Author Archives: Gary McCurdy

Discretion, Standard of review

Case 000789

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court abused its discretion. It failed to follow the governing statute’s directions. Its conclusion that the defendant posed an unreasonable risk to public safety, as defined by section 1001.36(c)(4), was unsupported by substantial evidence. Accordingly, we issue the requested writ of mandate and direct the court to grant the defendant’s motion for mental health diversion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a diversion program for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 887, 890

Second Holding:

The decision whether to grant diversion is a two-step process. First, the court determines if the defendant satisfies the eligibility requirements set forth in section 1001.36(b). Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

Authority:

PEN 1001.36(a) – (b)

Third Holding:

Second, the court determines if the defendant is suitable for diversion under the factors set forth in section 1001.36(c). Those factors are: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36(a) and (c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Fourth Holding:

Finally, even when all eligibility and suitability factors are met, courts have discretion to deny mental health diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895-896

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Fifth Holding:

Our review is for abuse of discretion.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

Under section 1170.18, the Legislature has narrowly defined an unreasonable risk of danger to public safety to mean an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). The violent felonies encompassed in this definition are known as super strikes. The super strikes are murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offenses or sexual offense committed against minors under the age of 14.

Authority:

PEN 1170.18(c)

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

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1150-1151

Seventh Holding:

By statute, when determining the risk of danger, t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. A defendant who seeks diversion is not being sentenced, so the general sentencing objectives set forth in rule 4.410 of the California Rules of Court are inapplicable.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Eighth Holding:

A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

The trial court expressed that it could not know whether the defendant was going to commit a super strike, and based on his two violent incidents from 2007 and 2010, the trial court concluded that there was a danger that there was a likelihood that the defendant could commit a super strike, thereby permitting the trial court to exercise its residual discretion to deny diversion.

But the court misunderstood what was required. The plain language of the statute requires a finding that a defendant will not pose an unreasonable risk of committing a super strike.

The statute does not, as the trial court suggested, require a prediction that a defendant will not, in fact, commit a super strike. The correct analysis thus requires assessing probabilities; not predicting outcomes, as the trial court incorrectly understood.

These are two distinct types of inquiry. Applying the correct standard to the record before us, we conclude the evidence is insubstantial that the defendant is too dangerous to be treated in the community on the ground that he poses an unreasonable risk of committing a super strike.

A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Cluff (2001) 87 Cal.App.4th 991, 998

Ninth Holding:

The only question that remains is whether further proceedings are required. We conclude they are not. The trial court found that the defendant satisfied all criteria for diversion except the public safety factor, leaving nothing further to be decided. The People do not argue otherwise. Under these circumstances, we will reverse the court’s order with directions to grant the defendant’s motion unless the People present changed circumstances that warrant rehearing.

Authority:

People v. Williams (2021) 63 Cal.App.5th 990, 1005

 

Juveniles, Sentencing

Case 000788

Posted on by Gary McCurdy

Error and/or relief

The minor was found to have committed assault with force likely to produce great bodily injury, carrying a concealed, loaded firearm, evading an officer, and resisting an officer. The juvenile court committed appellant to a Secure Youth Treatment Facility. The juvenile court lacked authority to do so. Remanded for a new disposition hearing.

First Holding:

the juvenile court lacked authority to commit him to a Secure Youth Treatment Facility (SYTF) because the most recent offense for which he was adjudicated was not a qualifying offense under Welfare and Institutions Code section 707(b).

Authority:

WIC 875(a)(1)-(2)

Second Holding:

Before the enactment of section 875, our Supreme Court interpreted similar language in section 733(c). Section 733(c) prohibits a ward’s commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities [known also as DJJ and DJF] if the ward’s most recent offense alleged in any petition and admitted or found to be true by the court is not described in section 707(b) or Penal Code section 290.008(c).

The court held this language is clear and lends itself to only one reasonable interpretation. The phrase “most recent” describes when the minor committed the offense, not when the petition is adjudicated.

Authority:

In re D.B. (2014) 58 Cal.4th 941, 947

In re B.J. (2020) 49 Cal.App.5th 646, 648

Third Holding:

The Legislature used language in section 875 substantially similar to language the Supreme Court had already interpreted in section 733(c). We presume, therefore, that the Legislature intended the same construction. Now, instead of DJJ, eligible youth can be committed to a SYTF if their most recent offense is described in section 707(b).

