Author: Gary

I’m wondering, “Would it be worth it to give up arms to have wings and be able to fly?” He’s thinking, “Hey buddy, I could use a little help here to tie my shoes!”

Today’s developments teach us:

It isn’t always easy to prove a prior conviction was, in fact, a strike. You’ll see that in two different opinions regarding two different offenses;

Again we learn that a defendant whose now-invalid enhancement for prior prison terms is eligible for full resentencing under section 1172.75 even if the enhancement was not executed;

A court miscalculated the credit for time served;

We learn a little about what is admissible at a hearing to revoke a defendant’s Post-Release Community Supervision;

Any waiver of a jury trial on aggravating factors must be taken personally from the defendant;

There are limitations on what a judge can order as a condition of probation;

When a defendant goes back for resentencing, the judge must consider all ameliorative changes enacted since the original sentence was imposed.

Case: 000028

Substantial evidence does not support the true finding on the prior strike allegation. At trial, the prosecution introduced documentary evidence that the defendant was convicted in 2019 of violating section 246.3, subdivision (a) along with another offense, and the defendant admitted the convictions. The evidence did not prove whether he violated section 246.3, subdivision (a) by personally using a firearm, or instead if his guilt was based on his vicarious liability as an aider and abettor. The prosecution therefore failed to introduce substantial evidence that his conviction for violating section 246.3, subdivision (a) constituted a strike as defined by Penal Code section 1192.7.

First Holding: The evidence was insufficient to prove personal use, so the prior conviction was not proved as a strike. [See] People v. Watts (2005) 131 Cal.App.4th 589, 596.

Second Holding: PC 246.3 is a strike under as “any felony in which the defendant personally uses a firearm” or “any felony in which the defendant personally used a dangerous or deadly weapon” [See] 1192.7(c)(8); 1192.7(c)(23).

Third Holding: Section 246.3 can be used as a strike only if the defendant personally used the firearm. [See] People v. Golde (2008) 163 Cal.App.4th 101, 111-112.

Fourth Holding: Where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike. [See] (People v. Watts (2005) 131 Cal.App.4th 589.

Fifth Holding: On reversal for insufficiency of evidence of a prior conviction, the issue may be retried [See] People v. Barragan (2004) 32 Cal.4th 236, 239.

Case: 000029

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing. And update credits.

Holding: Eligible for 1172.75 resentencing where prior conviction had been imposed but stayed or stricken [See] People v. Rhodius (2025) 17 Cal.5th 1050.

Case: 000030

The People concede that the trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.

First Holding: Assault by means likely to produce great bodily injury is not a serious or violent felony. [See] See People v. Leng (1999) 71 Cal.App.4th 1, 9 [“A violation of [former] section 245, subdivision (a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant ‘personally inflict[ed] great bodily injury on any person, other than an accomplice[,]” or personally used a firearm or a dangerous or deadly weapon].

Second Holding: When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense. [See] People v. Johnson (2015) 61 Cal.4th 674; People v. Lynn (2015) 242 Cal.App.4th 594.

Third Holding: Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing. [See] People v. Buycks (2018) 5 Cal.5th 857, 893.

Case: 000031

The trial court miscalculated the credit for time served. We will therefore modify his presentence credit award.. The defendant was granted one additional day of actual custody credit (712 instead of 711).

Holding: [NOTE BY GARY–THE COURT DID NOT ACTUALLY CITE AUTHORITY, MOST LIKELY BECAUSE IT WAS AN ERROR IN CALCULATION AND NOT AN ERROR ON THE LAW. I HAVE PROVIDED THE AUTHORITIES HERE THAT SUPPORT THE COURT’S RULING, THOUGH NOT MENTIONED IN THE OPINION.] In determining the credit for time served, the court must count all actual days in custody (attributable to proceedings related to the same conduct for which the defendant has been convicted), including the first and the last. [See] Penal Code section 2900.5.

Case: 000032

Because the trial court improperly admitted hearsay testimony, the order revoking the defendant’s Post-Release Community Supervision (PRCS) is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

First Holding: A preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause [See] People v. Winson (1981) 29 Cal.3d 711; People v. Arreola (1994) 7 Cal.4th 1144.

Second Holding: A trial court’s decision to admit or exclude evidence in a … revocation hearing will not be disturbed on appeal absent an abuse of discretion. [See] People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198.

Third Holding: The court reviews rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion. [See] People v. Abrams (2007) 158 Cal.App.4th 396, 400.

Fourth Holding: Before a defendant’s probation or parole may be revoked, the prosecution must prove a violation by a preponderance of the evidence. [See] People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.

Fifth Holding: Probation and parole revocations are not part of a criminal prosecution; as such, ‘the full panoply of rights due a defendant in [a criminal] proceeding does not apply.” [See] People v. Gray (2023) 15 Cal.5th 152, 163.

