Author Archives: Gary McCurdy

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, the 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 by the jury or by the judge in a court trial.

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).

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

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

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

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]

Fourth Holding:

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. 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, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

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

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

People v. Lynch (2024) 16 Cal.5th 730, 768 [a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established]

Eighth Holding:

A Sixth Amendment sentencing violation is prejudicial unless an appellate court 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, or that those facts were otherwise proved true in compliance with current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

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

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

 

 

Elements of crime, Jury instructions

Case 000704

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to instruct that the jury could find the maul to be a deadly under either of two theories–(a) that it was inherently deadly or dangerous or (b) that it was used in such a way that it was capable of causing and likely to cause death or great bodily injury.

First Holding:

Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 6

Second Holding:

Add holding The trial court instructed the jury, pursuant to CALCRIM No. 3145, that if the jury found the defendant guilty of count three—vandalism—it must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon.

The instruction defined a deadly or dangerous weapon as any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. It went on to explain that an object is inherently deadly if it is deadly or dangerous in the ordinary use for which it was designed.

The court further instructed the jury to consider all the surrounding circumstances in determining whether the object constituted a deadly or dangerous weapon.
here

Authority:

CALCRIM no. 3145

Third Holding:

For assault with a deadly weapon our high court has defined a weapon that is not inherently deadly as deadly nonetheless, when it is used in a manner likely to produce death or great bodily injury. CALCRIM No. 3145 has, in turn, adopted the same definition in defining a deadly or dangerous weapon under section 12022.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1029

People v. Stutelberg (2018) 29 Cal.App.5th 314, 317

Fourth Holding:

Whether a weapon is deadly or dangerous as used focuses on potentiality and not on an actual injury to a victim, or even physical contact. Although a mere possibility of serious injury is not enough, the question is whether serious injury was likely, even if it did not come to pass. This necessarily calls for an assessment of potential harm in light of the evidence.

Authority:

In re D.T. (2015) 237 Cal.App.4th 693, 698

In re B.M. (2018) 6 Cal.5th 528, 535

Fifth Holding:

The court committed alternative theory error by presenting the jury with two theories by which it could find the maul a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7

Sixth Holding:

The error was factual and is subject to review under Watson. Under the Watson standard, reversal is required if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. A “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

In making this evaluation, we may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.

Authority:

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

College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715

People v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237

Seventh Holding:

The prosecutor repeatedly argued during closing that a maul was an inherently dangerous weapon. Indeed, during rebuttal, the prosecutor emphasized that the maul was an inherently dangerous weapon, like a firearm, and that in just its simple design, it is deadly and dangerous.

Given the relative weakness of the evidence that the defendant used the maul in a manner likely to cause death or great bodily injury and the prosecutor’s emphasis on the inherently deadly nature of the maul, there is a reasonable chance that at least one juror could have found the enhancement true under an inherently deadly theory. We therefore reverse the deadly or dangerous weapon enhancement.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1226–1227 [prejudice found where the prosecutor argued a legally invalid theory during closing arguments]

(Compare with) People v. Stutelberg (2018) 29 Cal.App.5th 314, 322 [finding no prejudice because the prosecutor did not expressly refer to the inherently deadly weapon theory and did not invite the jury to classify the box cutter as inherently deadly]

Appellate Principles, Effective assistance of counsel, Equal protection, Fines and fees, Sentencing

Case 000703

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing two $30 criminal conviction assessment fees and two $40 court operations assessment fees without first determining whether the defendant had the ability to pay those fees.

First Holding:

The imposition of ancillary payments raises equal protection issues. Upon request, a court must consider a defendant’s inability to pay before imposing a court operations assessment (Pen. Code, sec. 1465.8(a)(1)) or a court facilities assessment (Gov. Code, sec. 70373(a)(1)).

In making this determination, a court must allow the parties to present any relevant evidence or argument on the matter. For these reasons, we vacate the $80 court operations assessment fees and $60 criminal conviction assessment fees and remand the matter to afford the trial court an opportunity to determine in the first instance whether the defendant has the ability to pay those costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

To avoid passing upon whether the defendant’s trial attorney failed to provide constitutionally adequate assistance, we exercise our discretion to excuse the defendant’s forfeiture of his challenge to the imposition of the ancillary costs.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [noting that a reviewing court may reach the merits of a forfeited claim t forestall a defendant’s claim of ineffective assistance of counsel]

Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment

Case 000702

Posted on by Gary McCurdy

Error and/or relief

Defendant’s sentence is vacated, and the matter is remanded for resentencing with directions that the trial court exercise its sentencing discretion without considering aggravating factors that were not found true by the jury.

