Author Archives: Gary McCurdy

Amelioration, Sentencing, Vicarious liability

Case 000644

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall of sentence under section 1172.6 without an evidentiary hearing, concluding that the transcript of trhe preliminary examination showed that he was prosecuted as the direct perpetrator. Defendant contends the record of conviction does not conclusively foreclose relief. Alternatively, he requests a conditional reversal that would allow him to dispute hearsay statements testified to at the preliminary hearing. We will therefore remand the matter and direct the trial court to consider such an amended petition, should defendant elect to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.), which amended sections 188 and 189 to eliminate several theories of liability based on imputed malice in homicide cases. The Legislature has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted.

As relevant here, a defendant convicted of manslaughter may petition to have that conviction vacated if (a) the pleading allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine; (b) the petitioner accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder; and (c) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

An order to show cause must issue if a petitioner makes a prima facie case for relief. At an evidentiary hearing on the order to show cause, the prosecution must prove beyond a reasonable doubt that the defendant is guilty under current law.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 565, 568

Second Holding:

Some cases may be so straightforward as to prompt a concession of a prima facie showing and if the record contains any indication the petitioner had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 560, fn. 4

Third Holding:

Section 1172.6(d)(3) expressly provides that hearsay evidence that was admitted in a preliminary hearing pursuant to section 872(b) shall be excluded from the resentencing evidentiary hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. [Section 872(b), applicable to preliminary examinations, provides that the finding of probable cause to hold the defendant to answer in superior court on the felony may be based in whole or in part upon the sworn testimony of a qualified law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted.]

Thus, at an evidentiary hearing under section 1172.6(d)(3), the officer’s statements would be excluded unless admissible under an Evidence Code exception to the hearsay rule. One appellate court has held that it was not error to deny a section 1172.6 petition at the prima facie stage based in part on hearsay testimony given by police officers at the preliminary hearing.

Authority:

People v. Rodriguez (2026) 117 Cal.App.5th 1179, 1185

Fourth Holding:

In light of Patton, the defendant should be provided an opportunity to argue the factual landscape of the preliminary hearing and be provided the opportunity to present testimony or other evidence to show he was not the actual killer. The trial court should also have the opportunity to consider any additional facts pled by defendant in support of a prima facie case for relief under section 1172.6.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 565, 569-570

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000643

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. The restitution fine must be vacated, as it is more than 10 years old. The abstract of judgment must be corrected to reflect the oral pronouncement of judgment accurately.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which states: “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 fine in this case appears to have been imposed at the original sentencing in 1994, and must be vacated.

Authority:

PEN 1469.5

Second Holding:

Though the abstract of judgment from 1994 does not reflect whether the trial court imposed the mandatory minimum restitution fine under section 1202.4(b), we presume, as the People argue, the court did. Thus, the superior court’s order imposing the restitution fine at the defendant’s resentencing in 2024 essentially reimposed the fine imposed in 1994, which section 1465.9 has now made unenforceable and uncollectible. We construe the superior court’s order as simply reimposing the original restitution fine, and the 10-year clock did not start anew.

Authority:

EVID 664 [It is presumed that official duty has been regularly performed]

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [we presume that the trial court knew the law and followed it in imposing a restitution fine under section 1202.4]

People v. Stowell (2003) 31 Cal.4th 1107, 1114 [a trial court is presumed to have been aware of and followed the applicable law]

People v. Salstrom (2025) 117 Cal.App.5th 596, review granted on another point, March 11, 2026, S295038

Third Holding:

After imposing the $300 restitution fine, the superior court stated: “$300 parole revocation fine, that is stayed pending successful—Well, I am going to strike that. There is no parole that’s going to be granted in this case.” As noted, the minute order and abstract of judgment indicate the court (1) imposed and stayed execution of a parole revocation fine under section 1202.45 and (2) imposed and struck “all financial obligations, excluding any actual victim restitution.” The reporter’s transcript of the resentencing hearing does not state the court made these rulings. The superior court must correct the minute order and abstract of judgment to reflect the oral pronouncement of judgment.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244 [Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls]

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]

People v. Portillo (2023) 91 Cal.App.5th 577, 603 [the oral pronouncement of sentence controls over a subsequently entered minute order]

Fourth Holding:

Courts may correct clerical errors at any time, and appellate courts . . . have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Garcia (2024) 101 Cal.App.5th 848, 859

People v. Gobert (2023) 89 Cal.App.5th 676, 689 [we must correct the discrepancy by ordering the trial court to modify the minute order]

Fines and fees, Sentencing

Case 000642

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court erred by awarding fewer presentence conduct credits than ordered at the original sentencing, and the restitution fine must be vacated as it is now more than 10 years old.

First Holding:

Erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented.

Authority:

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

Second Holding:

The restitution fine was imposed at the time of the original sentencing in 1995. Section 1465.9(d) now 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(d)

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821, 837, 838

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. A jury–not the judge, absent a jury waiver or stipulation–must 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.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1083–1084, 1086

Fourth Holding:

A Sixth Amendment violation occurs 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. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Duty of the court, Sentencing

Case 000640

Posted on by Gary McCurdy

Error and/or relief

The court erred by staying the sentence on the vandalism and first degree residential burglary counts without first imposing a sentence, and we therefore remand to the court to impose a sentence on these counts.

First Holding:

When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence and to stay the execution of the duplicative sentence. The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.

This procedure ensures that the defendant will not receive a windfall of freedom from penal sanction if the conviction on which the sentence has not been stayed is overturned. Thus, it is improper to impose no sentence or to stay imposition of the sentence. Under section 654, a court’s failure to impose a sentence before staying it results in an unauthorized absence of sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 380

People v. Alford (2010) 180 Cal.App.4th 1463, 1472