This is my second post, just seeing how this works. I’m not sure I can post a picture on every new posting. I imagine that would be take up a lot of the space I have allotted me by the host. I’ll have to check that out. I might be confusing space limitations with limits on my mail account. By the way, this is not one of my dogs. (Yes, it IS a coyote.) He (or she?) simply roamed the neighborhood for a bit, then seems to have moved along
(Usual reminder here) Also, if you’ve forgotten why you’re reading cases on my blog, perhaps it’s a good time to click on the navigation button “WHAT Gold?” above. To return to the blog, click on “Gary has this to say.” And if you are an attorney and want to contact me, click on the “About me” button.
And now for today’s specials:
Prior convictions from prior to AB 333’s redefining what is necessary to constitute criminal gang activity cannot be treated as prior serious felonies absent a jury trial (or stipulation, but duh?) finding that the conduct then would constitute criminal conduct under the revisions of AB 333;
A couple of cases deal with defendants whose now-invalid enhancements for prior prison terms is eligible for full resentencing under section 1172.75 even if the enhancements were stayed or stricken;
The appellate court can dismiss a prior conviction that the trial court intended to dismiss but forgot to actually dismiss it;
We get treated to a discussion on the elements of aiding and abetting in a case where the appellate court determined the evidence was insufficient to sustain an aiding and abetting conviction;
We see a weird set of facts where a trial judge denied a motion that was NOT made in a case where the defendant made a motion he had no right to make (thus also having no right to appeal a denial of that motion), but the appellate court assumes jurisdiction because the trial court dealt with a motion that wasn’t made. Huh? Not sure I can summarize that, much less any better than I tried;
Given the changes in the posture of section 1172.6, the appellate court declined to rule that the defendant was not permitted to file a second petition.
Case: 000004
The defendant was sentenced to a Three Strikes term for prior serious felonies, both gang related felonies that would not comport with AB 333 today given that he admitted them under the elements of the crimes in effect in 2015 and 2019 prior to AB 333. They can’t be used as priors. The DA may choose to retry those allegations on remand.
First Holding: Gang allegations on prior convictions cannot be sustained if not in compliance with AB 333 [See] Assembly Bill No. 333 (2021–2022 Reg. Sess.); People v. Fletcher (2025) 18 Cal.5th 576; Penal Code section 186.22.
Second Holding: The DA may choose to retry those allegations on remand. [See] People v. Fletcher (2025) 18 Cal.5th 576;
Case: 000005
Section 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken. Because the defendant was eligible for relief, the judgment is reversed and remanded to the lower court.
First Holding: Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken [See] PC 1172.75 declares, “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (§ 1172.75, subd. (a) (section 1172.75(a); If a court determines “the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.” (PC 1172.75, subd. (c).); People v. Espino (2024) 104 Cal.App.5th 188, 194, review granted Oct. 23, 2024, S286987 (Espino) the majority concluded section 1172.75 applies when the punishment for the section 667.5(b) enhancement was imposed but stricken; People v. Rhodius (2025) 17 Cal.5th 1050, 1054; People v. Cota (2025) 112 Cal.App.5th 1118 (Cota), the court that issued Espino concluded, post Rhodius, that section 1172.75 requires resentencing where, as here, prison priors were imposed but punishment for them was struck.
Second Holding: The court reviews de novo interpretations of statutes. [See] People v. Lewis (2021) 11 Cal.5th 952, 961.
Third Holding: The court’s fundamental task in construing statutes is to interpret them in a way that gives effect to the Legislature’s intent. [See] Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837.
Fourth Holding: Because the statutory language is generally the most reliable indicator of that intent, the court looks first at the words themselves, giving them their usual and ordinary meaning. [See] People v. Ruiz (2018) 4 Cal.5th 1100, 1105.
Fifth Holding: If the statute’s language is unambiguous then its plain meaning controls. If the statute’s language is unclear, ambiguous, or susceptible to more than one reasonable interpretation, we may look at extrinsic sources, including legislative history, as a guide to construing the statute. [See] People v. Scott (2014) 58 Cal.4th 1415, 1421.
Case: 000006
The trial court did not actually dismiss a prior conviction it had agreed to dismiss under the bargain. The court modified the judgment by dismissing the prior conviction in keeping with the bargain. (It does not appear that the defendant was sentenced to time on the prior; simply the court forgot to dismiss it on sentencing.)
First Holding: The appellate court reviews the record as it existed at time of the lower court’s ruling. [See] In re Kenneth D. (2024) 16 Cal.5th 1087, 1102 [appellate court reviews record as it existed when lower court ruled]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance must be demonstrated on appellate record].
Second Holding: A certificate of probable cause is required to challenge on appeal a no contest plea on the grounds of ineffective assistance of counsel. [See] Penal Code § 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Stamps (2020) 9 Cal.5th 685, 694-695; People v. Richardson (2007) 156 Cal.App.4th 574, 596 [pre-plea ineffective assistance of counsel].
