or order to show cause, receive a return and traverse, and may, if necessary, order an evidentiary hearing on the claims.

Authority:

In re Cook (2019) 7 Cal.5th 439, 457

Fourth Holding:

The Supreme Court’s direction to an appellate court to issue an order to show cause why the relief sought in the petition should not be granted signifies its preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 454-455

People v. Duvall (1995) 9 Cal. 4th 464, 475

Fifth Holding:

The issuance of the order to show cause creates a cause giving the People a right to reply to the petition by a return and to otherwise participate in the court’s decisionmaking process. It is through the return and the traverse that the issues are joined in a habeas corpus proceeding.

Once the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. If the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 455

People v. Romero (1994) 8 Cal.4th 728, 739-740

Sixth Holding:

It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it to go uncorrected when it appeared.

Authority:

Napue v. lllinois (1959) 360 U.S. 264, 269

People v. Carrasco (2014) 59 Cal.4th 924, 966-967

Seventh Holding:

If the defendant makes such a showing, a new trial is warranted so long as the false testimony may have had an effect on the outcome of the trial,—that is, if it in any reasonable likelihood could have affected the judgment of the jury. In effect, this materiality standard requires the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Evidence can be material even if it goes only to the credibility of the witness.

Authority:

Glossip v. Oklahoma (2025) 604 U.S. 226, 246

Napue v. lllinois (1959) 360 U.S. 264, 269

Eighth Holding:

The Court of Appeal is ill-suited to make factual determinations. For this reason, we cannot simply order a new trial, and, instead, must remand the matter to the superior court with directions to conduct an evidentiary hearing to (1) the basis on which the paramedic based his testimony that there were two gunshot wounds; (2) whether the prosecution possessed the autopsy report and the police report summarizing the findings of that report, and, if not, why; (3) whether the autopsy report was provided to petitioner’s trial counsel in discovery, and, if not, why this would not constitute a Brady violation; (4) why the false testimony of the paramedic was not timely corrected; (5) why Detectives [A] and [B] did not testify about the evidence collected at the scene and the results of the autopsy; and (6) why a new trial should not be ordered.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 901 [Ordinarily, an evidentiary hearing is the appropriate means of resolving factual disputes of this nature]

Brady v. Maryland (1963) 373 U.S. 83, 87

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000798

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, if the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

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

Third Holding:

We review the trial court’s denial of mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

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

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

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

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 000797

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment mistakenly reflects that the trial court imposed financial obligations for court operations and conviction assessments and the abstract erroneously indicates the restitution fines were not stayed. It must be corrected.

First Holding:

The trial court stated a compelling reason for staying an otherwise mandatory restitution fine: any income the defendant earned would be better directed toward paying the direct restitution to the victim that the court did order.

Authority:

People v. Mercer (1999) 70 Cal.App.4th 463, 467 [we draw all inferences in favor of the judgment]

Second Holding:

The abstract of judgment shall be corrected to reflect that the trial court stayed the section 1202.4, subdivision (b), restitution fines, and the financial obligations from the court operations and conviction assessments shall be struck. (Gary note: the court cited no authority for ordering the correction of the abstract of judgment, but there are many cases it could have relied on. I have set forth a few below for your convenience.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

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

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000796

Posted on by Gary McCurdy

Error and/or relief

The conviction of assault with a firearm is reversed for insufficient evidence.

First Holding:

Section 245(a)(2), criminalizes the commission of an assault upon the person of another with a firearm. Assault is defined by statute as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Authority:

PEN 245(a)(3)

PEN 240

Second Holding:

Assault is a general intent crime. It requires proof that the defendant willfully committed an act that by its nature will probably and directly result in injury to another. Further, the defendant must have been aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result.

Authority:

People v. Williams (2001) 26 Cal.4th 779, 782, 788

Third Holding:

The actus reus of assault is the present ability to commit a violent injury on the person of another. It is the action enabling[a defendant to inflict a present injury. The present ability element is satisfied when a defendant has attained the means and location to strike immediately. In this context, however, immediately does not mean instantaneously. It simply means that the defendant must have the ability to inflict injury on the present occasion even if the defendant is several steps away from actually inflicting injury.

