Author Archives: Gary McCurdy

Appellate Principles, Duty of the court, Sentencing

Case: 000185

Posted on by Gary McCurdy

Error and/or relief

The defendant’s Penal Code section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions. The trial court held a resentencing hearing, struck the invalid enhancements, but declined to further reduce defendant’s sentence. We reverse for some certain conceded errors in the pronouncement of sentence, including with respect to custody credits, but otherwise affirm.

First Holding:

A trial court conducting a resentencing under section 1172.75 has discretion to dismiss a “strike” allegation under the Three Strikes law. There was no abuse of discretion here.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504

People v. Williams (1998) 17 Cal.4th 148, 161

Second Holding:

The trial court calculated certain elements of the defendant’s sentence by subtracting the one-year prior prison term enhancements from his original sentence as opposed to the later sentence imposed on remand following a determination that it was error to sentence on two–rather than just one–of the counts because of Penal Code section 654. There was some further ambiguity in the sentence imposed at the section 1172.75 hearing. The matter must be remanded to the trial court to strike the prior prison term enhancements on Counts Two and Three, to clarify the sentence on Count Three remains stayed, and to clarify the status of the prior serious felony enhancement on Count Two.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Third Holding:

The trial court improperly delegated calculation of his custody credits to the California Department of Corrections and Rehabilitation.

Authority:

PC 2900.1

PC 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 23-24

Duty of the court, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

000184

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of felony reckless evasion of a police officer. There were evidentiary conflicts. Under the highly deferential substantial evidence review standard, we conclude the conflicting trial evidence nonetheless supports his conviction. These evidentiary conflicts were sufficient, however, to raise a substantial question about whether all the elements of reckless evasion were present, warranting an instruction on the lesser included offense of simple evasion. We conclude failure to give this instruction was prejudicial error.

Accordingly, we reverse the judgment with the direction that if the People do not timely elect to retry the defendant for reckless evasion, then the judgment shall be modified to reflect a conviction for simple evasion and the trial court shall resentence the defendant.

First Holding:

It is undisputed that misdemeanor simple evasion (Veh. Code, sec. 2800.1) is a lesser included offense of felony reckless evasion (Veh. Code, sec. 2800.2) and that the only distinction between the two crimes is that the greater offense requires proof of the additional element that the defendant drove the pursued vehicle in a willful or wanton disregard for the safety of persons or property. The greater offense’s additional element can be established by proving that during the evasion the defendant committed three or more violations that are assigned a traffic violation point count under section 12810.

Authority:

VEH 2800.1

VEH 2800.2

People v. Springfield (1993) 13 Cal.App.4th 1674, 1680

People v. Diaz (2005) 125 Cal.App.4th 1484, 1486

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a convictionIf the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1215

People v. Oyler (2025) 17 Cal.5th 756, 819–820

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Jennings (2010) 50 Cal.4th 616, 638, 639

Third Holding:

California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.

Thus, a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. In this context, substantial evidence is not any evidence, no matter how weak; it is evidence that a reasonable jury could find persuasive. If there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. Although we concluded above that substantial evidence supports the finding that the defendant committed at least three qualifying Vehicle Code violations during the pursuit, there is also substantial evidence that he did not commit at least three qualifying violations. Accordingly, the trial court erred by failing to instruct the jury sua sponte regarding this lesser included offense.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239–240

People v. Breverman (1998) 19 Cal.4th 142, 154

People v. Williams (2015) 61 Cal.4th 1244, 1263

People v. Kraft (2000) 23 Cal.4th 978, 1063

Fourth Holding:

We apply the generally applicable California test for harmless error under which we deem an error harmless unless it is reasonably probable the outcome would have been different in the absence of the error. Other than in cases involving the unique relationship between murder and voluntary manslaughter, the general rule is that the failure to instruct on other forms of lesser included offenses in noncapital cases is an error of state law. A reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. In assessing prejudice, we consider both the magnitude of the error and the closeness of the case. Applying this standard, we find the error here prejudicial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 251

