Author Archives: Gary McCurdy

Effective assistance of counsel, Sentencing, Standard of review

Case 000573

Posted on by Gary McCurdy

Error and/or relief

A remand for resentencing is required because the defendant received ineffective assistance of counsel by reason of defense counsel’s failure to raise his mental health issues as a mitigating factor at the time of sentencing, despite there having been considerable evidence introduced during pretrial proceedings that the defendant had mental health issues, including a finding under section 1372 that he was incompetent to stand trial, whereupon he was committed to a state hospital until his competency was deemed restored three months later.

First Holding:

Defense counsel should have pointed out that there was evidence suggesting that, at least at the time of the offense, he was struggling with mental health issues. Under rule 4.423, mental illness is a mitigating factor at sentencing. Section 1385(c)(5) defines mental illness as a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

That subdivision further provides that a court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.

The Diagnostic and Statistical Manual of Mental Disorders (5th ed. text rev. 2022) defines an overarching new category of substance use disorders—with the specific substance used defining the specific disorders. It states that the essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.

Authority:

Rules of Court, rule 4.423

PEN 1385(c)(5)

Second Holding:

Despite considerable evidence, defense counsel remained silent at the sentencing hearing when the trial court remarked that no mitigating circumstances had been presented.

To demonstrate ineffective assistance of counsel, the defendant must show counsel’s performance was deficient and resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

We can conceive of no reasonable tactical purpose for defense counsel’s failure to argue rule 4.423(b)(2) and (b)(4) applied in this case. We further conclude defense counsel’s omission was prejudicial. For the trial court to impose the upper term the court was required to find that there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term.

Had defense counsel raised the applicability of rule 4.423(b)(2) and (b)(4), there is a reasonable probability the court would have balanced the mitigating factors against those in aggravation and would not have imposed the upper term.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Centeno (2014) 60 Cal.4th 659, 675–676 [where there was no conceivable reasonable tactical purpose for defense counsel’s omission, defense counsel’s failure to object to prosecutorial misconduct was ineffective]

Third Holding:

Defense counsel inexplicably made no arguments regarding any mitigating factors” when arguing the Romero motion to strike his prior convictions. On remand, the defendant is free to make the arguments he believes counsel should have made.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 [both aggravating and mitigating circumstances are relevant considerations in determining whether to strike a prior strike conviction]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [on remand for resentencing, full resentencing is appropriate]

People v. Ramirez (2019) 35 Cal.App.5th 55, 64 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme]

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000572

Posted on by Gary McCurdy

Error and/or relief

The gang and gang-related firearm enhancements must be vacated in light of the amendments under AB 333.

First Holding:

AB 333, which amended section 186.22, was enacted in 2021 and became effective on January 1, 2022. The amendments AB 333 made to section 186.22 apply retroactively to the defendant’s case. The substantive amendments to section 186.22 require us to vacate the jury’s findings on the gang allegations and gang-related firearm allegations. We remand the matter to afford the prosecution the opportunity to retry these allegations, should it choose to do so.

Authority:

PEN 186.22

People v. Burgos (2024) 16 Cal.5th 1, 7

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

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

Second Holding:

AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

PEN 186.22

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

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Third Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error. On this record, reversal of the gang enhancements is required, and the prosecution must be given the opportunity to establish the additional elements on remand, should it choose to do so.

Authority:

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

People v. Eagle (2016) 246 Cal.App.4th 275, 280

Fourth Holding:

In addition to amending section 186.22, AB 333 added section 1109, which requires that the trial of a gang enhancement charged under section 186.22(b), be bifurcated from and follow trial of the underlying offenses when requested by the defendant. AB 333’s enactment of section 1109 became effective almost two years after defendant’s trial. But section 1109 is not retroactive and therefore does not apply.

Authority:

PEN 1109

People v. Ramos (2022) 77 Cal.App.5th 1116, 1129 [disapproved of on other grounds in People v. Burgos (2024) 16 Cal.5th 1, at p. 31]

People v. Burgos (2024) 16 Cal.5th 1, 9

Fifth Holding:

The same rationale applies to the jury’s findings on the section 12022.53(e)(1) firearm allegations, which require findings under section 186.22(b). Section 12022.53(e)(1) provides for enhanced firearm penalties for any person who is a principal in the commission of an offense if the prosecution pleads and proves that (1) the person violated section 186.22(b), and (2) any principal in the offense committed a firearm violation specified in section 12022.53(b), (c), or (d).

