Author Archives: Gary McCurdy

Appellate Principles, Duty of the court, Sentencing, Standard of review

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Amelioration, Juveniles, Retroactivity, Sentencing

Case 000632

Posted on by Gary McCurdy

Error and/or relief

The trial court did not determine whether the defendant’s prior juvenile adjudication in 2013 qualifies as a strike under the current version of section 186.22(b). Further, the prior juvenile adjudication cannot serve as the basis for a prior serious felony enhancement. We remand the matter to permit retrial of the gang enhancement under the current section 186.22 and for a full resentencing following retrial or the People’s election not to pursue retrial.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed 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. Tran (2022) 13 Cal.5th 1169, 1206,

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

Second Holding:

Even if a defendant has suffered a conviction under the prior version of section 186.22, courts must look to current law, as amended in AB 333, to determine whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. The defendant’s prior conviction in this case could qualify as a strike offense only with the gang enhancement found true prior to AB 333. We must vacate the true finding on the strike prior and remand to permit the People to retry the gang enhancement under current law to determine whether the defendant’s prior conviction qualifies as a strike prior.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 587, 603-604, 607

Third Holding:

The defendant’s juvenile adjudications cannot be considered a prior serious felony conviction for purposes of the mandatory five-year enhancement in section 667(a).

Authority:

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

People v. West (1984) 154 Cal.App.3d 100, 110

Fourth Holding:

When part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Appellate Principles, Discretion, Sentencing

Case 000631

Posted on by Gary McCurdy

Error and/or relief

The sentence for either the attempted murder or the domestic violence should have been stayed pursuant to section 654, because both convictions were based on the same act, namely, the defendant’s act of running over the victim with his SUV.

First Holding:

This matter had previously been remanded for the court to consider its discretion on the application of section 654 as to which count should be sentenced on and which should be stayed. The original judge had retired. The resentencing judge’s statements make clear that in determining whether to stay the sentence on count 1 or count 2, he was deferring to and believed himself to be bound by the sentencing choices already made by the original sentencing court. He did not exercise his own discretion to decide which sentence should be stayed under section 654. Rather, he expressed the belief that the original sentencing judge had already made the relevant determination.

That was error. The original sentencing judge declined to apply section 654 at all, so she never exercised her discretion to decide which sentence should be stayed under section 654. To date, no judge has exercised their discretion on that issue. Because the record does not clearly indicate which sentence the resentencing judge would have stayed had he exercised his discretion, the judge’s failure to exercise his discretion is not harmless.

(GARY note #1: The court did not readdress what section 654 does. As noted, this is the second appeal in the case. The unpublished opinion in the first appeal dealt exclusively with the application of section 654, and the court likely felt it was unnecessary to repeat itself in this second appeal, because its application was not the new question. Instead, it was the failure of the resentencing judge to act independently from the original judge’s views. Under section 654, a single act, or multiple acts during a course of action with a single intent and objective, may result in conviction of multiple crimes, but may be punished under only one of them. The court may choose which count to impose and execute sentence on, and must stay execution on the other count(s) to which section 654 applies. Imposition of a concurrent term is not an option.)

(GARY note #2: The court did not discuss the significance of a trial court’s failure to exercise discretion. But there is ample authority discussing the steps for an appellate court to deal with situations where the lower court did not recognize that it had discretion and it appears that there could have been a different outcome had the judge recognized it and exercised its discretion in an informed manner. I have set out some of the statements from some such cases below as Second Holding and Third Holding, but they were not cited in this opinion, likely because, as this court stated in the unpublished opinion, no judge had ever actually exercised the discretion required under section 654. Always keep in mind, however, that when I use the term “likely” in my notes, it is pure speculation on my part.)

Authority:

PEN 654

Second Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Third Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Fines and fees, Sentencing

Case 000630

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a no contact order under section 1202.05, because the victim was an adult. The trial court was required, however, to consider whether to issue a protective order under section 136.2(i)(1). We accordingly remand the matter for the trial court to do so. In addition, the abstract of judgment must be corrected to reflect that the restitution fine was stayed, and to reflect the actual date of sentencing. Also, the minute order fails to reflect the true finding of aggravating circumstances on one of the counts.

First Holding:

Section 1202.05 provides that if a defendant receives a prison sentence for certain sexual offenses against a victim who is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The restrictions on visitation imposed by the provision apply only to victims who are under the age of 18 at the time of the contemplated visitation. Section 136.2(i)(1) does provide authority for the court to impose a protective order.