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

People v. Hendrix (2022) 13 Cal.5th 933, 944

People v. Vasquez (2018) 30 Cal.App.5th 786, 798

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971, 972

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Retroactivity, Sentencing

Case: 000182

Posted on by Gary McCurdy

Error and/or relief

In light of AB 333, the trial court’s true findings on the prior serious felony enhancement and the strike prior allegations must be reversed. It is undisputed that there was insufficient evidence that defendant’s prior gang-related conviction (sec. 186.22(a)) satisfied the more stringent evidentiary requirements imposed by the change in law. Therefore, the court erred in considering that conviction to double defendant’s sentence. Accordingly, we will vacate the sentence and remand the matter for further proceedings. The defendant’s sentence is vacated and the matter is remanded for further proceedings, including a full resentencing. On remand, the People may elect to retry, under current law, the allegation that defendant’s prior gang-related conviction qualifies as a serious felony and strike prior for purposes of the three strikes law and a prior serious felony enhancement.

First Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) narrowed liability for gang-related offenses by requiring more stringent evidentiary requirements for proving them.

Authority:

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

People v. Rojas (2023) 15 Cal.5th 561, 576

Second Holding:

AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It applies to the analogous determination under section 667(a) for prior serious felony enhancements. Thus, AB 333’s amendments to section 186.22 apply to the current determination of whether the prosecution has proven the prior serious felony enhancement allegations in this case. In other words, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 605, 607

Third Holding:

Where, as here, AB 333 applies retroactively to the determination of whether a prior gang-related conviction qualifies as a serious felony for purposes of the three strikes law and a prior serious felony enhancement we review for harmless error pursuant to Chapman. Vacating a true finding is required unless it appears beyond a reasonable doubt that the finding would have been the same under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

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

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

People v. Lewis (2006) 139 Cal.App.4th 874, 887

Fourth Holding:

At the time the defendant entered his guilty plea, the People were not required to prove, and defendant did not admit, the current evidentiary requirements of that provision, as amended by AB 333. Under these circumstances, the appropriate remedy is to vacate the true findings on the allegations that defendant’s prior gang-related conviction qualifies as a prior serious felony for purposes of the three strikes law and the prior serious felony enhancement and remand the matter to the trial court to allow the People the opportunity to retry those allegations under current law, considering the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that 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 California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

People v. Reyes (2023) 14 Cal.5th 981, 986,

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632

Fines and fees, Retroactivity

Case: 000180

Posted on by Gary McCurdy

Error and/or relief

The restitution fine imposed more than 10 years ago must be stricken from the judgment.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that, 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.

Authority:

PEN 1465.9

Second Holding:

The statute is retroactive, because On January 1, 2025, when the amendment became effective, his restitution fine was rendered uncollectible and unenforceable. There is no authority for the People’s assertion that a hearing on a petition for resentencing under section 1172.75 starts a new period of 10 years.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069 [applying the amendment to a restitution fine imposed in 2008]

Abstracts and Minutes

Case: 000179

Posted on by Gary McCurdy

Error and/or relief

Following the hearing on the defendant’s petition for recall of sentence under section 1172.6, the abstract of judgment was amended in a manner that does not accurately reflect the defendant’s convictions and the trial court’s oral pronouncement at the hearing. First, the amended abstract of judgment reflects that the court resentenced the defendant to a concurrent term for count one instead of for count three. Second, the amended abstract of judgment does not reflect that the sentence for count one was stayed. Finally, the amended abstract of judgment erroneously describes the defendant’s conviction for count two as for a crime other than that of which he was convicted. The abstract of judgment must be corrected.

Holding:

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

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 389 [rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it]

In re Candelario (1970) 3 Cal.3d 702, 705 [a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts]

People v. Mitchell (2001) 26 Cal.4th 181, 186–187 [concluding that appellate courts can correct clerical errors in the abstract of judgment on its own motion or upon request from the parties]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case: 000178

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for pretrial mental health diversion under Penal Code section 1001.36. The People concede that the court erred in finding the him ineligible for diversion. The judgment is conditionally reversed, the order denying the defendant’s motion for mental health diversion is vacated, and the matter is remanded for the trial court to reconsider his diversion motion consistent with this opinion. If the trial court again denies the motion, the judgment shall be reinstated.

First Holding:

A trial court may grant mental health diversion to defendants who satisfy the eligibility and suitability requirements set forth in the statute. A defendant is eligible for diversion if he or she has been diagnosed with a qualifying mental disorder and that disorder was a significant factor in the commission of the charged offense. A defendant is suitable for diversion if the defendant’s symptoms would respond to mental health treatment, the defendant consents to diversion and waives the right to a speedy trial, the defendant agrees to comply with treatment as a condition of diversion, and the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36

Second Holding:

We review a trial court’s denial of mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. When reviewing a 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 making this assessment the appellate court must view the record in the light most favorable to the prevailing party below 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.