Authority:

PEN 240

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1172

People v. Licas (2007) 41 Cal.4th 362, 370

Fourth Holding:

As a general rule, a defendant cannot commit assault with a firearm using an unloaded or inoperable weapon, unless the firearm is used as a club or bludgeon. The reason is straightforward: absent the means to fire the weapon, the defendant lacks the present ability to commit a violent injury on the person threatened, in the manner in which the injury is attempted to be committed.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3

People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [person pointing an unloaded gun at another has no present ability to commit a violent injury]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6

People v. Valdez (1985) 175 Cal.App.3d 103, 110–111, 112 [assault defendant with an unloaded gun lacks personal means to inflict injury]

People v. Wolcott (1983) 34 Cal.3d 92, 102

People v. Orr (1974) 43 Cal.App.3d 666, 672

People v. Sylva (1904) 143 Cal. 62, 64

People v. Lee Kong (1892) 95 Cal. 666, 669 [it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant]

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1173, fn. 11 [as the unloaded gun cases demonstrate, the defendant must have an actual, not merely apparent, ability to inflict injury]

Fifth Holding:

This rule, however, is not categorical. Consistent with Chance’s explanation that present ability requires only the ability to inflict injury on the present occasion, courts have recognized that an unloaded or inoperable firearm may support assault liability where the evidence establishes the defendant had the means to load and/or render it operable immediately.

Authority:

People v. Lattin (2024) 107 Cal.App.5th 596, 612, 620 [there is no brightline-rule requiring a loaded firearm]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

Sixth Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

Seventh Holding:

(Gary note: the court then outlined the evidence and concluded that it was insufficient to support this count. The defendant pulled the trigger but the gun was unloaded, and there was no evidence that he had the ability to reload it at the time of the offense. Thus, he had no present ability.)

Accordingly, the conviction on count 2 must be reversed for insufficient evidence, and double jeopardy bars retrial on that charge. The associated firearm enhancement (sec. 12022.5(a)) necessarily falls with the conviction. We vacate appellant’s sentence and remand the matter for resentencing.

Authority:

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Eighth Holding:

A full resentencing is appropriate when part of a sentence is stricken on review. This permits the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Appellate Principles, Effective assistance of counsel, Pleading, Sentencing

Case 000795

Posted on by Gary McCurdy

Error and/or relief

The court erroneously imposed a 10-year upper term firearm enhancement, although the jury was not asked to consider, and did not render a finding, that defendant personally used a firearm in the commission of the murder. The 10-year firearm enhancement is unauthorized. We therefore strike the enhancement and affirm the judgment as modified.

Holding:

The personal firearm use allegation under section 12022.5(a), was pled only as to the codefendant. No firearm allegation was alleged as to defendant under any statute. Nevertheless, at defendant’s sentencing hearing, the trial court imposed a 10-year upper term enhancement for personal firearm use under section 12022.5. No objection was raised in the trial court to the imposition of this enhancement, and no contention was raised on appeal regarding the sentencing error. The 10-year firearm use enhancement is unauthorized and must be stricken.

(Gary note:  There was no discussion of effective assistance of counsel in the opinion.  It relied solely on the unauthorized nature of the sentence.  But I have “tagged” this as ineffective assistance of counsel.  How could counsel have let his or her client receive a 10-year enhancement that was not charged against the client?  Yes, it was against the co-defendant, but I’m not sure it takes a Monday morning quarterback to suggest that one’s client should not be sentenced on a different defendant’s charges.  If the co-defendant had been charged with murder, and my client with only burglary, I think I’d notice if my client was sentenced to a life term for my co-defendant’s murder conviction.  Just sayin’, I guess.)

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of the court, Sentencing, Standard of review

Case 000794

Posted on by Gary McCurdy

Error and/or relief

The court erred at the recall of sentence hearing under section 1172.6 when it refused to review the transcript of the district attorney’s summation at the original trial. We reverse the trial court’s order and remand the matter for the court to consider the record of conviction in its entirety.

First Holding:

Effective January 1, 2019, SB 1437 added what is now section 1172.6 and made other amendments to the Penal Code that eliminated the natural and probable consequences doctrine and limited the scope of liability that could be imposed under the felony murder theory.

The purpose of this legislation was to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Outside of the felony-murder rule, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448

Second Holding:

Effective January 1, 2022, SB 775 further limited the theories under which a defendant could be prosecuted to better reflect this purpose.

As a result, section 1172.6(a) now provides that a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder;

(3) The petitioner could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Third Holding:

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. The parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under subdivision (c).