Although the trial court acknowledged the victim’s status as an adult when it issued the order, there is nothing in the record to show that the trial court contemplated issuing the no-contact order under section 136.2(i)(1). Moreover, the no-contact order issued by the court did not conform to the requirements of section 136.2(i)(1). Section 136.2(i)(1) provides in part that, when a criminal defendant has been convicted of a crime that requires the defendant to register pursuant to section 290(c), the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime.

Authority:

PEN 1202.05

PEN 136.2(i)(1)

People v. Scott (2012) 203 Cal.App.4th 1303, 1323

Second Holding:

The abstract of judgment contains clerical errors that should be corrected. At sentencing, the court imposed but stayed a $10,000 restitution fine under section 1202.4(b). The abstract of judgment reflects that the fine was imposed but not that it was stayed. I

n addition, the abstract incorrectly indicates that the defendant was sentenced more than a month after the date he was actually sentenced. We accordingly direct the trial court to amend the abstract to make these corrections. In addition, the sentencing minute order should be corrected to accurately reflect the sentence orally pronounced.

The corrected minute order from the bifurcated proceeding at which the trial court found the aggravating circumstances true does not reflect that the court found those circumstances true as to one of the counts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-188

People v. Wynn (2010) 184 Cal.App.4th 1210, 1221

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000629

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court imposed a $10,000 restitution fine under section 1202.4(b), that is no longer enforceable or collectible, and it imposed additional fines and fees that were not originally imposed and which came into effect after the defendant’s original sentencing. We modify the judgment by vacating the challenged fines and fees.

First Holding:

In 2021, the Legislature enacted SB (Stats. 2021 (2021-2022 Reg. Sess.), retroactively invalidating prison prior enhancements imposed pursuant to section 667.5(b), except those that were based on a conviction for a sexually violent offense. Once the court verifies that the current judgment includes such a sentencing enhancement, the court shall recall the sentence and resentence the defendant. Resentencing under section 1172.75 is not limited to striking the section 667.5(b), enhancement. Rather, the court must conduct a full resentencing.

Authority:

PEN 1172.75

People v. Green (2024) 104 Cal.App.5th 365, 368, 373

People v. Rogers (2025) 108 Cal.App.5th 340, 348, fn. 5

People v. Gray (2024) 101 Cal.App.5th 148, 163

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Garcia (2024) 101 Cal.App.5th 848, 855

Second Holding:

Our review of the imposition of fines and fees is de novo.

Authority:

People v. Arroyo (2016) 62 Cal.4th 589, 593 [de novo review in cases of statutory interpretation]

People v. Guillen (2013) 218 Cal.App.4th 975, 983 [authority of trial court to impose fine or fees turns on relevant statutory provisions and presents essentially an issue of law]

Third Holding:

Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, on the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. The defendant was resentenced in November 2024, weeks before the effective date of the amendment. But the amendment applies retroactively to his sentence. The section 1202.4 restitution fine, which was imposed over 10 years ago in 2003, must therefore be vacated.

Authority:

PC 1465.9

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

The statute authorizing the remaining fines and fees did not become effective until after the defendant’s conviction. Accordingly, the superior court was not authorized to impose these fines and fees on resentencing.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754

People v. Castillo (2010) 182 Cal.App.4th 1410, 1414

People v. Hayes (1989) 49 Cal.3d 1260, 1274 [A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise]

Abstracts and Minutes

Case 000628

Posted on by Gary McCurdy

Error and/or relief

GARY note: This is not a winning issue case, but is an example of an error in an abstract of judgment in which the abstract reflected a conviction less serious than actually sustained. While I doubt it was helpful to the defendant in this instance, I think it still provides yet another lesson in the importance of reviewing abstracts of judgment.

Holding:

The trial court’s minutes and abstract of judgment erroneously reflect that the defendant was convicted and sentenced on count 5 for the dismissed charge of false imprisonment by violence. The record indicates that the trial court struck the false imprisonment charge before trial and that the defendant was charged with and convicted of forcible rape in count 5, and that he was sentenced accordingly. The abstract of judgment must be corrected to reflect a conviction of rape by force or fear on count 5.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Mesa (1975) 14 Cal.3d 466, 471

Immigration, Standard of review

Case 000627

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his motion to vacate a conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available. However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Fourth Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute. The focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910

Fifth Holding:

There is a critical difference between being notified the plea may have immigration consequences and being told the plea will make one immediately deportable. When a noncitizen receives only the first advisement in a situation calling for the second, the advisement is insufficient. A failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533

Sixth Holding:

Deep, lifelong ties to United States is compelling evidence a noncitizen would reject plea leading to mandatory deportation. This desire is particularly strong where the noncitizen is an asylee. In addition to facing disruption of the most important relationships in the noncitizen’s life, an asylee must also fear returning to a place the asylee has an adjudicated reason to fear.