First Holding:

The court relied on circumstances in aggravation that were not submitted to the jury. The trial court’s authority to impose an upper term sentence is addressed in section 1170(b), which authorizes an upper 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 by the jury or by the judge in a court trial.

There was no objection, and the upper term sentence could have been imposed based on only the aggravating factors of victim vulnerability and taking advantage of a position of trust, which were found true by the jury. Therefore, the upper term is not a sentence that could not lawfully be imposed under any circumstance in the particular case.

Thus, the unauthorized sentence exception to the forfeiture rule may not apply under the facts in this case. However, to forestall a future claim of ineffective assistance of counsel, we exercise our discretion to excuse any possible forfeiture and address defendant’s claim on the merits.

Authority:

PEN 1170

People v. Scott (1994) 9 Cal.4th 331, 354, 355–356 [holding defendant waived claim that trial court abused its discretion in aggravating his sentence based on factors that were inapplicable, duplicative, and improperly weighed]

People v. Achane (2023) 92 Cal.App.5th 1037, 1043

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6

Second Holding:

Section 1170(b) triggers the Sixth Amendment jury trial right with respect to every aggravating factor (other than a prior conviction) the trial court uses to justify an upper term sentence, and under the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Third Holding:

Such a violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmn standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Fourth Holding:

Applying these principles, we find the trial court erred in relying on the defendant’s continuing failure to take accountability for his actions. This additional aggravating factor was not decided by the jury but, rather, was a conclusion made by the trial court based on both defendant’s trial testimony and his continuing claim of innocence at sentencing.

Although the jury did not believe defendant’s testimony as to six of the nine counts charged, it was never asked to decide the issue of his lack of accountability, and since the jury was excused before sentencing, it obviously could not have made a finding that defendant continued to fail to take accountability. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Fifth Holding:

The People did not prove, and could not have proved, a lack of remorse or lack of accountability without burdening defendant’s constitutional right to testify at trial and maintain his innocence.

Authority:

People v. Key (1984) 153 Cal.App.3d 888, 900 [lack of remorse may not be used as aggravating factor when defendant denies guilt and evidence is conflicting]

People v. Bonilla (2007) 41 Cal.4th 313, 356 [at penalty phase of capital crime prosecutor may properly comment on a defendant’s lack of remorse as relevant to whether remorse is present as a mitigating circumstance but may not suggest that lack of remorse is an aggravating factor]

Abstracts and Minutes, Appellate Principles, Gary Musings, Jurisdiction, Sentencing

Case 000701 and Gary Musings

Posted on by Gary McCurdy

Error and/or relief

The court erred when it failed to order joint and several liability for the victim’s restitution. The co-defendant was tried separately and sentenced by a different judge in an earlier proceeding.

First Holding:

In the co-defendant’s proceedings, the court ordered joint and several liability for the victim’s restitution, but in sentencing the defendant in this proceeding, the court (a different judge) made no mention of joint and several liability. A joint and several direct victim restitution order under section 1202.4(f) is not expressly permitted by statute, but is also not prohibited. The trial court therefore has discretion to make the obligation of multiple codefendants joint and several.

Authority:

People v. Arnold (1994) 27 Cal.App.4th 1096, 1099

People v. Neely (2009) 176 Cal.App.4th 787, 800

People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052

Second Holding:

A restitution order is intended to compensate the victim for the actual loss he or she incurred; however, it is not intended to provide the victim with recovery greater than that amount. When multiple defendants are culpable, the issue of double recovery is avoided when the trial court holds codefendants jointly and severally liable for the full amount of a crime victim’s economic loss.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172

People v. Fortune (2005) 129 Cal.App.4th 790, 794–795

People v. Leon (2004) 124 Cal.App.4th 620, 622 [a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Third Holding:

An abstract of judgment may be modified to reflect that the victim restitution order is a joint and several obligation.

Authority:

People v. Cornejo (2016) 3 Cal.App.5th 36, 43

People v. Neely (2009) 176 Cal.App.4th 787, 800–801 [ordering modification of the judgment to expressly state that the restitution order is joint and several as to the defendant and the codefendant]

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [to avoid double recovery, appellate court modified judgment to provide expressly that the direct victim restitution ordered is joint and several]

Fourth Holding:

As a matter of equity, and because there is no double recovery, the matter should be remanded so that the court can modify the restitution order to make liability joint and several. Section 1202.46 confers continuing jurisdiction to modify an order for victim restitution.

Authority:

PEN 1202.46

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

Gary Musings, Triggered By Third Holding:

Gary Musings note: I think the “Third Holding” and the authorities cited by the court demonstrate a prime example of the importance of reading the cases cited, and do not simply rely on what I have written in these summaries. A critical component of this decision that causes me pause is that the trial court did NOT make an order for joint and several liability; it apparently made no comment on it at all. This is not a case where the record shows that the court did so order but the order didn’t get reported properly in the abstract of judgment or minute order. It is not a case where the judge made comments indicating an intent to order joint and several liability, but the order was not expressed by the court. This is a case where the judge simply gave no indication at all regarding joint and several liability with the co-defendant who had been sentenced in a different proceeding.