Authority:

PEN 1172.6(c)

People v. Lewis (2021) 11 Cal.5th 952, 972

Fourth Holding:

The prima facie inquiry under subdivision (c) is limited. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

The prima facie bar was intentionally and correctly set very low. At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

If the petitioner makes a prima facie showing of eligibility, the trial court must issue an order to show cause and hold an evidentiary hearing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Sixth Holding:

The trial court erred by refusing to consider the prosecutor’s closing argument when determining whether the defendant made a prima facie showing of eligibility for relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction may include closing arguments of counsel]

People v. Harden (2022) 81 Cal.App.5th 45, 55 [considering counsel’s arguments when determining prima facie eligibility under section 1172.6]

Seventh Holding:

In promulgating SB 775, the Legislature specifically provided relief to persons who may have been convicted under another theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Where the petitioner argues that he or she was convicted under another theory of imputed malice, the absence of natural and probable consequences and felony-murder instructions to the jury alone may not be sufficient to preclude eligibility as a matter of law.

As here, where the petitioner has identified specific portions of the record of conviction in support of the claimed theory of imputed malice, the trial court should consider that record material in the first instance to make its prima facie determination.

We reverse the trial court’s order denying the defendant’s petition for resentencing and remand the cause to the trial court to consider the record of conviction in its entirety.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 661 [legislature intended SB 1437 to reach beyond felony murder and natural and probable consequences cases]

Abstracts and Minutes, Fines and fees

Case 000793

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains an error that must be corrected.

Holding:

Our review of the record reveals a discrepancy between the trial court’s oral pronouncement and the abstract of judgment. Specifically, the abstract of judgment indicates that the trial court lifted the stay on the mandatory probation revocation fine of $300 after revoking defendant’s probation. The trial court’s oral pronouncement did not address a probation revocation fine nor lift a stay on a probation revocation fine.

Moreover, a probation revocation fine under section 1202.44 was never imposed in defendant’s probation case. Therefore, there was no probation revocation fine for which a stay could be lifted. When there is a discrepancy between the court’s oral pronouncement and the clerk’s minute order or the abstract of judgment, the record of the oral pronouncement controls.

We have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts. Accordingly, we strike the $300 probation revocation fine (sec. 1202.44) included in the abstract of judgment. We order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

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

Amelioration, Plea bargains, Sentencing

Case 000792

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1170(d), because (a) it incorrectly concluded that section 1171 barred resentencing where the original sentence was agreed on by the parties, and (b) it incorrectly believed that the parties had originally agreed to the sentence imposed. Reversed and remanded.

Because the trial court did not consider whether, despite the availability of youthful offender parole, the defendant’s determinate sentence is a de facto LWOP sentence, we leave that issue for the trial court to consider in the first instance.

First Holding:

Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

The statute then provides that a plea bargain may not be rescinded based upon such modification: Any change to a sentence shall not be basis for a prosecutor or court to rescind a plea agreement. Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement

Authority:

PEN 1171(a), (c)(2) and (c)(3)

Second Holding:

Section 1170(d), under certain circumstances, provides for the recall and resentencing of juvenile offenders [who were tried as adults] with LWOP sentences.

(Gary note: without citation to published authority directly discussing this point, the unpublished opinion concludes that the use of the term “life without the possibility of parole” in section 1170(d) does not mention any specific statutes imposing LWOP sentences, such as section 190.5.

(This court infers from that lack of specificity that the Legislature must have intended that section 1170(d) apply whenever a candidate has received a sentence that, effectively, precludes parole in his or her lifetime. In other words, this unpublished opinion’s reasoning on this point is that section 1170(d), by its very terms, contemplates both express LWOP sentences and de facto LWOP sentences (sentences whose terms cannot be completed within a reasonable lifetime).

(The court states, “Thus, the Legislature appears to have intended section 1170(d) to be interpreted in a practical rather than technical manner to apply not only to formal LWOP sentences but also to de facto LWOP sentences that effectively render a juvenile offender ineligible for parole before they are expected to die.”

(Keep in mind that my description of this part of the holding is placed in a bracketed “Gary note,” and I may be oversimplifying and even misstating the court’s reasoning on this point. I simply thought it was an interesting approach that may prove useful.

(Also, the county’s District Attorney “invited” the Supreme Court to grant review on its own motion.  I suspect it is because the Attorney General actually represented the People in this appeal, and the DA would have had no standing to file a petition for review.  The Supreme Court has granted itself to a date in October 2026 to decide whether to grant review on its own motion.)

Authority:

PEN 1170(d)(5)

Third Holding:

A practical interpretation of section 1170(d) is also supported by constitutional considerations. At least four Court of Appeal decisions have held that restricting resentencing under Section 1170(d) to juvenile offenders with formal LWOP sentences is irrational and violates equal protection, though others have disagreed.