Authority:

People v. Rodriguez (2021) 68 Cal.App.5th 301, 325

People v. Padron (2025) 109 Cal.App.5th 950, 963

Sentencing

Case 000626

Posted on by Gary McCurdy

Error and/or relief

We vacate one of the three prior serious felony conviction enhancements, because it was not brought and tried separately from one of the others.

Holding:

Section 667 (a)(1) provides in relevant part that a person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction that includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.

The phrase “brought and tried separately” means that the underlying charges were formally distinct, from filing to adjudication of guilt. Because the evidence presented does not show that the two prior convictions that took place on the same day in 1990 in the same county were brought and tried separately, we vacate the prior serious felony enhancements based on the second conviction that the defendant admitted suffering.

Authority:

PEN 667(a)

People v. Wiley (1995) 9 Cal.4th 580, 593-595

In re Harris (1989) 49 Cal.3d 131, 136

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

People v. Heard (2022) 83 Cal.App.5th 608,

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Appellate Principles, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000624

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury regarding unlawful detention or unlawful arrest. The judgment is reversed. Because there was sufficient evidence that a properly instructed jury could have returned the same verdict, double jeopardy principles do not apply and the matter may be retried.

First Holding:

All criminal defendants have the right to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Thus, the trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.

A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.

Similarly, if the trial court decides to provide supplemental instruction to the jury during deliberation, we review de novo the legal accuracy of any supplemental instructions provided.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Parker (2025) 113 Cal.App.5th 1261, 1271

Second Holding:

Section 69 provides that every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law is punishable by a fine or by imprisonment. Similarly, section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent.

Authority:

PEN 69

PEN 148

People v. Hupp (2023) 96 Cal.App.5th 946, 950

In re A.L. (2019) 38 Cal.App.5th 15, 22

Third Holding:

The lawfulness of an officer’s conduct is an essential element of both offenses because there is no distinction between performing a duty and lawfully performing a duty, since an officer who is acting unlawfully cannot be said to be performing his or her duty. And the prosecution has the burden of proving the lawfulness of the officers’ conduct beyond a reasonable doubt. Thus, the lawfulness of the officers’ conduct is an essential element upon which the trial court had a sua sponte duty to properly instruct the jury.

Authority:

In re A.L. (2019) 38 Cal.App.5th 15, 25

People v. Southard (2021) 62 Cal.App.5th 424, 435

Fourth Holding:

To convict defendant of a violation of section 69 or 148, the prosecution was required to prove, and the jury was required to find, that officers were engaged in the lawful performance of their duties. The pattern jury instructions include definitions for various scenarios in which an officer can be considered engaged in a lawful performance of duty, including during a detention, an arrest without a warrant, and an arrest for a misdemeanor offense. (CALCRIM 2670.)

However, the trial court did not give any of these definitions to the jury. Nor did the trial court offer its own definition for the jury to consider. In essence, the trial court instructed the jury that it was required to find that the officers were engaged in a lawful performance of duty but provided no definitions or guidance to the jury regarding how to make this finding. This was clearly error.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 913 [Where a term or phrase has a special definition for purposes of a statute, the failure to define it for the jury is error.]

People v. Reyes (1992) 2 Cal.App.4th 1598, 1601 [Failure to define terms essential to an element of an offense is “equivalent to the omission of an element from the definition of the crime given to the jury.]

Fifth Holding:

The question of reasonable or probable cause is ordinarily one for the court and, where there are disputed facts to be resolved by a jury, the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.

Authority:

Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630

Sixth Holding:

Whether an offense has been committed in an officer’s presence is determined by whether the officer could testify to actual knowledge to every element of the offense.

Authority:

People v. Garrison (1961) 189 Cal.App.2d 549, 557

In re Alonzo C. (1978) 87 Cal.App.3d 707, 714

People v. Welsch (1984) 151 Cal.App.3d 1038, 1044

Seventh Holding:

When the jury is misinstructed on an element of the offense reversal is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. In such cases, a reviewing court must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. Here, we cannot say with any confidence that the jury would have reached the same verdict had it been properly instructed in this case.