First, I do not doubt that the Court of Appeal has the authority to modify the judgment OR the abstract of judgment. Section 1260 states, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

But if I had submitted a brief that relied on the Cornejo, Neely, and Blackburn cases as authority for the court to actually change a judgment by ordering modification of the abstract of judgment, I think I could legitimately expect the opposition to point out the following rebuttals.

(A.) One cannot tell from the Cornejo decision whether the trial court had ordered joint and several liability but it wasn’t reflected in the abstract, or whether the trial court was silent and the appellate court simply modified the judgment by modifying the abstract (which is what happened in this Case 000701). Thus, we cannot determine whether the modification simply recorded the actual order in the abstract of judgment or the appellate modified the judgment. We don’t know.

(B.) In Neely, the trial court DID order joint and several liability, and the abstract simply did not reflect that, so the appellate court ordered the abstract amended to reflect what the trial court ordered. (That is NOT what happened in this Case 000701.)

(C.) In Blackburn–a case somewhat similar to this Case 000701 in that both defendants were sentenced at different times–the appellate court concluded that the trial court DID intend joint and several liability. Blackburn said, “The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. It seems glaringly obvious that is what it did here. In this light, there is no double recovery; nor is Jackson entitled to have Blackburn’s restitution obligation credited against his. Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.”

In other words, Blackburn approached it by clarifying what was “glaringly obvious”–that the trial court actually did order joint and several liability.

I think this points out the importance of actually reading the cases that you, as the defense attorney, intend to rely on, AND of actually reading the cases that your opposition cites.

And don’t stop there. Suppose Case 000701 was actually a published opinion, and you wanted to rely on it to get the appellate court in your client’s case to modify the abstract of judgment. If all you cited was the published decision in People v. Case 000701, you MIGHT prevail. But if your opposing party delved deeper, it could respond with an argument discounting the authority of People v. Case 000701, because Case 000701 (arguably) relied on cases that were not authority because they really did not have the same situation as People v. Case 000701. Remember the appellate principle: A case is not authority for propositions not considered. (People v. Chavez (2020) 54 Cal.App.5th 477, 480).

 

Sentencing

Case 000700

Posted on by Gary McCurdy

Error and/or relief

It appears that the trial court miscalculated the defendant’s credit for time served. The matter is remanded for it to recalculate the credit. The People do not dispute that the custody credits may have been incorrectly calculated, but that the record is not clear as to the date of defendant’s release on bond. The People recommend a return to the trial court for it to recalculate the custody and conduct credits. Based on the People’s concession, we will order limited remand to the trial court to calculate presentence custody credits.

Holding:

Prisoners confined to jail prior to sentencing for a felony conviction are among those entitled to Penal Code section 4019 credits.

Authority:

People v. Duesler (1988) 203 Cal.App.3d 273, 275

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and 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. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether 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 the Three Strikes law.

The Supreme Court concluded 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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

Amelioration, Appellate Principles, Sentencing

Case 000698

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall under section 1172.6 on the grounds that he had previously filed a petition that was denied. Because the record demonstrates that the defendant is prima facie eligible for relief under case law that has emerged since his original petition was denied in 2020, we remand the matter to the trial court with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6(d).

First Holding:

Although the elements of collateral estoppel are satisfied, an equitable exception to that doctrine arises when there has been a significant change in the law since the initial ruling that warrants reexamination of the issue.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454

Second Holding:

In 2018, the Legislature, through SB 1437, amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. In 2021, through SB 775 the Legislature clarified that the amendments made by SB 1437 were also intended to eliminate any other theory of imputed-malice murder liability.

A defendant seeking relief under section 1172.6 must attest to the following: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder under which malice is imputed to a person based solely on that person’s participation in a crime. (2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder. (3) The petitioner could not presently be convicted of murder under current law.

Upon receipt of a facially sufficient petition, the trial court shall appoint counsel for petitioner if requested. The trial court then assesses whether the petitioner is prima facie eligible for relief. If the court determines that the petitioner has made a prima facie showing of eligibility for relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Third Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. The doctrine is intended to protect litigants from the burden of relitigating an identical issue with the same party or his privy while promoting judicial economy by preventing needless litigation.

