Author Archives: Gary McCurdy

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

We review de novo a trial court’s denial of a section 1172.6 resentencing petition at the prima facie stage.

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law.

Authority:

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

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

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

Amelioration, Sentencing, Vicarious liability

Case 000802

Posted on by Gary McCurdy

Error and/or relief

Because the record of conviction did not establish the defendant was ineligible for relief as a matter of law, we reverse and remand for the trial court to set an evidentiary hearing under section 1172.6(d).

First Holding:

In 2019, the legislature enacted SB 1437, which amended the state’s murder laws to ensure culpability was commensurate with liability. The legislature later expanded its amendments with SB 775. SB 775 allowed defendants to seek resentencing if their convictions rested on any theory under which malice is imputed to a person based solely on that person’s participation in a crime, and they could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

To seek such relief, a defendant must file a petition under what is now section 1172.6. If petitioners make a prima facie showing that they are eligible for relief, the trial court must set an evidentiary hearing. If the record of conviction shows that the petitioner is ineligible for relief as a matter of law, the court may deny the petition at the prima facie stage.

Authority:

PEN 1172.6

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

Second Holding:

Because the trial court was incorrect there was no theory presented to the jury under which malice could have been imputed, we reverse.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257

Third Holding:

In Maldonado, the court traced how a defendant could be convicted of first degree murder without a requirement that the jury find the defendant harbored malice. It noted that CALCRIM No. 401 only requires an intent to aid and abet a crime. In the murder context, this instruction can muddy the waters because the crime is not necessarily the act that caused the death or may not be an act that would require a conscious disregard of human life.

Authority:

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1264-1268

People v. Langi (2022) 73 Cal.App.5th 972

Fourth Holding:

Whether instructional error could have been raised on direct appeal is immaterial to the section 1172.6 analysis.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 649

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Appellate Principles, Duty of counsel

Case 000799

Posted on by Gary McCurdy

Error and/or relief

The habeas corpus writ is granted. The matter is remanded for the court to hold an evidentiary hearing to determine various identified aspects of allegedly false testimony and its impact on the jury’s decision to convict the defendant.

First Holding:

The People argue that the claim is procedurally barred under the contemporaneous objection rule, and the false testimony was not material. Also, the People assert the claim is prohibited because the defendant failed to pursue them on direct appeal, citing Sakarias and Dixon.

Petitioner argues that the assertions of procedural default do not bar the presentation of the claims in these proceedings, citing Glossip), in which the United States Supreme Court held that it is the prosecution’s duty to correct false testimony when it appears.

Authority:

In re Sakarias (2005) 35 Cal.4th 140, 169

In re Dixon (1953) 41 Cal.2d 756, 759

Glossip v. Oklahoma (2025) 604 U.S. 226, 253, fn. 10 [even if the defense had made a conscious choice not to raise the issue of the false testimony, that would be irrelevant.]

Second Holding:

Petitioner alleged that the claim was being raised presently under the authority of SB 97, which went into effect on January 1, 2024, and allows for a writ of habeas corpus to be prosecuted on the additional bases of the discovery of new evidence that has not been previously presented and heard at trial and has been discovered after trial.

The People have not directly addressed this assertion, so we conclude that, in issuing the order to show cause, the Supreme Court found the petition was timely.

(Gary note: the Court of Appeal denied the defendant’s first petition for writ of habeas corpus, so he petitioned for review in the Supreme Court, which remanded the matter to the Court of Appeal to issue an order to show cause.)

Authority:

PEN 1473(b)(1)(A)

Third Holding:

In reviewing a habeas petition, the Supreme Court (or any other court considering such a petition) performs a gatekeeping function of determining whether it states a prima facie case for relief and whether the stated claims are procedurally barred. If the petition meets these requirements, the court must issue a writ of habeas corpus or order to show cause, receive a return and traverse, and may, if necessary, order an evidentiary hearing on the claims.

Authority:

In re Cook (2019) 7 Cal.5th 439, 457

Fourth Holding:

The Supreme Court’s direction to an appellate court to issue an order to show cause why the relief sought in the petition should not be granted signifies its preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 454-455

People v. Duvall (1995) 9 Cal. 4th 464, 475

Fifth Holding:

The issuance of the order to show cause creates a cause giving the People a right to reply to the petition by a return and to otherwise participate in the court’s decisionmaking process. It is through the return and the traverse that the issues are joined in a habeas corpus proceeding.

Once the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. If the return and traverse reveal that petitioner’s entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing.

Authority:

In re Serrano (1995) 10 Cal.4th 447, 455

People v. Romero (1994) 8 Cal.4th 728, 739-740

Sixth Holding:

It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it to go uncorrected when it appeared.

Authority:

Napue v. lllinois (1959) 360 U.S. 264, 269

People v. Carrasco (2014) 59 Cal.4th 924, 966-967

Seventh Holding:

If the defendant makes such a showing, a new trial is warranted so long as the false testimony may have had an effect on the outcome of the trial,—that is, if it in any reasonable likelihood could have affected the judgment of the jury. In effect, this materiality standard requires the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Evidence can be material even if it goes only to the credibility of the witness.

Authority:

Glossip v. Oklahoma (2025) 604 U.S. 226, 246

Napue v. lllinois (1959) 360 U.S. 264, 269

Eighth Holding:

The Court of Appeal is ill-suited to make factual determinations. For this reason, we cannot simply order a new trial, and, instead, must remand the matter to the superior court with directions to conduct an evidentiary hearing to (1) the basis on which the paramedic based his testimony that there were two gunshot wounds; (2) whether the prosecution possessed the autopsy report and the police report summarizing the findings of that report, and, if not, why; (3) whether the autopsy report was provided to petitioner’s trial counsel in discovery, and, if not, why this would not constitute a Brady violation; (4) why the false testimony of the paramedic was not timely corrected; (5) why Detectives [A] and [B] did not testify about the evidence collected at the scene and the results of the autopsy; and (6) why a new trial should not be ordered.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 901 [Ordinarily, an evidentiary hearing is the appropriate means of resolving factual disputes of this nature]

Brady v. Maryland (1963) 373 U.S. 83, 87