Author Archives: Gary McCurdy

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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.

Authority:

PEN 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

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

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

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

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

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

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

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

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Eighth Holding:

The Sixth Amendment is violated 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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 000967

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his petition for relief under section 1172.6 of the Penal Code after an evidentiary hearing. The trial court’s finding that appellant was a direct aider and abettor for purposes of implied malice murder is not supported by substantial evidence.

We reverse the denial and remand this matter with directions to vacate appellant’s murder conviction and to resentence him in accordance with section 1172.6(e).

First Holding:

The Legislature enacted SB 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine.

The legislation bars murder convictions premised on any theory of imputed malice unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. S

pecifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

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

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to section 188 and 189. If a prima facie case is made—that is, if the petitioner is not ineligible as a matter of law—the court must issue an order to show cause and hold an evidentiary hearing.

At the evidentiary hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under the law as amended by the changes to sections 188 and 189.

If the prosecution does not meet this burden, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence is not greater than the initial sentence.

Where the murder was charged generically, and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Coley (2022) 77 Cal.App.5th 539, 543

People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 [What matters for purposes of subdivision (e)’s requirement that the underlying felony or target offense was not charged is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated]

Third Holding:

We review the trial court’s findings for substantial evidence.

Authority:

People v. Vargas (2022) 84 Cal.App.5th 943, 951

Fourth Holding:

Direct aiding and abetting remains a valid theory of murder liability after SB 1437. It is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.

In the context of implied malice, the actus reus required of the perpetrator is the commission of the life-endangering act.

For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 546

People v. Reyes (2023) 14 Cal.5th 981, 990–991

Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022

Fifth Holding:

The record here may support the finding that appellant had the requisite mens rea, but it does not show the actus reus required for direct aiding and abetting.

The co-defendant perpetrator shot the victim in the chest to free the defendant from the victim’s grasp.

It is too far of a stretch to consider the defendant’s circumstance of being physically restrained to be an act of his that aided the commission of the perpetrator’s fatal shooting, even if the defendant wanted the perpetrator to shoot the victim so he could be freed. Nothing in the record shows that the defendant told the perpetrator to shoot, or acted at all to facilitate the shooting—aside from his planning and participation in the underlying robbery.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712 [An aider and abettor must do something and have a certain mental state]

Sixth Holding:

Although direct aiding and abetting liability has been extended to cases where someone has a legal duty to act but fails to do so, we are unaware of any such case outside the context of parent-child or caregiver relationships.

Authority:

People v. Werntz (2023) 90 Cal.App.5th 1093, 1101

People v. Collins (2025) 17 Cal.5th 293, 312

People v. Zemek (2023) 93 Cal.App.5th 313, 339

Seventh Holding:

We do not see fit to remand for reconsideration of the defendant’s liability for felony murder because the trial court expressly rejected that possibility.

We instead remand for the trial court to vacate appellant’s murder conviction, and to redesignate the conviction as the underlying felony or felonies consistent with section 1172.6(e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 477 [declining to remand where it would be an idle act as shown by the trial court’s statement]

People v. Tyus (2026) 120 Cal.App.5th 798, 817 [reversing trial court’s decision to simply dismiss the case after vacating a manslaughter conviction from a plea; the trial court was required to redesignate the conviction as an underlying felony]

Discretion, Sentencing

Case 000966

Posted on by Gary McCurdy

Error and/or relief

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654.

Holding:

The great bodily injury enhancement in connection with the kidnapping of the victim and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654. We remand because the trial court has discretion where an act that is punishable in different ways by different provisions of law to punish a defendant under either of such provisions.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 351

Abstracts and Minutes, Duty of the court, Sentencing

Case 000965

Posted on by Gary McCurdy

Error and/or relief

(Gary note: Alas, this is yet another “not a win.” But it is yet another instance of an error in the abstract of judgment.)

The defendant was resentenced under section 1172.75. The abstract of judgment does not accurately reflect the oral pronouncement and must be corrected. Further, the trial court failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing.

First Holding:

The amended abstract of judgment fails to reflect that the trial court sentenced the defendant to two consecutive 25-year to life terms for burglary and robbery, plus a three-year enhancement on the robbery count under section 12022.7, a stayed, three-year enhancement on the burglary count under section 12022.7, and concurrent five-year enhancements under section 667(a) on both the robbery and burglary counts. We will direct the trial court to correct this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts 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.]