Collateral estoppel has five elements.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. While satisfaction of these elements is necessary to invoke the equitable doctrine of collateral estoppel, it is not always sufficient. Even if the elements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 451-452, 454

Fourth Holding:

In denying the defendant’s earlier petition, the court stated that at no time did the defense or prosecution argue the theory of natural and probable consequences at trial. The only homicide theory the parties argued to the jury] was that the defendant was an aider and abettor of a planned assassination. Three years after that denial of the petition, Lee held that, despite the prosecution (in Lee) arguing a single theory to the jury, the instructions were not so limited and permitted the jury to find the defendant guilty on a theory not argued by the prosecution.

The Lee court did not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because it did not have the full record before it. The Lee court was therefore unwilling to conclude, based solely on the prosecution’s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice. The same reasoning applies in the instant case.

Authority:

People v. Lee (2023) 95 Cal.App.5th 1164, 1188

Fifth Holding:

Lee constitutes a significant development or clarification of the law. Because the trial court did not have the benefit of Lee when it issued its order, foreclosing a re-examination of the defendant’s arguments would be unfair.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454 [an exception to collateral estoppel is when there is a significant change in the law]

Jury trial

Case 000697

Posted on by Gary McCurdy

Error and/or relief

The defendant was not advised of her right to a jury trial on the prosecution’s petition for extension of her commitment under a finding of not guilty by reason of insanity, and she did not personally waive that right. Therefore, her commitment must be reversed.

First Holding:

A defendant who is found not guilty by reason of insanity may be committed to a state hospital for a term equal to the maximum sentence the court could have imposed for the underlying offense. A person’s commitment may be extended beyond the maximum sentence, however, if certain procedures are followed.

When the petition to extend the commitment is filed, the court shall advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial. The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney.

Authority:

PEN 1026.5

Second Holding:

The statutory language is unambiguous–the person named in the petition has the right to a jury trial, and the trial shall be by jury unless the person named in the petition waives said right.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1166

Third Holding:

In the present case, there is nothing in the record showing the trial court advised appellant of her right to a jury trial, obtained a personal waiver from her, or made an explicit finding of substantial evidence that she lacked the capacity to make a knowing and voluntary waiver. Instead, the court accepted defense counsel’s waiver of a jury trial without any advisements or personal waivers or findings. The record offers no explanation. Under these circumstances, there is no basis to infer appellant personally waived her right to a jury trial from the silent record. Therefore, the jury trial waiver is invalid.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1168-1169

Duty of the court, Sentencing

Case 000696

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by refusing to recalculate the defendant’s credit for time served on resentencing, instead deferring to the Department of Corrections and Rehabilitation to make the calculation. The trial court was responsible for making this calculation.

First Holding:

Penal Code section 1237.1 requires that errors in the award of presentence custody credits be addressed to the sentencing court, even when the matter is pending on appeal. An erroneous credit calculation is an act in excess of the sentencing court’s jurisdiction and may be corrected by that court whenever brought to its attention.

Authority:

PEN 1237.1

People v. Wrice (1995) 38 Cal.App.4th 767, 770

People v. Jack (1989) 213 Cal.App.3d 913, 917

Second Holding:

The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing. The defendant was originally sentenced on in 2022 and was credited with 476 presentence custody credits. He was resentenced in 2025 with the same number of credits.

Where, as here, a prison term already in progress is modified, the resentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. There are [nearly 900] days between and including the original sentencing date and the resentencing date. Therefore, the defendant is entitled to actual credits of [more than 1350] days. The trial court was responsible for making this calculation.

Authority:

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

People v. Salgado (2022) 82 Cal.App.5th 376, 381

Abstracts and Minutes

Case 000695

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected in two respects: First, the abstract of judgment states the trial court imposed a five-year sentence for the section 12022(a)(1) firearm enhancement. But the jury was not asked to, and did not, find that the defendant was armed with a firearm in the commission of the robbery. Second, the abstract of judgment states the trial court imposed a five-year sentence for the count 2 robbery conviction. But at the oral pronouncement of sentence, the court doubled that term to 10 years because of the prior strike.

First Holding:

An appellate court has inherent power to correct clerical errors in its records to reflect the true facts, including the oral judgments of judicial officers. We agree such correction of the record is appropriate. The abstract of judgment must be amended to reflect a firearm enhancement was never imposed on the count 2 robbery and the sentence on that count is 10 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 186–187

Sentencing

Case 000694

Posted on by Gary McCurdy

Error and/or relief

Where the defendant was convicted of being a felon in possession of a firearm and felony possession of ammunition, the court should have stayed the sentence on one of the counts under section 654.

First Holding:

Section 654(a), provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. This section precludes multiple punishment for a single act or omission, or an indivisible course of conduct. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Deloza (1998) 18 Cal.4th 585, 591

Neal v. State (1960) 55 Cal.2d 11, 20, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 334

Second Holding:

Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Sok (2010) 181 Cal.App.4th 88, 100