Author Archives: Gary McCurdy

Sentencing, Sixth Amendment, Standard of review

Case 000011

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially committed constitutional and statutory error in imposing the upper term sentence based on aggravating factors not tried to the jury. The factors relied on were: the victim’s particular vulnerability; the offense was carried out with planning, sophistication, and professionalism; the defendant engaged in violent conduct which indicated a serious danger to society; the defendant had numerous prior convictions and they were of increasing seriousness.

First Holding:

The defendant is entitled to a jury trial on aggravating factors, which must be proved beyond a reasonable doubt before they can be relied on to impose the upper term (unless they are stipulated to by the defendant).

Authority:

PEN 1170

Second Holding:

The standard of review for evaluating the improper use of untried aggravating fact is whether error was harmless beyond a reasonable doubt.

Authority:

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

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

Apprendi v. New Jersey (2000) 530 U.S. 466

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

Third Holding:

The parties agree the court erred in relying on those circumstances to impose the upper term on the principal count. Their disagreement centers around whether such error was prejudicial under the circumstances. On the record before us, we conclude it was.

Authority:

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

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

Appellate Principles

Case 000010

Posted on by Gary McCurdy

Error and/or relief

The defendant appealed from the denial of his second petition for resentencing pursuant to Penal Code section 1172.6. The appellate court concluded that his petition is not barred by the doctrine of collateral estoppel and corresponding public policy considerations. He had never received notice of earlier denial. He is not barred from submitting a new petition.

First Holding:

Successive petitions for resentencing are not explicitly barred by section 1172.6 but may be barred by doctrine of collaterial estoppel. Application of collateral estoppel is not automatic, but is subject to public policy considerations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 950

Second Holding:

The court does not apply collateral estoppel with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.

Authority:

People v. Yokely (2010) 183 Cal.App.4th 1264, 1273

Third Holding:

Because of the retroactive nature and ever-evolving interpretations of the law surrounding section 1172.6, defendants may avail themselves of potential eligibility for relief under the statute that was not previously available under other judicial interpretations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 951

People v. Lovejoy (2024) 101 Cal.App.5th 860

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

The defendant invited the trial court to recall his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.

First Holding:

By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Second Holding:

A defendant is not entitled to file a petition seeking relief from the court under section 1170.1. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1170.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Third Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Fourth Holding:

It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000008

Posted on by Gary McCurdy

Error and/or relief

The defendant appealed from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6. The appellate court reversed and remanded the matter to the lower court because the evidence was insufficient to support the finding defendant aided and abetted the murder of the officer.

First Holding:

In this instance, the appellate court found that there was insufficient evidence to show that the defendant aided and abetted the murder.

Authority:

SB 1437

People v. Gentile (2020) 10 Cal.5th 830

People v. Wilson (2023) 14 Cal.5th 839, 869

Second Holding:

A trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence. Under this standard, the appellate court reviews the evidence in the light most favorable to the judgment below to determine whether it discloses substantial evidence that would allow a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Under a direct aider and abettor liability theory, the prosecution must prove the person who is not the actual killer engaged in the requisite acts and had the requisite intent to aid and abet the target crime of murder.

Authority:

People v. Pacheco (2022) 76 Cal.App.5th 118, 124

Fourth Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712-713

Fifth Holding:

It is well settled that aiding and abetting the commission of a crime requires some affirmative action.

Authority:

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

Sixth Holding:

A person present at the scene of a crime—even one who is the criminal’s companion, knows a crime is being committed, fails to prevent it, and later expresses approval of it—is not guilty of aiding and abetting the crime if he takes no action to aid or encourage the crime.

Authority:

In re K.M. (2022) 75 Cal.App.5th 323, 329

 

Sentencing

Case 000007

Posted on by Gary McCurdy

Error and/or relief

The court reversed and remanded with instructions that the defendant be afforded a section 1172.75 resentencing hearing where prior was imposed but stayed or imposed and punishment stricken.

First Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050