Authority:

People v. Wilkins (2013) 56 Cal.4th 333, 348

People v. Merritt (2017) 2 Cal.5th 819, 831

Eighth Holding:

It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. However, a settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence.

Thus, even where reversal is required based on instructional error, an appellant’s arguments regarding insufficiency of the evidence should be considered to determine whether retrial is barred by double jeopardy principles. The inquiry at this stage is to determine whether, if properly instructed, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852-853

People v. Wetle (2019) 43 Cal.App.5th 375, 388

People v. Hallock (1989) 208 Cal.App.3d 595, 608-609;

In re Martinez (2017) 3 Cal.5th 1216, 1224 [Where instructional error occurs, retrial is barred if defendant can show there was insufficient evidence to support a conviction even when the law is properly construed.]

Ninth Holding:

While an offense may be considered a “wobbler” punishable as either a misdemeanor or felony, its status as a wobbler has no bearing on the lawfulness of a warrantless arrest. This is because the commission of a wobbler is a felony at the time it is committed and remains deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court.

Authority:

People v. Moomey (2011) 194 Cal.App.4th 850, 857-858

People v. Statum (2002) 28 Cal.4th 682, 685

Appellate Principles, Sentencing, Standard of review, Statutory interpretation

Case 000623

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was not eligible for recall of sentence under section 1172.75 because he is serving a term of life without the possibility of parole (LWOP). The prohibition applies only to those who are service an LWOP sentence as a result of conviction of specified sex offenses. It does not apply to those serving an LWOP sentence for other offenses. The language of the exclusion is conjunctive, not disjunctive. [Gary note: REVIEW HAS BEEN GRANTED IN THIS CASE AND HELD PENDING DIXON.]

First Holding:

As of January 1, 2025, 1172.75(f) provides that an individual who has been convicted of a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section.

Authority:

PEN 1172.75(f)

Second Holding:

This is a question of statutory interpretation that we review de novo.

Authority:

Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40

Third Holding:

When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation. We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

Fourth Holding:

Subsequent to defendant’s original sentencing, SB 136 (2019–2020 Reg. Sess.) amended section 667.5(b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, the Legislature added section 1172.75, which provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid. It also provided a process for recall of sentences rendered invalid and resentencing of affected defendants.

Authority:

PEN 1172.75

Fifth Holding:

Resentencing pursuant to section 1172.75 entitles a defendant to a full resentencing, including application of the rules of the Judicial Council and application of any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Resentencing pursuant to section 1172.75 must “result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In no circumstance can resentencing result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3 [where section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors]

Sixth Holding:

Effective January 1, 2025, SB 285 amended section 1172.75 to add subdivision (f). Subdivision (f) provides: “Commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c) [of section 1172.75], is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.”

Authority:

PEN 1172.75(f)

Seventh Holding:

The ordinary and usual usage of “and” is as a conjunctive, meaning “an additional thing, “also” or “plus.” By contrast, use of the word “or” in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. But the word “and” is not always to be taken conjunctively. It is sometimes, in a fair and rational construction of a statute, to be read as if it were “or,” and taken disjunctively.

Thus, courts will sometimes substitute “or” for “and,” and vice versa, when necessary to accomplish the evident intent of the statute, but doing so is an exceptional rule of construction. Thus, for example, a court may substitute “or” for “and” to correct a drafting error where it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body. Additionally, a court may substitute “or” for “and” to avoid a construction of the statute that would make some words surplusage.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 990–991

In re C.H. (2011) 53 Cal.4th 94, 102–103, superseded by statute on another ground as stated in In re Edward C. (2014) 223 Cal.App.4th 813, 824

(GARY NOTE: AS CAN BE READ IN THE SIMILAR CASE THAT WAS PUBLISHED THIS DATE, the court engaged in examining how the Legislature used “or” in other parts of the section where “or” was clearly intended, and “and” similarly. It was clear to this court that the Legislature was aware of the difference and that it intended to mean exactly what it said–the exclusion applies to a person who was sentenced to LWOP because of specified sexual offenses. The legislative history revealed that the amendment was in response to the impact of section 1172.75 on the sentence of a notorious defendant convicted of murder and sexual offenses for which he received death sentence several decades earlier. It also noted Dixon (in which review has been granted), which concluded that nothing in section 1172.75 excluded individuals under a judgment of death.