Authority:

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Sorto (2024) 104 Cal.App.5th 435, 450-454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061

People v. Heard (2022) 83 Cal.App.5th 608, 631-634

Contra: People v. Baldwin (2025) 113 Cal.App.5th 978, 1002-1006

Contra: People v. Thompson (2025) 112 Cal.App.5th 1058, 1075-1081, review granted Sept. 24, 2025, S292540

Fourth Holding:

Nonetheless, interpreting section 1170(d) to be limited to formal LWOP sentences plainly raises a serious constitutional question, and it is well-established that statutes should be construed to avoid constitutional questions where they are reasonably susceptible to a reasonable alternative interpretation that do not raise such questions. Accordingly, we conclude that section 1170(d) should be interpreted to apply to de facto as well as formal LWOP sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 862 [If a statute is susceptible of two constructions, one of which will raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it free from doubt as to its constitutionality.]

People v. Miracle (2018) 6 Cal.5th 318, 339 [A statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.]

Fifth Holding:

The trial court held that the defendant was not serving a de facto LWOP sentence because he is eligible for youthful offender parole under section 3051 and, in fact, already has received a youthful offender parole hearing. We disagree. Youthful offender parole is available to all juvenile offenders with LWOP sentences, whether formal or not.

Moreover, the Legislature extended youthful offender parole hearings to juvenile offenders with LWOP sentences in 2017, five years after enacting section 1170(d). In so doing, the Legislature did not indicate that it intended to end resentencing for juvenile offenders with LWOP sentences under section 1170(d), and, as the Supreme Court has long recognized, absent an express declaration of legislative intent, we will find an implied repeal only when there is no rational basis for harmonizing the two potentially conflicting statutes.

Accordingly, in determining whether an individual was sentenced to imprisonment for life without the possibility of parole under section 1170(d), youthful offender parole should be disregarded.

Authority:

PEN 3051(b)(4)

People v. Hardin (2024) 15 Cal.5th 834, 845

Garris v. McCutchen (1997) 16 Cal.4th 469, 477

People v. Sorto (2024) 104 Cal.App.5th 435, 447-448

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1061

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

Fines and fees, Retroactivity, Sentencing, Standard of review, Statutory interpretation

Case 000791

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court reimposed the restitution fine that was ordered at the original sentencing more than 10 years earlier. The restitution fine must be vacated.

First Holding:

Defendant contends the trial court erred by reimposing a restitution fine under section 1202.4(b) because the language of section 1465.9(d) mandates vacating these fines after 10 years. The People disagree and counter defendant’s fines were reimposed at the resentencing hearing, making section 1465.9 inapplicable because 10 years have not elapsed under the statute. We agree with defendant.

Authority:

John v. Superior Court (2016) 63 Cal.4th 91, 95

Second Holding:

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.

Authority:

PEN 1465.9(d)

Third Holding:

Trial courts have jurisdiction to modify every aspect of a sentence at a full resentencing hearing, including fines. Here, at resentencing the trial court confirmed and reimposed all previous terms, conditions, fines and fees, and admonishments provided by the court on the day of defendant’s original sentencing. The court clearly intended to reimpose the original restitution fine and not an additional, new obligation under section 1202.4(b).

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Rosas (2010) 191 Cal.App.4th 107, 117

People v. Nilsson (2015) 242 Cal.App.4th 1, 34

Fourth Holding:

As in Salstrom, we find no support for the People’s position that this reimposition restarted section 1465.9’s 10-year clock. The plain language of section 1465.9(d) provides legislative intent to eliminate restitution fines under section 1202.4 after 10 years. Allowing trial courts to reimpose a restitution fine under section 1202.4(b) originally imposed more than 10 years prior could render section 1465.9 effectively meaningless for any defendant who is subject to a full resentencing” or is successful on an appeal or a collateral attack.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on another issue March 11, 2026, S295038

Probation Parole PRCS, Sentencing

Case 000790

Posted on by Gary McCurdy

Error and/or relief

The court erred by setting the length of probation at four years instead of two years.

Holding:

Effective January 1, 2021, AB 1950 amended Penal Code section 1203.1 to limit the maximum probation period for felony offenses. Under prior law, the length of felony probation could not exceed five years or the maximum possible sentence of imprisonment, whichever was longer. Now, the statute provides that, with certain exceptions not applicable here, felony probation may continue for a period of time not exceeding two years. Because the trial court imposed a term of probation in excess of section 1203.1’s normal two-year limit, we will reduce the term to comply with that limit.

Authority:

PEN 1203.1(a)

People v. Kite (2023) 87 Cal.App.5th 986, 992

People v. Shelly (2022) 81 Cal.App.5th 181, 185

People v. Prudholme (2023) 14 Cal.5th 961, 979 [reducing probationary term to two years to comply with AB 1950, without remand to trial court]