Here, the jury found three section 12022.53(e)(1) allegations true as to the defendant. Because this enhancement depends on a finding pursuant to section 186.22(b), the changes to section 186.22 made by AB 333 require that the true findings on these allegations also be vacated and the matter remanded to the trial court.

Authority:

PEN 12022.53(e)(1)

People v. Lopez (2021) 73 Cal.App.5th 327, 346-348

Equal protection, Fines and fees, Sentencing

Case 000571

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing fees regardless of the defendant’s inability to pay. We strike the fees.

Holding:

In Kopp, our Supreme Court recently held that, if a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1). Here, defendant argued he had not been working and was therefore unable to pay any fines and fees, and the trial court agreed as to the court operations and court facilities assessments.

However, instead of waiving these fees as a court would do for an indigent civil litigant, the trial court imposed and stayed the ancillary costs. Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment. No similar differences justify denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver. While the trial court did not have the benefit of our Supreme Court’s recent decision in Kopp at the time it imposed fines and fees, the order nonetheless violated defendant’s equal protection rights, and we must strike the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Abstracts and Minutes

Case 000570

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected, as the fines and fees it lists were not ordered by the court.

Holding:

At sentencing, the trial court imposed the prison sentence and awarded custody credits, but did not impose any fines or fees on the record. The abstract of judgment, however, lists a $300 restitution fine, a $300 parole revocation fine, suspended unless parole is revoked, a $40 court operations fee, and a $30 criminal conviction assessment fee. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

If the clerk includes fines in the court’s minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment.Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. Because the trial court did not orally impose any fines or fees, we order the court to prepare a corrected abstract of judgment striking the fines and fees.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Clark (2021) 67 Cal.App.5th 248, 261

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

Abstracts and Minutes, Duty of the court, Sentencing

Case 000569

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing on a prior strike where the defendant did not waive a trial and did not admit the prior. Errors in the minute order must be corrected to reflect that a sentence on one count was 364 days in the county jail, not 365 days.

First Holding:

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The prosecution bears the burden of proving a strike prior allegation beyond a reasonable doubt.

Authority:

PEN 1158

People v. Frierson (2017) 4 Cal.5th 225, 233

Second Holding:

This procedure was not followed here. While the defendant expressed his intention to admit the strike prior, the record shows he never actually did so. Nor did a jury or the trial court find beyond a reasonable doubt that the defendant suffered the alleged strike prior. Accordingly, we must reverse the true finding as to the strike prior allegation and remand for the trial court to hold a hearing on whether the defendant elects to admit the strike prior allegation or proceed to trial on it and hold further proceedings accordingly.

Authority:

People v. Strike (2020) 45 Cal.App.5th 143, 154 [when true finding on strike prior allegation is reversed, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation]

Third Holding:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. Count 2 is subject to this 364-day limit on imprisonment. Yet here, the Felony Minutes—Pronouncement of Judgment dated specify the defendant’s term of imprisonment for count 2 to be 365 days. Under section 18.5, this length of imprisonment is improper. Accordingly, on remand we direct the trial court to amend the Felony Minutes—Pronouncement of Judgment to reflect a term of imprisonment of 364 days on count 2.

[GARY Note: the court listed no authority for directing the correction of the minute order, so I have listed some cases that it could have relied on.]

Authority:

PEN 18.5

People v. Zackery (2007) 147 Cal.App.4th 380, 387-38

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

Abstracts and Minutes, Duty of the court, Juveniles, Sentencing

Case 000568

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in not declaring whether it found the minor’s wobbler offense (section 29610) to be a misdemeanor or a felony.

First Holding:

An offense under Penal Code section 29610 is a wobbler punishable by imprisonment or jail.