Second Holding:

The trial court also failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing. A court that modifies a defendant’s sentence must recalculate and credit against the modified sentence all actual time the defendant has already served, whether before or since he was originally committed and delivered to prison custody. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 41 [under section 2900.1, the trial court, having modified defendant’s sentence, should have determined all actual days defendant had spent in custody and awarded such credits in the new abstract of judgment]

People v. Sek (2022) 74 Cal.App.5th 657, 673

Sentencing

Case 000964

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a win, but has section 654 principles of importance.)

There are some sentencing errors related to counts 2, 3 and 4. The court imposed one-third the midterm on each of counts 2 and 3, which it stayed under section 654, and it imposed a concurrent one-third the midterm on count 4.

It was error to impose and stay sentences under section 654 based on 1/3 the middle term, and it was error to impose a concurrent term at 1/3 the middle term.

First Holding:

If a court makes multiple terms concurrent, they must all be full terms, not one-third the midterm. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling.

Authority:

PEN 669

PEN 1170.1(a)

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

Second Holding:

Section 654 prohibits multiple punishment where the same act or omission or a course of conduct deemed to be indivisible in time results in multiple statutory violations. A trial court must determine whether to stay execution of a sentence under section 654, thereby avoiding multiple punishment, before deciding whether to impose concurrent or consecutive sentences.

If the court decides to stay a sentence, it must impose and stay execution of the sentence on that count with no determination made as to whether it is consecutive or concurrent. This is because a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.

Authority:

Cal. Rules of Court, rule 4.424

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

Third Holding:

In addition, the one-third-the-midterm rule of section 1170.1(a) only applies to a consecutive sentence, not a sentence stayed under section 654. When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the defendant’s punishment is commensurate with his criminal liability if the stay is lifted.

Accordingly, the trial court must impose a full term on any count that it stays under section 654. If the count for which sentence is not stayed is reversed or otherwise undone, imposition of sentence on the stayed count is preserved.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Fourth Holding:

Here, the transcript of the sentencing hearing, the court’s sentencing minute order and the abstract of judgment reflect the court imposed unauthorized terms of one-third the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction on review.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1295

Gary Bonus Note:

(In the last sentence of what I have called First Holding, the court states that a concurrent term begins to run when it is imposed. But there is a special provision under Penal Code section 1203.2a (no parentheses there) that every attorney should practically memorize. It is limited to cases where a defendant has been placed on probation in one case, then later is committed to state prison on another case.  Section 1203.2a can provide a benefit.

(Read it carefully. It appears to require proper steps by the defendant, though Hoddinott seems to hold otherwise. Why take the chance? Just do it right, and you won’t risk the Supreme Court changing its mind, right?

(But if events happen as described in section 1203.2a, the court has a limited time during which it has jurisdiction to act on the probation case, and failure to act within the limited time deprives the court of all jurisdiction to act on the probation case.

(Assuming the court acts timely and revokes probation and imposes a concurrent sentence, it will be deemed to have started from either the date probation was granted or from the date he was received in prison on the new offense.  In other words, far earlier than the date the court imposes execution of sentence on the probation revocation.  Section 1203.2a is designed to serve as an incentive for defendants to take care of outstanding cases when they are sent to prison.

(Again, read it carefully, and guide your client into fulfilling all the steps that serve to invoke section 1203.2a. Of course, if the court chooses to impose the sentence consecutively (assuming a timely action), the consecutive term will be served in a normal fashion.

(But section 1203.2a carries the possibility that untimely action by the court will deprive it of jurisdiction OR that, if the court is so inclined, a concurrent sentence starts at a much earlier time than the order revoking probation and committing the defendant to prison.

(An excellent analysis appears in In re Hoddinott (1996) 12 Cal.4th 992. Section 1202.2a requires the probation officer to report to the court whenever it learns a probationer has been committed to state prison. If the prisoner makes a request in conformity with the opening paragraph of the section, or if the probation learns about the new commitment from some other source, the probation officer must notify the court within 30 days. And here is Hoddinott’s summary of what happens if the probation officer or the court does not act timely:

(“In summary, we hold section 1203.2a’s final paragraph describes two events that will oust the court of jurisdiction: the probation officer’s failure to report the commitment to the court (in accord with paragraph two’s requirements) and the court’s failure to impose sentence within the time periods specified in the third paragraph. The probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.”)

