Author Archives: Gary McCurdy

Amelioration, Sentencing, Standard of review

Case 000021

Posted on by Gary McCurdy

Error and/or relief

The timing of the defendant’s plea does not preclude him relief under section 1172.6 because, at the time of his plea, he could have been convicted under invalidated theories of attempted murder. We also find his admissions, including his admission to acting with an intent to kill, did not establish all the elements of a valid theory of attempted murder under current law. Accordingly, we reverse the summary denial of his petition and remand for further proceedings.

First Holding:

Where a petition states eligibility on its face, and the court examines the record of the conviction suggesting otherwise, the defendant must be given an opportunity to file an amended petition.

Authority:

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

Second Holding:

Effective January 1, 2019, Senate Bill 1437 amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder 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.

Authority:

SB 1437

SB 775

PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959

Third Holding:

At the prima facie hearing, the trial court may examine the record of conviction to assess whether it refutes a defendant’s claim of eligibility.

Authority:

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

Fourth Holding:

It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing

Authority:

People v. Lopez (2023) 88 Cal.App.5th 566, 576

Fifth Holding:

When the defendant’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea and the defendant’s express admissions at the plea colloquy.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212

People v. Fisher (2023) 95 Cal.App.5th 1022, 1029

(Disagreeing) People v. Glass (2025) 110 Cal.App.5th 922

Sixth Holding:

If the trial court denies the petition without issuing an order to show cause, it must state its reasons.

Authority:

PEN 1172.6(c)

Seventh Holding:

We independently review a summary denial of a section 1172.6 petition for resentencing.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206

Duty of the court, Sentencing

Case 000020

Posted on by Gary McCurdy

Error and/or relief

Following a revocation of probation, the defendant was sentenced to state prison. The trial court erred in not obtaining a probation report before sentencing him. The error was prejudicial. We reverse.

First Holding:

Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.

Authority:

PEN 1203(b)(1)

PEN 1203(b)(4)

Second Holding:

The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record.

Authority:

People v. Llamas (1998) 67 Cal.App.4th 35, 40

Third Holding:

Prejudice is measured under Watson.

Authority:

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

People v. Dobbins (2005) 127 Cal.App.4th 176

Fourth Holding:

A stipulation to waive referral to probation must appear in the minutes

Authority:

PEN 1203(b)(4)

Appellate Principles

Case 000019

Posted on by Gary McCurdy

Error and/or relief

(GARY Note: There is not much discussion in this case. Benoit relief was granted on a petition for writ of habeas corpus seeking a finding that the notice of appeal was deemed constructively filed timely. That process is potentially available to a defendant whose notice of appeal was NOT filed with the 60 days (for a felony, 30 days for a misdemeanor), if certain conditions exist.

(The conditions are:(a) the defendant has been incarcerated during the entire period that a notice of appeal may be filed; (b) during that period the defendant requested that the attorney file one (or the attorney has otherwise conveyed to the defendant that the attorney will file the notice of appeal); and (c) the attorney failed to timely file the notice of appeal. The defendant may file a petition for writ of habeas corpus in the appellate court and ask that the court deem the notice of appeal to have been constructively filed timely. Although not discussed in this case,

(Benoit relief is generally NOT granted if the defendant was NOT in custody the entire 60 days, OR if the defendant did not ask the attorney within that 60 days to file a notice of appeal. Other than the reference to the Benoit case, the opinion does not contain any authority. I have added the two pertinent rules from the Rules of Court and a few case citations, none of which appears in the opinion, but I think it’s valuable to understand the importance of meeting that jurisdictional requirement.)

First Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

In felony cases, the notice of appeal must be filed within 60 days. In appeals from guilty pleas, any required certificate of probable cause must also be filed within 60 days. No court may extend the time to file a notice of appeal.

Authority:

Rules of Court rule 8.308

Third Holding:

In misdemeanor appeals, the notice must be filed within 30 days.

Authority:

Rules of Court rule 8.393

Fourth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion. [Gary note: Under Benoit, for an incarcerated person who, within that 60-day period, attempts to get the notice of appeal filed, a court that grants relief technically deems that the notice of appeal was constructively filed timely. Under that legal sense, it is not considered a late notice of appeal. In effect, the court is treating the timely attempts by the incarcerated defendant as the “functional equivalent”–MY description, NOT a court’s description–of filing a notice of appeal.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094

Sentencing, Sixth Amendment

Case 000018

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding:

The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence. In Wiley, our Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of the holding in Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, the court interpreted] section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, 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:

PEN 1170

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

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

Second Holding:

Failure to object generally results in forfeiture and can apply to constitutional claims.

Authority:

People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court]

People v. Scott (2015) 61 Cal.4th 363, 406 [A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial]

People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]

People v. Achane (2023) 92 Cal.App.5th 1037

Third Holding:

A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney.

Authority:

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

Fourth Holding:

An appellate court can exercise discretion to address a forfeited issue.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has engaged in violent conduct that indicates a serious danger to society or that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. 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:

PEN 1170

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

People v. Lynch (2024) 16 Cal.5th 730, 776

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000017

Posted on by Gary McCurdy

Error and/or relief

We reverse the court’s denial of the resentencing petition, which was not based on a review of the record, and remand for further proceedings under section 1172.6(c).

First Holding:

The trial court may deny a section 1172.6 petition at the prima facie stage only if the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law. If a petitioner files a facially sufficient section 1172.6 petition by indicating, among other criteria, that he meets the statutory requirements for relief,it triggers the prosecution’s duty to submit a response and the petitioner’s right to file a reply on the issue of whether a prima facie case for relief exists.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

People v. Strong (2022) 13 Cal.5th 698, 707

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456

People v. Patton (2025) 17 Cal.5th 549, 558–559

Second Holding:

The record of conviction includes documents from jury trial such as jury instructions and verdict forms.

Authority:

People v. Gallardo (2024) 105 Cal.App.5th 296

Third Holding:

We review an order denying a petition at the prima facie stage de novo.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

Fourth Holding:

The right to seek replacement of counsel under Marsden applies at all stages of a criminal proceeding.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

People v. Carter (2024) 15 Cal.5th 1092, 1096 [Marsden motion sought disqualification of the public defender’s office and individual deputy public defender]

Fifth Holding:

The record of conviction will inform the court’s prima facie inquiry, allowing the court to distinguish clearly meritless claims.

Authority:

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