Third Holding: A claim of ineffective assistance of counsel requires not only a showing of deficient performance but also prejudice–a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceedings would have been different. [See] Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Patterson (2017) 2 Cal.5th 885, 900.
Fourth Holding: Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, the court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [See] People v. Nguyen (2015) 61 Cal.4th 1015, 1051.
Fifth Holding: Senate Bill No. 567 does not apply where defendant stipulated to upper term [this issue is pending in the Supreme Court] [See] People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 –Although Senate Bill No. 567’s amendments to section 1170 apply to this case, defendant cannot benefit from them because he stipulated to the upper term. (People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154, disagreed with Mitchell, and the split in authority is pending review in the California Supreme Court.
Sixth Holding: Where not charged with substituted enhancement, the court has no authority to make findings that change the character of the crime or increase sentence [See] People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [because the defendant was not charged with a substituted enhancement, the trial court was without authority to make findings that change the character of the crime or enhancement so as to increase the sentence].
Seventh Holding: The court must proceed in keeping with Penal Code section 1192.5 and abide by terms of agreement [See] In re Candelario (1970) 3 Cal.3d 702, 705–Because the trial court may not proceed with regard to the plea in a manner other than as specified in the approved plea (§ 1192.5), the trial court’s silence at the sentencing hearing regarding the dismissal of the strike allegation was not an exercise of judicial discretion, but rather a mistake in creating a record of the judgment.
Case: 000007
The court reversed and remanded with instructions that the defendant be afforded a section 1172.75 resentencing hearing where prior was imposed but stayed or imposed and punishment stricken.
Holding: A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken [See] People v. Rhodius (2025) 17 Cal.5th 1050.
Case: 000008
The defendant appealed from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6. The appellate court reversed and remanded the matter to the lower court because the evidence was insufficient to support the finding defendant aided and abetted the murder of the officer.
First Holding: In this instance, the appellate court found that there was insufficient evidence to show that the defendant aided and abetted the murder. [See] Senate Bill 1437; People v. Gentile (2020) 10 Cal.5th 830; People v. Wilson (2023) 14 Cal.5th 839, 869.
Second Holding: A trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence. Under this standard, the appellate court reviews the evidence in the light most favorable to the judgment below to determine whether it discloses substantial evidence that would allow a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. [See] People v. Reyes (2023) 14 Cal.5th 981, 988.
Third Holding: Under a direct aider and abettor liability theory, the prosecution must prove the person who is not the actual killer ‘engaged in the requisite acts and had the requisite intent’ to aid and abet the target crime of murder.” [See] People v. Pacheco (2022) 76 Cal.App.5th 118, 124.
Fourth Holding: Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. [See] People v. Powell (2021) 63 Cal.App.5th 689, 712-713.
Fifth Holding: It is well settled that aiding and abetting the commission of a crime require[s] some affirmative action [See] People v. Partee (2020) 8 Cal.5th 860, 868.
Sixth Holding: A person present at the scene of a crime—even one who is the criminal’s companion, knows a crime is being committed, fails to prevent it, and later expresses approval of it—is not guilty of aiding and abetting the crime if he takes no action to aid or encourage the crime [See] In re K.M. (2022) 75 Cal.App.5th 323, 329.
Case: 000009
The defendant invited the trial court to recall of his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.
First Holding: By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error [See] Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573.
Second Holding: A defendant does not have a right to appeal denial of invitation to resentence under 1172.1 [See] People v. Hodge (2024) 107 Cal.App.5th 985; Penal Code section 1172.1, subd. (c), “A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”
Third Holding: The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. [See] People v. Loper (2015) 60 Cal.4th 1155, 1159.
Fourth Holding: It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue. [See] Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573.
Case: 000010
The defendant appealed from the denial of his second petition for resentencing pursuant to Penal Code section 1172.6. The appellate court concluded that his petition is not barred by the doctrine of collateral estoppel and corresponding public policy considerations. He had never received notice of earlier denial. He is not barred from submitting a new petition.
First Holding: Successive petitions for resentencing are not explicitly barred by section 1172.6 but may be barred by doctrine of collaterial estoppel. Application of collateral estoppel is not automatic, but is subject to public policy considerations. [See] People v. Farfan (2021) 71 Cal.App.5th 942, 950.
Second Holding: The court does not apply collateral estoppel with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. [See] People v. Yokely (2010) 183 Cal.App.4th 1264, 1273.
Third Holding: Because of the retroactive nature and ever-evolving interpretations of the law surrounding section 1172.6, defendants may avail themselves of potential eligibility for relief under the statute that was not previously available under other judicial interpretations. [See] People v. Farfan (2021) 71 Cal.App.5th 942, 951; People v. Lovejoy (2024) 101 Cal.App.5th 860.