The court did not have authority to impose a SYTF commitment because appellant’s most recently committed offenses occurred four months after the only offense that comes with section 707(b), and are not qualifying offenses. Remand is necessary to allow the court to conduct a new disposition hearing.

Authority:

WIC 875

Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785

Sentencing

Case 000787

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by sentencing the defendant on a count on which the jury acquitted him.

Holding:

The defendant contends, and the People concede, that the 180-day sentence imposed for count 11 must be vacated because the jury acquitted him of that offense. We agree. The sentence imposed on count 11 is therefore unauthorized as it could not lawfully be imposed under any circumstance in the particular case. We accordingly vacate the sentence on count 11.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 962

Discretion, Duty of the court, Standard of review

Case 000786

Posted on by Gary McCurdy

Error and/or relief

By shifting the burden of proof from the People to appellant, the trial court erred in denying the defendant’s petition to terminate his duty to register as a sex offender.

First Holding:

Before 2021, if an offender was required to register as a sex offender, they were required to register for life. Beginning on January 1, 2021, SB 384 (2017–2018 Reg. Sess.) restructured the sex offender registration requirement into three tiers: tier one, registrants must register for at least 10 years; tier two, for at least 20 years; and tier three, for their lifetimes.

Authority:

PEN 290(d)

People v. Franco (2024) 99 Cal.App.5th 184, 190

People v. Thai (2023) 90 Cal.App.5th 427, 432

Second Holding:

Appellant is a tier two registrant who is required to register for at least 20 years. Provided the registrant meets certain criteria, including registering for the required minimum period, a registrant can petition the superior court to terminate the registration requirement.

Authority:

PEN 290.5(a)-(c)

Third Holding:

Upon receiving notice of a petition to terminate registration, the district attorney may object and present evidence demonstrating that community safety would be significantly enhanced by continued registration.

The prosecutor has the burden of producing evidence to establish terminating the registration requirement would considerably raise the threat to society because the defendant is currently likely to reoffend. The trial court’s task is to assess whether the People have carried their burden of producing evidence establishing that requiring continued registration appreciably increases society’s safety.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fourth Holding:

In making this determination, the trial court may consider the following seven factors: [(1)] the nature and facts of the registerable offense; (2) the age and number of victims; (3) whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); (4) criminal and relevant noncriminal behavior before and after conviction for the registerable offense; (5) the time period during which the person has not reoffended; (6) successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and (7) the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.

The trial court may base its determination upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.

Authority:

PEN 290.5(a)(3)

Fifth Holding:

The standard of review applied by an appellate court reviewing a trial court’s order on a petition for termination is abuse of discretion. The showing required to establish an abuse of discretion is as follows: To establish an abuse of discretion, the defendant must demonstrate the trial court’s decision fell outside the bounds of reason, i.e., was arbitrary, capricious, or patently absurd.

The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under 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. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Section 290.5 required the prosecutor to prove that appellant was currently likely to reoffend and that community safety would be significantly enhanced by continued registration. Here, the trial court denied the petition, at least in part, due to the absence of evidence that appellant no longer posed the threat he did when he committed the registrable offenses. Doing so placed the burden on appellant, rather than on the prosecutor, to produce evidence of the current threat, if any, posed by appellant. This was error. We remand for a new hearing.

Authority:

PEN 290.5(a)(2)-(3)

People v. Thai (2023) 90 Cal.App.5th 427, 432-433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Seventh Holding:

(Gary Note: The court proceeded to explain why the error was prejudicial, applying the Watson standard, based on facts specific to this defendant, and the details need not be recited in this summary.)

Authority:

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

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial. The court may, however, consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

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

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

People v. Wiley (2025) 17 Cal.5th 1069, 1078

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Amelioration, Elements of crime, Sentencing

Case 000784

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to recall his sentence under section 1172.6. The evidence was insufficient to prove he is guilty of murder and attempted murder beyond a reasonable doubt.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person’s sentence is commensurate with his or her criminal culpability. Specifically, it amended section 188 by adding a requirement that, except as stated in section 189(e), all principals to murder must act with express or implied malice to be convicted of that crime. SB 775 (2021-2022 Reg. Sess.) extended relief to defendants convicted of attempted murder, but only if their convictions were based on the natural and probable consequences doctrine.

Authority:

PEN 188(a)(3)

People v. Gentile (2020) 10 Cal.5th 830, 842-843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

SB 1437 also created a procedural mechanism for defendants with eligible murder convictions to seek retroactive relief under the amended law. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing.