Authority:

In re D.D. (2015) 234 Cal.App.4th 824, 829

Second Holding:

Welf. and Inst. Code section 702 requires the juvenile court to declare on the record at a hearing before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration. The juvenile court’s failure to make this declaration as to each wobbler offense is error. A juvenile court’s failure to comply with section 702’s express declaration requirement must be corrected on remand unless the record as a whole establishes that the juvenile court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Third Holding:

The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment. Although the minute order reflects that the court declared the offense in count 1 a felony, the reporter’s transcript of the oral pronouncement reflects no such declaration. The latter controls.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340

Duty of the court, Jury trial, Standard of review

Case 000567

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. We reverse his convictions on this basis and remand for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right. We instead examine the totality of circumstances.

Authority:

U.S. Const., 6th Amend.

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial]

People v. Daniels (2017) 3 Cal.5th 961, 992

Second Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Third Holding:

The record here does not affirmatively show that the defendant’s jury trial waiver was knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay: that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.

But the advisement omitted that a jury consists of 12 people, that jurors are selected from a larger pool of prospective jurors in a process in which he could participate through counsel, or that a jury verdict must be unanimous––meaning that the prosecution would have to convince all 12 jurors of his guilt beyond a reasonable doubt, rather than a single judge. Nothing in the record shows the defendant had ever been advised of these omitted mechanics. He had no prior criminal history, and thus no prior occasion to receive such advisements from a court or otherwise. Nor does the record show a written waiver form was used.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 167-168

People v. Weaver (2012) 53 Cal.4th 1056, 1070 [though not required, written waiver form is helpful to establish the adequacy of a jury waiver]

People v. Jones (2018) 26 Cal.App.5th 420

Sentencing

Case 000566

Posted on by Gary McCurdy

Error and/or relief

It was error to rely on the same facts to impose an enhancement and the upper term.

First Holding:

Generally, error occurs when the same facts are considered both to aggravate the base term and to impose an enhancement.

Authority:

1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

People v. Scott (1994) 9 Cal.4th 331, 350

Second Holding:

Where there is an improper dual or overlapping use of facts, remand is required if it is reasonably probable the defendant would obtain a more favorable result absent the error.

Authority:

People v. Barker (1986) 182 Cal.App.3d 921, 941

Third Holding:

A trial court may impose an upper term sentence based on a single, properly proven aggravating circumstance only, if, in the court’s discretion, that circumstance alone justifies a sentence exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 764

Appellate Principles

Case 000565

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This is a case in which no relief was granted the defendant, because his matter did not give rise to an appealable order. It is included in these summaries because it contains important principles on appealability.]

First 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

Second Holding:

Section 1237(b), authorizes criminal defendants to appeal from any order made after judgment, affecting the substantial rights of the party. The type of claim raised in the trial court determines whether a postjudgment order affects the substantial rights of a party. An appealable order must be validly issued, and a sentencing order cannot be valid if the trial court lacks jurisdiction to issue it. Therefore, a trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b).

Authority:

PEN 1237(b)

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

People v. King (2022) 77 Cal.App.5th 629, 639

Third Holding:

The court determined that neither provision cited by the defendant, as amended, conferred postconviction jurisdiction on the court to resentence the defendant, whose sentence was final in 2017. The trial court’s order, which dismissed the defendant’s motion because the court lacked jurisdiction to grant him relief under those provisions, therefore, did not affect the defendant’s substantial rights. It is, therefore, not appealable under section 1237(b). Because the order is not appealable, we must dismiss the appeal.

Authority:

People v. Fuimaono (2019) 32 Cal.App.5th 132, 135

People v. Faustinos (2025) 109 Cal.App.5th 687, 693-694

People v. King (2022) 77 Cal.App.5th 629, 634, 642

Appellate Principles, Sentencing

Case 000564

Posted on by Gary McCurdy

Error and/or relief

This is another case where no relief was granted, but it contains important information on how an otherwise nonappealable order might become appealable.

The defendant filed a motion for resentencing under section 1172.1. While a defendant may invite the court under that section to resentence him, he has no right to make a motion under that section. (It can be triggered by the custodial officials or the prosecutors or on the court’s own motion, however.)

Had the court simply declined to respond to the defendant’s “motion,” or simply denied it outright, the defendant would have no right to appeal. The court, however, considered the motion and denied it on its merits. This created a substantial right for the defendant and permitted appellate review. We conclude the trial court evaluated and denied defendant’s petition on the merits, thus affecting defendant’s substantial rights, and thus the denial is an appealable order.

