Author Archives: Gary McCurdy

Fifth Amendment, Standard of review

Case 000071

Posted on by Gary McCurdy

Error and/or relief

The trial court should have granted the defendant’s motion to suppress his interrogation statements because he invoked his right to counsel under Miranda. His statements were involuntary and coerced. We conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial.

First Holding:

A custodial interrogation can come in various forms and does not require questions. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

Authority:

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

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Second Holding:

Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect.

Authority:

Pennsylvania v. Muniz (1990) 496 U.S. 582, 601

United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975

E

Third Holding:

When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation.

Authority:

United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147

Fourth Holding:

Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them.

Authority:

Edwards v. Arizona (1981) 451 U.S. 477, 484–485

People v. Johnson (2022) 12 Cal.5th 544, 580

Michigan v. Harvey (1990) 494 U.S. 344, 350

People v. Henderson (2020) 9 Cal.5th 1013, 1022

People v. Avalos (2022) 85 Cal.App.5th 926, 932

Fifth Holding:

The error requires reversal unless it is harmless beyond a reasonable doubt.

Authority:

People v. Elizalde (2015) 61 Cal.4th 523

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

Sixth Holding:

We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.

Authority:

People v. Johnson (2022) 12 Cal.5th 544, 578

People v. Henderson (2020) 9 Cal.5th 1013, 1023

People v. Suarez (2020) 10 Cal.5th 116, 158

Abstracts and Minutes

Case 000070

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that the court orally waived all fines and fees at resentencing.

First Holding:

Because the trial court expressly stated its intent to waive all discretionary fines and fees, which includes restitution fines, we conclude the court did not impose restitution fines under section 1202.4 or parole revocation fines under section 1202.45. The abstract of judgment must be corrected to reflect the judgment orally imposed.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may order correction of abstracts of judgment that do not reflect the oral judgments of sentencing courts]

People v. Zackery (2007) 147 Cal.App.4th 380, 385 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls]

Second Holding:

The restitution fine, although including a minimum fine, is discretionary in that it permits the trial court to decline to impose it for compelling and extraordinary reasons.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 303

Abstracts and Minutes, Gary Musings

The Abstract Is Concrete

Posted on by Gary McCurdy

Some Words About Abstracts Of Judgment And Minute Orders

I run across many, many cases where the abstracts of judgment and minute orders are incorrect in ways that could harm the defendants’ interests. CDCR and parole authorities are going to accept what they see on the abstract of judgment as a true and accurate account. Errors might affect an inmate’s housing and job assignments and may even result in denial of the proper calculation for good behavior and work credits, not to mention result in depletion of inmate funds for the repaying of debts no longer or never owed.  And the abstract of judgment is part of the record of conviction, which may be relied on when the prosecution decides to seek enhancements to the range available on the current offense because the defendant has been convicted of certain types of crimes in the past.  As well as when the court or jury decides whether the allegation is true.

I personally believe attorneys should obtain a copy of the abstract of judgment and minute orders–because minute orders, too, have been seen to contain errors, and they, too, can be used to guide the decisions that affect inmates–and check out their accuracy immediately. Where wrong, it should be brought to the attention of the proper person or court to get the correction.  

I do recognize that the paperwork is prepared after the sentencing hearing, so obtaining it would require a little post-judgment effort.  But errors are not uncommon.  As of the writing of this post, I have collected and summarized just under 860 unpublished opinions that have provided some sort of relief to the defendant.  In nearly 140 of those, the abstract or minute order contained information that not only was incorrect, it made the defendant’s plight appear worse than it was.  Reflecting fines due that in fact the court waived.  Misstating the crime as kidnapping when it was actually false imprisonment.  Adding years to the sentence over what was imposed.  Shorting the amount of credit for time served ordered by the court.

I’m not suggesting these errors were intentional.  They are simply a result of human error in a situation where the clerk must process tons of paperwork, often by marking a checkbox, invariably several hours or maybe days after the event took place, mixed in with several other similar events conducted on the same day.  I also recognize that the 860 “victory” cases represent roughly 38% of the total criminal cases I have looked at as of this writing, but that still reflects that about 6% of the criminal cases have abstracts of judgment or minute orders that were incorrect in a way that adversely impacted the defendant.

As an example of how something can go terribly wrong, suppose a defendant was convicted years ago of violating Penal Code section 245, which (at the time in my hypothetical) could be violated by assaulting a person EITHER by use of a deadly weapon OR by means likely to cause great bodily harm, because the then-wording of section 245 started out, “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury,” rather than having the two methods separated in different parts of the section as the section now reads.

Decades later, the defendant commits a robbery, only his second offense ever. If the abstract of judgment erroneously indicates that his prior violation of section 245 was by use of a deadly weapon–rather than by means of force, as it actually was (in my hypothetical)–it would appear that the defendant would have a strike, resulting in a doubled sentence. Or if the defendant’s record was a bit worse and that old conviction is seen to count toward a total of two prior strikes, he’s possibly looking at a minimum of 25 years to life, depending on the nature of the new offense. All because of an incorrect abstract of judgment “proving” that he had that as a strike. Isn’t avoiding that risk worth securing a correct abstract of judgment and related minute orders? Okay, I see I’ve bent the planks in my soapbox, so I’ll dismount, for now.

Stop the Presses! Back up on the soapbox! Since the original drafting of this  a few months ago (when I was prototyping the website on my own while the real deal was being constructed by my pro), I ran across an unpublished case (Case 000300, so it will be a while before you see that summary) where the abstract of judgment incorrectly stated the defendant had been convicted of a serious or violent felony! The appellate court has ordered its correction, but my, my! That mistake might have resulted in all sorts of problems should the defendant ever be convicted of yet another crime in the future. Sure, I’m certain there are those who think people get what they deserve and shouldn’t complain when their poor judgment results in worse punishment than the law permits. That’s not how I feel, however. There’s enough injustice out there already, and the Legislature has spoken on what the punishment may be. There’s no call for someone to be subjected to beyond what the law permits. Okay, I’m done for now. I’ve worn out the soapbox so much it couldn’t qualify for a derby.  Back to summarizing.

 

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

People v. Patton (2025) 17 Cal.5th 549

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Amelioration, Retroactivity, Sentencing

Case 000068

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which narrowed liability for gang-related crimes.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

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

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

Second Holding:

AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). 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.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607

Third Holding:

Assembly Bill No. 333 is retroactive under Estrada, meaning it applies to cases like this one where the judgment is not yet final.

Authority:

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

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

Fourth Holding:

In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. [Gary note: I included this tidbit simply to raise awareness of a Court of Appeals options in how opinions may be crafted.]

Authority:

California Standards of Judicial Administration, section 8.1(1)