Author Archives: Gary McCurdy

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying 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.

Authority:

PEN 1172.75(d)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

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

Abstracts and Minutes

Case 000932

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment against the defendant contains a clerical error that must be corrected. It states the trial court imposed a restitution fine of $2,800 under Penal Code section 1202.4(b). The reporter’s transcript of the sentencing court’s oral pronouncement, however, states the fine was $280.

We direct the trial court to amend the abstract of judgment to reflect the correct amount.

Holding:

Conflicts between the oral pronouncement of judgment found in the reporter’s transcript and the abstract of judgment found in the clerk’s transcript are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise. An abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4(b). Courts may correct clerical errors at any time.

Authority:

In re P.A. (2012) 211 Cal.App.4th 23, 30, fn. 4

People v. Gonzalez (2012) 210 Cal.App.4th 724, 744

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

People v. Hong (1998) 64 Cal.App.4th 1071, 1080

Abstracts and Minutes, Fines and fees, Sentencing

Case 000931

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment fails to list the imposition of the restitution fine that was ordered for the misdemeanor conviction. It must be corrected.

(Gary note: Yep, not a win, but another example of errant abstracts.)

First Holding:

Where a defendant has been convicted of both a misdemeanor and a felony, it is proper for the court to impose separate restitution fines. The parole revocation restitution fine under section 1202.45 should match the portion of the restitution fine associated with the felony conviction to which a period of parole applied.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 546-548

Second Holding:

The abstract of judgment is missing the $150 restitution fine imposed on the misdemeanor count. We will direct the trial court to prepare an amended abstract of judgment including this additional restitution fine. Because the trial court’s minute order following sentencing already includes this amount, no amendment to that document is required.

(Gary note: The court did not cite authority for its order to correct the abstract of judgment, so I have listed some cases that the court could have drawn from.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing

Case 000930

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

The court awarded 42 days of actual custody credit spent between the date of his conviction and the date of sentencing, but apparently did not recognize that he spent one more day in custody before posting bail the day he was arrested. Presentence actual custody credits include the day of arrest, and any day spent even partially in custody counts for a full day of credit.

The defendant is entitled to a day of actual custody credit for the time that he spent in jail on the day of his arrest. Accordingly, we will order the judgment modified to reflect that the defendant is entitled to 43 days of actual custody credits and six days of conduct credits. (Conduct credit is limited to 15% because he was convicted of a violent felony, and section 2933.1 therefore applies.)

Authority:

PEN 2933.1

People v. Rajnayagam (2012) 211 Cal.App.4th 42, 48

People v. Valdes (2020) 53 Cal.App.5th 953, 955

Sentencing

Case 000929

Posted on by Gary McCurdy

Error and/or relief

The defendant’s presence at his resentencing hearing was not waived. We therefore reverse and remand to the trial court for resentencing in accordance with the defendant’s constitutional right to be present.

First Holding:

A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by [Penal Code] sections 977 and 1043. This right extends to all critical stages of the criminal prosecution and includes sentencing and resentencing.

Authority:

Cal. Const. art. I, sec. 15

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Second Holding:

The right to be present may be waived. However, pursuant to section 977(b)(1) and (2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he or she executed a written waiver of his or her right to be present or the waiver was properly entered orally on the record.

Section 977 lays out specific requirements for the waiver to be held valid. The right to be present at the imposition of sentence includes the right to be present at a resentencing hearing because the trial court has discretion to reconsider the entire sentence on remand for resentencing.

Authority:

People v. Concepcion (2008) 45 Cal.4th 77, 82

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Third Holding:

When errors involving a defendant’s federal constitutional rights are implicated, the standard set forth in Champman applies and the error is prejudicial and requires reversal unless we can conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding.

Authority:

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

People v. Velasco, 97 Cal.App.5th 663, 674

Fourth Holding:

On the facts before us, we are unable to conclude that the error in conducting a resentencing hearing in the defendant’s absence without a valid waiver of his presence was harmless beyond a reasonable doubt. As in Velasco and Cutting, because the defendant was not physically present at resentencing, he was unable to present any of these types of argument. Nor could he directly address the court or aid his attorney, perhaps by providing new and updated information or circumstances justifying a more lenient sentence.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [resentencing court may consider any pertinent circumstances which have arisen since the prior sentence was imposed]