At that hearing, the court sits as an independent fact finder and the prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under the amended law. The parties may offer new or additional evidence at the hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Garrison (2021) 73 Cal.App.5th 735, 743

Third Holding:

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends. The defendant must not only know the direct perpetrator’s intent to commit murder, but he or she must share that intent. And, aiding and abetting the commission of a crime requires some affirmative action. The word aids refers only to overt or affirmative forms of assistance.

Authority:

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

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Partee (2020) 8 Cal.5th 860, 868

Fourth Holding:

We review a trial court’s denial of a section 1172.6 petition for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a direct aider and abettor in the murder and attempted murders.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. Malice may be express or implied. The difference between express malice and implied malice is the former requires an intent to kill but the latter does not.

Authority:

PEN 187(a)

PEN 188(a)

People v. Soto (2018) 4 Cal.5th 968, 976

Sixth Holding:

Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 453

Seventh Holding:

We cannot presume that because members of the defendant’s group belonged to the same gang, they must have known each other’s intent. Indeed, the law does not recognize a rule of guilt by association. We insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends. Without knowledge of his cohort’s intent to kill, any of the defendant’s subsequent acts cannot constitute the actions necessary to establish aider and abettor liability.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165

Sentencing, Sixth Amendment, Standard of review

Case 000783

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred by sentencing defendant to the upper term on his robbery conviction.

First Holding:

On January 1, 2022, SB 567 (2021-2022 Reg. Sess.) went into effect, amending section 1170. Section 1170 authorizes a trial court to impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

However, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Second Holding:

In Erlinger, the United States Supreme Court held that, under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). An exception to this allows a trial court to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

In Wiley, the California Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, we interpret section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, the Wiley court held 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.

Authority:

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

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Each of the four aggravating factors found true by the trial court required finding true more than the bare fact of a prior conviction and its elements. Accordingly, the court’s reliance on each of the other four aggravating factors (rule 4.421(b)(2)–(5)) was erroneous. Moreover, we cannot conclude that all of these errors were harmless beyond a reasonable doubt.

Authority:

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

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

People v. Lynch (2024) 16 Cal.5th 730, 743 [a sentence imposed under former section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified]

Fifth Holding:

Whether a defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)) is a comparative and qualitative determination which makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Lynch (2024) 16 Cal.5th 730, 775 [to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

Sentencing, Sixth Amendment

Case 000782

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing the upper term based on circumstances in aggravation that were not stipulated to nor proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2), prohibits imposition of an upper-term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170(b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Where the trial court relies on unproven aggravating factors, we assess prejudice under Chapman, which requires us to find prejudice unless we can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence. The Chapman standard applies whenever the court has relied on unproven factors, even if some other aggravating facts relied on have been properly established.

Authority:

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

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

Third Holding:

The trial court erred by imposing the upper-term sentence based on five aggravating factors that were not found true by a jury or stipulated to by the defendant. The jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated. We do not know what facts the jury relied on in finding a lack of premeditation and whether those facts would have caused a jury to find not true the allegation that the crime involved planning and professionalism.

The remaining aggravating factors relied on by the court, other than the prior prison term, likewise require factual determinations. As stated in Wiley, even the determination that crimes are of increasing seriousness is comparative and qualitative and must be left to the decision of the jury.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

Fourth Amendment, Standard of review

Case 000781

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to suppress because the police improperly prolonged his detention to conduct a criminal investigation unrelated to the purpose of the initial traffic stop.

First Holding:

Section 1538.5 affords criminal defendants a procedure by which they may seek suppression of illegally seized evidence. Section 1538.5 provides a comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial. A motion to suppress may be filed independently or at the preliminary hearing.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 940

Second Holding:

When a suppression motion is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences.

If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court by motion to dismiss under section 995 or in a special hearing.

At that stage, the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 941

Third Holding:

Where a suppression motion is made before a magistrate in conjunction with a preliminary hearing and no new evidence is presented in superior court, we are concerned solely with the findings of the magistrate. After submission on the transcript at the special hearing, the appellate court, like the superior court, is bound by the magistrate’s factual findings so long as they are supported by substantial evidence.

On review of the superior court ruling by appeal or writ, a two-step standard of review applies. In the first step of our review, we in effect disregard the ruling of the superior court and directly review the determination of the magistrate.

