Author Archives: Gary McCurdy

Gary Musings, Trivia by Gary

Trivia by Gary 6/4/2026

Posted on by Gary McCurdy

Trivia by Gary June 4, 2026

I’m pretty sure most of us know that a person who serves any time in jail up through sentencing gets credit for that pre-sentence time, assuming it’s attibutable to the reason the person is in jail. Prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971.

It was originally to be applied prospectively only, but that was held to violate equal protection guarantees.

Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released.

Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.”

Alas, that restriction is nowhere to be found today.

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000035

Posted on by Gary McCurdy

Error and/or relief

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding:

The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]

Second Holding:

Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.

Authority:

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

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

People v. Burgos (2024) 16 Cal.5th 1, 28

Third Holding:

If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.

Authority:

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

People v. Sek (2022) 74 Cal.App.5th 657, 669

United States v. Tateo (1964) 377 U.S. 463, 465

Fourth Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41

Probation Parole PRCS, Sentencing, Standard of review

Case 000034

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them

First Holding:

Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.

Authority:

PEN 1203.1

Second Holding:

A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 498

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

Third Holding:

The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition.

Authority:

People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3

Fourth Holding:

A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 233-234

Fifth Holding:

Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights.

Authority:

People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127

In re I.V. (2017) 11 Cal.App.5th 249, 260

In re Sheena K. (2007) 40 Cal.4th 875, 890

Sixth Holding:

A probation condition must be sufficiently definite for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 500

Seventh Holding:

A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be narrowly drawn]

Eighth Holding:

We review de novo constitutional challenges to probation conditions.

Authority:

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Abstracts and Minutes, Appellate Principles, Jury trial, Juveniles, Sentencing, Sixth Amendment

Case 000033

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining defendant’s personal waiver of the defendant’s right to a jury trial on allegations of aggravating circumstances and prior convictions under the Three Strikes law. As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial.

Authority:

Section 16 of Article I of the California Constitution

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, 46-47

Second Holding:

A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

Third 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, reversal and remand are required 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

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

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

People v. Lynch (2024) 16 Cal.5th 730, 743

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal

Authority:

Cal. Rules of Court rule 8.204(a)(1)(B)

People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5

Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947

People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5

Fifth Holding:

With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone.

Authority:

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2

People v. Hardy (1992) 2 Cal.4th 86, 150

Sixth Holding:

Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case.

Authority:

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Smith (1983) 33 Cal.3d 596, 599

Seventh Holding:

There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited.

Authority:

PEN 1025(b) and (c)

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Gallardo (2017) 4 Cal.5th 120, 125

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

People v. Grimes (2016) 1 Cal.5th 698, 737–738

People v. Saunders (1993) 5 Cal.4th 580, 589

Eighth Holding:

As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 855

Monge v. California (1998) 524 U.S. 721, 728–729

Ninth Holding:

Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667(a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony).

Authority:

People v. West (1984) 154 Cal.App.3d 100, 107–108

People v. Park (2013) 56 Cal.4th 782, 798

People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10

People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068

AppellateAdvisor Updates

Case 000032

Posted on by Gary McCurdy

Error and/or relief

Because the trial court improperly admitted hearsay testimony, the order revoking the defendant’s Post-Release Community Supervision (PRCS) is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

First Holding:

A preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause.

Authority:

People v. Winson (1981) 29 Cal.3d 711

People v. Arreola (1994) 7 Cal.4th 1144

Second Holding:

A trial court’s decision to admit or exclude evidence in a revocation hearing will not be disturbed on appeal absent an abuse of discretion.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198

Third Holding:

The court reviews rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

Fourth Holding:

Before a defendant’s probation or parole may be revoked, the prosecution must prove a violation by a preponderance of the evidence.

Authority:

People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066

Fifth Holding:

Probation and parole revocations are not part of a criminal prosecution; as such, the full panoply of rights due a defendant in a criminal proceeding does not apply.

Authority:

People v. Gray (2023) 15 Cal.5th 152, 163

Sixth Holding:

The Sixth Amendment’s right of confrontation does not apply to probation violation hearings; rather, a defendant’s right to cross-examine and confront witnesses at a violation hearing stems from the due process clause of the Fourteenth Amendment. This right to confrontation, however, is not absolute and the parole revocation process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

People v. Winson (1981) 29 Cal.3d 711, 716, 719

Seventh Holding:

In considering the admissibility of hearsay evidence at a parole or probation revocation hearing, a case-by-case consideration is necessary because under a due process analysis, the importance of a defendant’s confrontation right will vary with the circumstances.

Authority:

People v. Liggins (2020) 53 Cal.App.5th 55, 66-67

Eighth Holding:

The California Supreme Court has has established two separate standards for admitting hearsay evidence depending on whether the hearsay is testimonial or documentary in nature. With respect to testimonial evidence, a preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause. The broad standard of good cause is met (1) when the declarant is unavailable under the traditional hearsay standard, (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199

People v. Winson (1981) 29 Cal.3d 711, 713-714

People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160

Ninth Holding:

First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. Statements which merely record objective facts or observations of fact are generally not testimonial in nature. Nor are official records which serve purposes other than to aid a criminal investigation.

Authority:

People v. Dungo (2012) 55 Cal.4th 608, 619-621

People v. Lopez (2012) 55 Cal.4th 569, 582

Tenth Holding:

In contrast to the good cause standard for testimonial hearsay, documentary hearsay evidence may be admitted at a probation or parole revocation proceeding if there are sufficient indicia of reliability regarding the proffered material. The right of confrontation is not absolute; revocation proceedings should be flexible enough to allow for conventional substitutes for live testimony (including affidavits, depositions, and documentary evidence); and various federal courts had demonstrated a willingness to consider inadmissible hearsay evidence when it is accompanied by a reasonable indica of reliability.

Authority:

People v. Maki (1985) 39 Cal.3d 707, 709

Eleventh Holding:

Whereas the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor, the witness’s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts. This is because, often, the purpose of such foundational testimony is simply to authenticate the document, and the author, signator or custodian of the document may not even be able to recall from memory the specific contents of the writing.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1157

Twelfth Holding:

In determining whether the erroneous admission of hearsay evidence prejudiced a defendant, we apply the “harmless-beyond-a-reasonable-doubt” standard as the error is of federal constitutional dimension.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1161

Thirteenth Holding:

Post-Release Community Supervision (PRCS) was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felonies. It is similar, but not identical to parole.

Authority:

People v. Gutierrez (2016) 245 Cal.App.4th 393, 399