(People v. Dixon (2025) 112 Cal.App.5th 236, 247, review granted Oct. 22, 2025, S292223 The issues on review in the Supreme Court in Dixon are described as: (1) May a superior court modify a death judgment under the recall and resentencing procedure in Penal Code section 1172.75? (2) Did the Court of Appeal err in holding that the exclusivity provision of Penal Code section 1509 precludes modification of a death judgment under Penal Code section 1172.75? (3) Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

(People v. Robinson (2026) 120 Cal.App. 5th 516 (F089332, filed 5/8/2026) but review was granted in the published decision on 7/16/26, granted and held pending Dixon S292223)

Equal protection, Probation Parole PRCS, Standard of review

Case 000622

Posted on by Gary McCurdy

Error and/or relief

Defendant, age 23 at the time of the offense, was sentenced to life without the possibility of parole (LWOP). He sought a Franklin hearing to be able to present evidence that could be considered as mitigating factors related to his youth at the time of the crime in the event there is ever a parole hearing. The trial court denied the motion to conduct the hearing, on the basis that LWOP inmates will never be considered for parole. Reversed. We cannot determine whether the basis of his conviction would render him eligible even if the reasoning in Briscoe regarding a violated of equal protection is sound. We remand the matter to allow defendant to establish he is entitled to a Franklin hearing.

First Holding:

A Franklin hearing permits parties to preserve evidence relevant to a future youthful offender parole hearing under section 3051. Certain persons are, however, categorically ineligible for youth offender parole hearings, including cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age.

Authority:

In re Cook (2019) 7 Cal.5th 439, 458-459

People v. Franklin (2016) 63 Cal.4th 261

People v. Hardin (2024) 15 Cal.5th 834, 843

Second Holding:

California’s youth offender parole statute offers opportunities for early release to certain persons who are incarcerated for crimes they committed at a young age. To this end, section 3051 requires the Board of Parole Hearings to hold a parole hearing for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of the controlling offense. The minimum number of years of incarceration before eligibility was 15, 20, or 25 years, depending on the length and nature of the sentence imposed.

Authority:

PEN 3051

People v. Hardin (2024) 15 Cal.5th 834, 843

Third Holding:

The court in Briscoe concluded, notwithstanding Hardin, section 3051 violates equal protection as applied to youth offenders who were convicted as a major participant who acted with reckless indifference to human life. Defendant may have been so convicted and therefore might be entitled to relief under section 3051. The trial court consequently erred in summarily denying defendant’s motion. Without taking a position on the correctness of Briscoe, we remand with directions to allow defendant the opportunity to demonstrate his eligibility for a Franklin hearing.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 485, 494

Fourth Holding:

As a result of changes in the law regarding the liability of persons who were not the actual killer, a person may now be found guilty of murder if the person was a major participant in the felony and acted with reckless indifference to human life as described in section 190.2(d). Section 190.2(d) is the section describing a special circumstance under which a person may be punished by death or LWOP.

Thus, a person may be convicted simply of first degree murder as a major participant in the underlying felony who acted with reckless indifference to human life and be sentenced to either 25 years to life (the sentence for first degree murder without special circumstances) or LWOP (the sentence for the same act but in which the special circumstance was alleged that the defendant was a major participant in the underlying felony who acted with reckless indifference to human life).

Briscoe concluded that section 3051 purports to include the defendants convicted of the same behavior and received a sentence of 25 years to life, but to exclude those for whom the special circumstance describing the same behavior was alleged and found true and an LWOP sentence was imposed.

Briscoe concluded that section 3051 improperly denied equal protection under those circumstances, and that such individual should be eligible for consideration under section 3051 even if the sentence was LWOP.

Authority:

People v. Briscoe (2024) 105 Cal.App.5th 479, 494

Fifth Holding:

The equal protection clause of the Fourteenth Amendment to the United States Constitution provides that no state may deny to any person within its jurisdiction the equal protection of the laws. At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.

The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. For the classification at stake here, based on a person’s criminal sentence, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.

A court applying this standard finds a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.

We analyze equal protection claims de novo

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 847

People v. Briscoe (2024) 105 Cal.App.5th 479, 487

Sixth Holding:

Hardin considered that it does not violate equal protection for section 3051 to apply to those sentenced to LWOP who committed the offense before they were 18 years old but not apply to those sentenced to LWOP for crimes committed as an adult.

The defendant Hardin did not demonstrate that the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder, even as it has granted youth offender hearings to young adults convicted of other offenses.

But the court made this conclusion without foreclosing the possibility of other as-applied challenges to the statute.

Authority:

People v. Hardin (2024) 15 Cal.5th 834, 838-839