At this stage, we consider the record in the light most favorable to the People since all factual conflicts must be resolved in the manner most favorable to the superior court’s disposition on the suppression motion.

Authority:

People v. Tacardon (2022) 14 Cal.5th 235, 242

People v. Romeo (2015) 240 Cal.App.4th 931, 941

Fourth Holding:

In the second step, accepting as established all implied or express factual findings by the magistrate as are supported by substantial evidence, we then proceed to measure those findings against Fourth Amendment standards articulated by the United States Supreme Court. At this stage, we independently apply the law to the factual findings, determining de novo whether the factual record supports the magistrate’s conclusion that the challenged search met the constitutional standard of reasonableness.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 941-942

People v. Macabeo (2016) 1 Cal.5th 1206, 1212 [In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.]

Fifth Holding:

The Fourth Amendment protects the right of the people to be secure in their persons against unreasonable searches and seizures. A traffic stop for a suspected violation of law is a seizure of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment. But where the police have probable cause to believe that a traffic violation has occurred, the seizure is constitutionally reasonable.

Authority:

U.S. Const., 4th Amend.

Cal. Const., art. I, sec. 13

Heien v. North Carolina (2014) 574 U.S. 54, 60

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669

Whren v. United States (1996) 517 U.S. 806, 809–810

Sixth Holding:

A seizure for a traffic violation justifies a relatively brief encounter for police investigation of the traffic violation. The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.

The United States Supreme Court has identified tasks that are part of an officer’s mission during a stop for a traffic violation: Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.  A temporary detention may sometimes also include a criminal history check, which is done by consulting an incar computer terminal or radioing dispatch.

These tasks are included within the officer’s mission during a traffic stop because they ‘serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. An officer may also require a lawfully stopped driver to exit the vehicle for officer safety to complete his traffic stop mission.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669-670

Rodriguez v. United States (2015) 575 U.S. 348, 354, 355-356

People v. Lopez (2019) 8 Cal.5th 353, 363, fn. 4

Seventh Holding:

On-scene investigation into other crimes, however, detours from the traffic stop’s mission. So too do safety precautions taken in order to facilitate such detours. Thus, while an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, the officer may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 670

Rodriguez v. United States (2015) 575 U.S. 348, 355

Eighth Holding:

An investigative stop can grow out of a traffic stop if the officer has reasonable suspicion of criminal activity to expand the investigation, even if those suspicions were unrelated to the underlying traffic offense. Therefore, a stop may be prolonged if the prolongation itself is supported by independent reasonable suspicion.

Authority:

People v. Espino (2016) 247 Cal.App.4th 746, 756–757

People v. Vera (2018) 28 Cal.App.5th 1081, 1088

Ninth Holding:

Under the totality of circumstances, we conclude the detention was unjustifiably prolonged beyond the time reasonably needed to write the defendant a traffic ticket. Nor was the prolonged detention independently justified by reasonable suspicion that the defendant was engaged in criminal activity apart from the broken taillight. The traffic stop occurred mid-morning in broad daylight. There was no evidence that it occurred in a high-crime area; indeed, the magistrate was not sure about [the location] and how tough an area that is. And the defendant complied with all officer commands.

On this record, we conclude that although reasonable suspicion justified the initial traffic stop and removal of the defendant from his vehicle for a weapons pat-down, no reasonable suspicion justified prolonging the detention beyond the time necessary to write a traffic ticket so that the officers could further investigate the defendant for drug offenses unrelated to the mission of the traffic stop.

Authority:

Rodriguez v. United States (2015) 575 U.S. 348, 354 [Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.]

People v. Vera (2018) 28 Cal.App.5th 1081, 1088 [a stop may be prolonged if the prolongation itself is supported by independent reasonable suspicion]

People v. Flores (2024) 15 Cal.5th 1032, 1038–1039, 1045–1046 [no reasonable suspicion where the defendant ducked behind a car to hide from police in a high-crime area at night]

People v. Pantoja (2022) 77 Cal.App.5th 483, 487, 490–491 [no reasonable suspicion for a pat-down where a nervous but cooperative person with a history of weapons arrests was detained on vehicle infractions in a high crime area while wearing baggy clothing]

Rodriguez v. United States (2015) 575 U.S. 348, 357 [Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular.]