First 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

Second Holding:

Section 1172.1(a)(1), effective January 1, 2024, provides that the trial court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Section 1172.1(c) expressly states, however, that a defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond. Thus, a defendant who chooses to file an unauthorized request for resentencing has no right to a ruling.

Authority:

PEN 1172.1

People v. Roy (2025) 110 Cal.App.5th 991, 998,

Third Holding:

The second sentence in section 1172.1(c) means that a defendant does not have a substantial right at stake when they request recall and resentencing.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1045

People v. Roy (2025) 110 Cal.App.5th 991, 998-999

People v. Faustinos (2025) 109 Cal.App.5th 687, 696

Fourth Holding:

Where the trial court undertakes to make a resentencing decision on the merits after a defendant has filed a petition pursuant to section 1172.1, the defendant is entitled to an appeal. Here, the trial court effectively evaluated and denied defendant’s petition on the merits. After defendant filed his petition, the trial court set a status conference and a briefing schedule.

When the People asked the trial court whether it would consider recalling defendant’s sentence, the trial court directed the People to address the merits. Additionally, the trial court invited the victims to be heard at a hearing, it considered the parties’ arguments, and it considered whether resentencing defendant would be in the interest of justice. In short, the trial court evaluated and denied defendant’s petition on the merits, thus affecting his substantial rights.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1172-1173

People v. Olea (2025) 115 Cal.App.5th 889, 902

Fifth Holding:

Defendant claims the enactment of Evidence Code section 352.2 constitutes such a change in sentencing laws. However, he offers no authority or reasoned argument to support his claim. As a result, we may deem the claim forfeited.

Authority:

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

People v. Stanley (1995) 10 Cal.4th 764, 793

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality

Authority:

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

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]

Amelioration, Probation Parole PRCS, Sentencing

Case 000562

Posted on by Gary McCurdy

Error and/or relief

The trial court denied a petition by defendant for resentencing under what is now Penal Code section 1172.75 because, by the time the trial court conducted a resentencing hearing, the defendant had been released on parole. This was error, and the matter is remanded for resentencing.

First Holding:

Under section 1172.75, unless imposed for certain specified sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is invalid. Section 1172.75 also provides for resentencing of individuals upon whom now-invalid prison prior enhancements under section 667.5 were imposed. This resentencing proceeds in three stages.

The first stage, which involves correctional officials, is identification: Section 1172.75 requires state and county correctional officials to identify those persons in their custody currently serving a term for a judgment that includes [a now-invalid prison prior] enhancement and inform the sentencing court.

The second stage, which is conducted by the courts, is verification: The sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement that is now invalid.

The third stage, which is also conducted by the courts, is actual resentencing: If a defendant has been identified as eligible, and a court has verified eligibility, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 does not require a defendant who is incarcerated and eligible at the beginning of the resentencing process under the statute to remain incarcerated until actual resentencing.

Authority:

People v. Washington (2026) 117 Cal.App.5th 1057

Third Holding:

Because section 1172.75 requires correctional officials to identify persons in custody serving a term, and a term is ordinarily understood to be time served in prison, only defendants who are incarcerated at the time of identification are eligible for resentencing under section 1172.75.

However, at the verification stage section 1172.75 requires courts to determine not that the identified persons are in custody serving a term, but rather that the current judgment includes a sentencing enhancement described in section 1172.75(a).

Moreover, because section 1172.75 expressly recognizes that there may be a substantial time lag between the identification and resentencing stages, it can be concluded that the Legislature intended the court-related criterion for resentencing eligibility to operate independently from earlier conditions applicable at the correctional official identification stage and did not include continued incarceration as a requirement at the verification stage.

Resentencing an individual who is on parole at the time of resentencing is not an idle act, because resentencing may reduce or terminate the period of parole.

Authority:

People v. Jefferson (1999) 21 Cal.4th 86, 95

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1067

Fourth Holding:

We also do not reach, and express no view on, whether a parolee serving an indeterminate sentence is entitled to termination, or reduction in the period, of parole if upon resentencing the sentence is reduced.

Authority:

In re Lira (2014) 58 Cal.4th 573, 578-582

In re Bush (2008) 161 Ca1.App.4th 133, 140-143