Author Archives: Gary McCurdy

Fines and fees, Sentencing

Case: 000149

Posted on by Gary McCurdy

Error and/or relief

Where the sentence is life without the possibility of parole, it was improper to impose a parole revocation fine, and it must be stricken.

Holding:

A parole revocation fine may not be imposed for a term of LWOP, as the statute is expressly inapplicable where there is no period of parole. Moreover, our Supreme Court recently recognized that the parole revocation fine statute does not apply where a defendant is given both an LWOP sentence and an indeterminate term.

Authority:

PEN 1202.45

People v. Jenkins (2006) 140 Cal.App.4th 805, 819

People v. Alvarez (2025) 18 Cal.5th 387, 485–486

Appellate Principles, Fines and fees, Sentencing

Case: 000148

Posted on by Gary McCurdy

Error and/or relief

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:

In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).

Authority:

PEN 1202.4(b)(1)

Second Holding:

[GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.]

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Abstracts and Minutes, Jurisdiction, Sentencing

Case: 000147

Posted on by Gary McCurdy

Error and/or relief

The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.

The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.

First Holding:

Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries.

In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge.

Authority:

In re Candelario (1970) 3 Cal.3d 702

Second Holding:

The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony.

Authority:

In re Candelario (1970) 3 Cal.3d 702

People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]

People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]

People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]

People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true]

Third Holding:

Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Howard (1997) 16 Cal.4th 1081, 1089

Fourth Holding:

The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction.

Authority:

People v. Farias (2023) 92 Cal.App.5th 619, 635-636

People v. Codinha (2023) 92 Cal.App.5th 976, 1120 [holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]

People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]

People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]

People v. Singleton (2025) 113 Cal.App.5th 783, 797

Sentencing

Case: 000146

Posted on by Gary McCurdy

Error and/or relief

A defendant is entitled to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. The court is directed to recalculate the amount of custody credit he should receive.

First Holding:

Section 2900.5 entitles a defendant to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Herrera (2001) 88 Cal.App.4th 1353, 1365

Second Holding:

A sentence for possession of specified weapons while confined in (or being conveyed to or from) any penal institution is to be served consecutively.

Authority:

PEN 4502

Third Holding:

Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

Authority:

PEN 2900.5

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so 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.

It also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

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. The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

PC 1172.6(c) and (d)

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

Third Holding:

At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568

Fourth Holding:

We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous.

Authority:

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

People v. Eynon (2021) 68 Cal.App.5th 967, 976

Fifth Holding:

The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage]

Sixth Holding:

In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977-978

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory]

Seventh Holding:

Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]

People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer]

Duty of the court, Elements of crime, Jury instructions, Standard of review

Case: 000144

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

First Holding:

The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 29, 33, fn. 6

Second Holding:

We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 30

Third Holding:

It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only.

Authority:

PEN 243.4(e)(1)

PEN 242

People v. Shockley (2013) 58 Cal.4th 400, 404

People v. Yonko (1987) 196 Cal.App.3d 1005, 1010

Fourth Holding:

Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him.

Authority:

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

People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201

People v. Schuller (2023) 15 Cal.5th 237, 260

Fifth Holding:

The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 681

Amelioration, Sentencing

Case: 000143

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.

First Holding:

If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested.

Authority:

PEN 1172.6(b)(1)(A), (3)

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Second Holding:

Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition.

Authority:

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

People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing]

Third Holding:

A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.

Authority:

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

People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]

People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act]

Appellate Principles, Plea bargains, Sentencing

Case: 000142

Posted on by Gary McCurdy

Error and/or relief

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.

First Holding:

The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

Second Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

Authority:

PEN 1192.5

Third Holding:

A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Fourth Holding:

A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224

Fifth Holding:

Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024-1025

People v. Cruz (2013) 219 Cal.App.4th 61, 65

Sixth Holding:

A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.

Authority:

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Appellate Principles, Sentencing, Sixth Amendment

Case: 000141

Posted on by Gary McCurdy

Error and/or relief

The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).

First Holding:

It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 747

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

Cunningham v. California (2007) 549 U.S. 270

People v. Wiley (2025) 17 Cal.5th 1069, 1085

Second Holding:

Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 838

Third Holding:

Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 352–353

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. McCullough, (2013) 56 Cal.4th 589, 593

Fifth Holding:

But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions]

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence must be reversed unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

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

Discretion, Juveniles

Case: 000140

Posted on by Gary McCurdy

Error and/or relief

The court erred in setting a maximum confinement time when he was released home on probation. We will strike the maximum confinement term and affirm the judgment as modified.

First Holding:

It is abuse of discretion for a juvenile court to set a maximum confinement term for a minor who is not removed from his parents’ custody

Authority:

In re A.C. (2014) 224 Cal.App.4th 590, 591-592 [where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term]

Second Holding:

[GARY NOTE, for context, Welfare and Institutions Code section 726 states, in pertinent part, that IF a minor is removed from the custody of the parents, the court must state the maximum term, which the section also defines.]

Authority:

WIC 726

Amelioration, Sentencing

Case: 000139

Posted on by Gary McCurdy

Error and/or relief

The defendant contends, the People concede, and we agree the superior court erred in finding that the defendant was ineligible for relief as a matter of law with respect to his attempted murder conviction because in 2022 the Legislature clarified with the enactment of Senate Bill No. 775 that relief was available for individuals convicted of attempted murder and voluntary manslaughter. We reverse the order as to his attempted murder conviction. We remand for the court to appoint counsel and to consider the petition in light of the current provisions of section 1172.6.

First Holding:

Senate Bill 775, effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

PEN 1172.6

Second Holding:

Once a defendant files a facially valid petition with the required statutory language and a declaration that the defendant was eligible for relief under section 1172.6, subdivision (a), the court was required to appoint counsel upon request.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Probation Parole PRCS

Case: 000138

Posted on by Gary McCurdy

Error and/or relief

Probation Condition 13 is invalid under Lent and Ricardo P. In accord with Ricardo P., we will vacate Probation Condition 13 and remand for consideration of whether a more narrowly tailored electronic search condition may be devised and is justified on this record.

First Holding:

In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid. Generally, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The third prong of the Lent test requires a narrow tailoring evaluation to determine whether the burden an electronic search condition imposes on the probationer’s privacy is reasonably proportionate to the risk of future criminality.

Authority:

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

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122-1123

Second Holding:

Under Lent, the third prong reasonableness determination as explained and applied in Ricardo P. requires a case-by-case, record-specific balancing of factors. The third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. It is insufficient to say, categorically, that electronic surveillance improves effective probation supervision. A probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer.

Authority:

People v. Bryant (2021) 11 Cal.5th 976, 983, 984

Third Holding:

There must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. Even though a direct nexus between the search condition and underlying offense is not always required, there still must be information in a probation report that raises concerns about future criminality.

Authority:

In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166E