Evidence, Fifth Amendment, Jury trial, Standard of review

Case 000780

Posted on by Gary McCurdy

Error and/or relief

We conclude the detectives subjected defendant to a custodial interrogation. Their failure to advise him of his Miranda rights therefore required the suppression of his confession.

First Holding:

Under Miranda, suspects questioned by law enforcement after being taken into custody must first be informed that they have the right to remain silent, that any statements they make may be used against them, and that they have a right to the presence of an attorney. If police interrogate a suspect in custody without providing these advisements, the suspect’s responses cannot be admitted to establish their guilt.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Second Holding:

The duty to advise suspects of their Miranda rights applies only if they are in custody. Custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In deciding if a person is in custody for Miranda purposes, the question is whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. To answer this question, the court must examine all the circumstances surrounding the interrogation

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Third Holding:

Relevant considerations include (1) who initiated the contact; (2) whether the person agreed to the interview; (3) whether the person was questioned as a witness or suspect; (4) the interview’s location; (5) whether police said the person was under arrest or in custody (6) conversely, whether they said the person was free to leave at any time; (7) whether the person’s movement was restrained; (7) the length of questioning; (8) the number of officers; (9) the degree of police control over the interrogation; (10) whether officers conveyed a belief in the person’s guilt and suggested they had incriminating evidence; (11) whether the tone was aggressive or accusatory; (12) whether police used interrogation tactics designed to pressure the person; and (13) whether the person was arrested at the end of the interrogation.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16-17

Fourth Holding:

The prosecution has the burden of proving a defendant was not in custody. We review the trial court’s factual findings for substantial evidence but independently decide if the interrogation was custodial.

(GARY Note: the court then described the events in detail that led the court to declare “Based on the totality of the circumstances, we conclude defendant was subjected to a custodial interrogation long before he received Miranda advisements.” Because the opinion is unpublished, it is not useful to recite the circumstances, because you cannot cite this case as an example of a finding that Miranda rights should have been given earlier. If an attorney wants to read the full opinion, I can provide it on request.)

Authority:

In re Anthony L. (2019) 43 Cal.App.5th 438, 445

Fifth Holding:

A confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements is subject to a harmless-error standard of review specified in Chapman. Under that standard, we ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21-22

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

Sixth Holding:

The erroneous admission of defendant’s confession cannot be regarded as unimportant. A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Confessions often operate as a kind of evidentiary bombshell which shatters the defense and are thus much more likely to be prejudicial.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296

People v. Neal (2003) 31 Cal.4th 63, 86

Seventh Holding:

We decline to consider defendant’s testimony at trial in assessing harmlessness. When an illegally obtained confession is erroneously admitted, the defendant’s testimony will not render the error harmless unless it is shown beyond a reasonable doubt that the defendant did not take the stand in an attempt to mitigate the explosive impact of a confession which had left his case in ruin.

Authority:

People v. Marlow (2004) 34 Cal.4th 131, 151

Amelioration, Duty of the court, Sentencing, Standard of review

Case 000779

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or violent felony for purposes of the strike prior and prior serious felony enhancements and remand the matter to the trial court for any retrial of this finding.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: If a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7(c) defines “serious felony” to include, among other things, “any felony offense, which would also constitute a felony violation of section 186.22.”

Authority:

PEN 1192.7(c)(28)

Second Holding:

Assembly Bill 333 amended section 186.22. Effective January 1, 2022, this legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1065, 1067

Fourth Holding:

In Fletcher, our Supreme Court held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Accordingly, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22. The matter must be remanded to the trial court for any retrial of these allegations, and if required, any resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Fines and fees, Sentencing

Case 000778

Posted on by Gary McCurdy

Error and/or relief

The defendant was originally sentenced in 2011. On resentencing the defendant under section 1172.75, the trial court should not have reimposed the restitution fine, jail classification fee, and booking fee because they are unenforceable and uncollectible.

First Holding:

The trial court originally imposed the restitution fine in July 2011. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated.

Because the restitution fine was originally imposed more than 10 years before the trial court resentenced defendant, under section 1465.9(d), the trial court should not have reimposed the restitution fine when it resentenced defendant in 2025.

Authority:

PEN 1465.9(d)

Second Holding:

The trial court also should not have reimposed the booking fee and jail classification fee under Government Code section 29550.2, because the Legislature repealed that section effective July 1, 2021. After July 1, 2021, the unpaid balance of court-imposed costs under several statutes, including Government Code section 29550.2, are unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

GOV 6111