Authority:

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

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Third Holding:

Under the statute, a trial court must presume that a defendant’s diagnosed mental disorder was a significant factor in the commission of the crime, unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. The prosecution bears the burden of presenting such clear and convincing evidence. The absence of evidence proving that a defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that a defendant’s mental disorder was not a factor in the commission of the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Sentencing

Case: 000177

Posted on by Gary McCurdy

Error and/or relief

The court erred in its calculation of credit for time served. The miscalculation appears to be the result of the trial court failing to include the fact defendant was in custody from his initial arrest for an earlier period before he was arrested a second time.

Holding:

The appellate court accepted the People’s concession regarding the credit for time served error and modify the judgment to include the correct number of days.

Authority:

People v. Guillen (1994) 25 Cal.App.4th 756, 764

Abstracts and Minutes, Eighth Amendment, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000176

Posted on by Gary McCurdy

Error and/or relief

The $150 restitution fine and the parole revocation fine imposed on count three are unauthorized and must be vacated or stayed. The fine had been imposed on a count that was stayed under Penal Code section 654. Aside from that problem, a separate parole revocation fine cannot be imposed on a misdemeanor offense. Also, the abstract of judgment must be corrected because it incorrectly states that he has a prior strike and was sentenced under Penal Code section 667(b) through (i), or section 1170.12.

First Holding:

When a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized sentence that can be challenged for the first time on appeal.

Authority:

People v. Soto (2016) 245 Cal.App.4th 1219, 1234

Second Holding:

Defendant is not subject to parole separately for the misdemeanor and is thus not subject to a parole revocation restitution fine on it.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 547

Third Holding:

The abstract of judgment must be corrected because it erroneously states that he has a prior strike and that he was sentenced under section 667(b) through (i), or section 1170.12. There is no indication in the record defendant has sustained a prior strike conviction. We will order the abstract of judgment corrected to reflect that he does not have a strike prior, and he was not sentenced pursuant to section 667(b) through (i), or section 1170.12.

[Gary note: The court cited no authority for the obvious proposition that the abstract of judgment needs to be corrected. I have listed below some of many cases that the court could have relied on.]

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

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The meaning of a statute is a question of law that we review de novo.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Discretion, Duty of the court

Case: 000174

Posted on by Gary McCurdy

Error and/or relief

After reviewing the petition and the parties’ briefing, we conclude that, at a pretrial hearing in May 2024, the court erred in denying petitioner’s request for a bail review hearing after petitioner showed changed circumstances entitling him to such a review. Therefore, we grant the petition and direct the trial court to hold a new bail review hearing. The court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion.

First Holding:

Under section 1289, after a defendant has been admitted to bail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. Such good cause must be founded on changed circumstances relating to the defendant or the proceedings.

Authority:

PEN 1289

In re Alberto (2002) 102 Cal.App.4th 421, 430

Second Holding:

If the court properly determines nonfinancial conditions are insufficient to protect the state’s interests, but that imposing a money bail condition (alone or in combination with nonfinancial conditions) would adequately protect the public and the victims and ensure the arrestee’s presence in court, the court must consider the individual arrestee’s ability to pay and set bail at a level the arrestee can reasonably afford. If money bail set at a level the defendant can reasonably afford is not sufficient to protect the state’s compelling interests, then the trial court’s only option is to order pretrial detention, assuming the evidentiary record is sufficient to support the findings necessary to justify such an order.

Authority:

In re Brown (2022) 76 Cal.App.5th 296

In re Humphrey (2021) 11 Cal.5th 135

Third Holding:

The appellate court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion. The Kowalczyk court had disagreed with the Brown court’s earlier conclusion that a pretrial detention order is the only option when a bail amount the defendant can afford is insufficient to protect the public and ensure the defendant’s presence in court. The Kowalczyk court concluded that under Humphrey, if a court makes the findings necessary to support a detention, the court may set bail in an amount higher than a defendant can afford.

Authority:

In re Kowalczyk (2022) 85 Cal.App.5th 667