Amelioration, Plea bargains, Sentencing, Sixth Amendment

Case 000963

Posted on by Gary McCurdy

Error and/or relief

Having been found in violation of probation and the previously imposed but suspended prison term having been ordered executed, the defendant is entitled to challenge the upper term that he agreed to in 2021 before section 1170 was amended to provide that the upper term may be imposed only on aggravating factor stipulated to or found true beyond a reasonable doubt by a jury.

If the prosecution or court are not satisfied with the resulting modification, the plea shall be set aside and the parties shall be restored to their status prior to the plea agreement.

First Holding:

Effective 1/1/2022, SB 567 amended section 1170 to make the middle term the presumptive sentence and permit a trial court to impose the 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.

Authority:

PEN 1170

Second Holding:

In Mitchell, the California Supreme Court resolved the effect of section 1170(b) on negotiated dispositions, holding that SB 567’s amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases that were not final on appeal.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 737–738

Third Holding:

We therefore reverse the judgment because the facts relied on to justify the upper term were not stipulated to or proven beyond a reasonable doubt at a jury or court trial. The defendantl may reaffirm the bargain and waive the requirements now applicable under section 1170(b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing its burden of proof. What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence to the middle term.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 749

Gary note:

(The opinion made no mention of Penal Code section 1171, effective 1/1/2025, even though the Mitchell opinion made an observation in a footnote. There are several unpublished cases that have held that section 1171 will NOT result in a rescission of the plea agreement, in light of the language in 1171(c)(3) that says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (You can search for the unpublished opinions I have posted, where I may have added additional commentary.  Maybe try the search term “1171” or “PEN 1171” with or without quotation marks.)

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

One of the defendant’s counts must be vacated because it was time-barred.

First Holding:

There is a three-year statute of limitations for reckless indifference to an animal’s suffering.

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

There is a relation-back provision, meaning a prosecutor could file charges late if they involved the same conduct alleged in charges that were timely filed. (Former sec. 803, subd. (b) [eff. Jan. 2018].) The relation-back provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct.

In other words, the relation-back provision does not function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant during the same time frame as an offense charged in a pending prosecution.

Authority:

People v. Terry (2005) 127 Cal.App.4th 750, 769

Third Holding:

The defendant requests that, on remand, he should be granted leave to file a motion for new trial on the grounds that the jury may have been influenced by the evidence presented on the time-barred-now-vacated count.

A motion for new trial must be made and determined before the making of an order granting probation. The defendant has been granted probation. The trial court lack jurisidiction to rule on a motion for new trial.

Authority:

People v. Martin (1963) 60 Cal.2d 615, 618

Abstracts and Minutes

Case 000961

Posted on by Gary McCurdy

Error and/or relief

the abstract of judgment must be corrected to conform to the trial court’s oral pronouncement striking the section 667.5, subdivision (b) prior, rather than stating, as it currently does, that the enhancement was stayed.

Holding:

The abstract of judgment must be corrected to conform to the oral judgment.

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an appellate court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts]

Abstracts and Minutes

Case 000960

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly states that the crime was committed “by force.” The abstract must be corrected to remove those words.

Holding:

We order correction of the clerical error in the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors in an abstract of judgment may be corrected at any time]

Abstracts and Minutes, Sentencing

Case 000959

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to recalculate his custody credits and the amended abstract of judgment reflects the incorrect amount of conduct credit. The abstract of judgment must be amended to accurately reflect defendant’s custody credits and his restitution fine must be vacated due to recent amendments to section 1465.9.

First Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Second Holding:

In cases where there is no factual dispute as to the dates of custody and the calculation is merely arithmetical, the defendant should not be deprived of credit to which he or she is entitled merely because trial counsel made a mistake.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

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

Third Holding:

The abstract of judgment reflects that the conduct credit days ordered at the original sentencing hearing was 40 days instead of the 70 days actually granted. The abstract must be corrected to reflect the 70 days pre-sentence conduct credit.

Authority:

People v. Hernandez (2024) 103 Cal.App.5th 981, 993

People v. Boyd (2024) 103 Cal.App.5th 56, 74–75

Fourth Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years must be vacated.

Upon 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 restitution fine was originally imposed in 2007, and defendant was resentenced over 18 years later. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)(1) and (b)(2)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

The court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.

And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

PEN 1001.35(a)

PEN 1001.36(b)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

In this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402