Sixth Holding: The Sixth Amendment’s right of confrontation does not apply to probation violation hearings”; rather, “[a] defendant’s right to cross-examine and confront witnesses at a violation hearing stems . . . from the due process clause of the Fourteenth Amendment.” This right to confrontation, however, is not absolute and the parole revocation process should be “‘flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.’” [See] People v. Abrams (2007) 158 Cal.App.4th 396, 400; People v. Winson (1981) 29 Cal.3d 711, 716, 719.

Seventh Holding: In considering the admissibility of hearsay evidence at a parole or probation revocation hearing, a “case-by-case consideration is necessary” because “[u]nder a due process analysis, the importance of a defendant’s confrontation right will vary with the circumstances.” [See] People v. Liggins (2020) 53 Cal.App.5th 55, 66-67.

Eighth Holding: The California Supreme Court has discussed the admissibility of hearsay at probation or parole violation hearings and has established two separate standards for admitting hearsay evidence depending on whether the hearsay is “testimonial” or “documentary” in nature. With respect to testimonial evidence, a preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause. The broad standard of good cause is met (1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199; People v. Winson (1981) 29 Cal.3d 711, 713-714; People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160.

Ninth Holding: First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. Statements which merely record objective facts or observations of fact are generally not testimonial in nature. Nor are official records which serve purposes other than to aid a criminal investigation. People v. Dungo (2012) 55 Cal.4th 608, 619-621; People v. Lopez (2012) 55 Cal.4th 569, 582.

Tenth Holding: In contrast to the good cause standard for testimonial hearsay, documentary hearsay evidence may be admitted at a probation or parole revocation proceeding if there are “sufficient indicia of reliability regarding the proffered material.” In coming to this conclusion, the court noted that the right of confrontation is not absolute, that revocation proceedings should be flexible enough to allow for conventional substitutes for live testimony (including affidavits, depositions, and documentary evidence), and that various federal courts had demonstrated a willingness to consider inadmissible hearsay evidence when it is accompanied by a reasonable indica of reliability. People v. Maki (1985) 39 Cal.3d 707, 709.

Eleventh Holding: Whereas the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor, the witness’s demeanor is “not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts.” (Ibid.) This is because, often, the purpose of such foundational testimony is simply to authenticate the document, and the author, signator or custodian of the document may not even be able to recall from memory the specific contents of the writing. People v. Arreola (1994) 7 Cal.4th 1144, 1157.

Twelfth Holding: In determining whether the erroneous admission of hearsay evidence prejudiced a defendant, we apply the “harmless-beyond-a-reasonable-doubt” standard as the error is of federal constitutional dimension. People v. Arreola (1994) 7 Cal.4th 1144, 1161.

Thirteenth Holding: Post-Release Community Supervision (PRCS) was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felonies. It is similar, but not identical to parole. People v. Gutierrez (2016) 245 Cal.App.4th 393, 399.

Case: 000033

The People concede the trial court erred by not obtaining defendant’s personal waiver of his right to a jury trial on allegations of aggravating circumstances and prior convictions under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.

First Holding: There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1078; Section 16 of Article I of the California Constitution; People v. Sivongxxay (2017) 3 Cal.5th 151, 166; People v. French (2008) 43 Cal.4th 36, 46-47.

Second Holding: A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. [See] Washington v. Recuenco (2006) 548 U.S. 212.

Third 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, ‘[reversal and remand are required] 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 to conclude the upper term was justified. 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. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Lynch (2024) 16 Cal.5th 730, 743; Neder v. United States (1999) 527 U.S. 1, 19.

Fourth Holding: The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal. [See] People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5; Cal. Rules of Court, rule 8.204(a)(1)(B); Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947; People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.

Fifth Holding: With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone. [See] See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150.

Sixth Holding: Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case. [See] People v. Contreras (2015) 237 Cal.App.4th 868, 880; People v. Smith (1983) 33 Cal.3d 596, 599.

Seventh Holding: There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited. [See] Almendarez-Torres v. United States (1998) 523 U.S. 224; People v. Gallardo (2017) 4 Cal.5th 120, 125; Penal Code section 1025(b) & (c); People v. French (2008) 43 Cal.4th 36, 46; People v. Grimes (2016) 1 Cal.5th 698, 737–738; People v. Saunders (1993) 5 Cal.4th 580, 589.

Eighth Holding: As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence. People v. Wilson (2023) 14 Cal.5th 839, 855; Monge v. California (1998) 524 U.S. 721, 728–729.

Ninth Holding: Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667, subdivision (a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony). People v. West (1984) 154 Cal.App.3d 100, 107–108; People v. Park (2013) 56 Cal.4th 782, 798; People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068.

Case: 000034

On appeal, thew defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.

First Holding: Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them. [See] Penal Code section 1203.1 et seq.

Second Holding: A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality. [See] People v. Hall (2017) 2 Cal.5th 494, 498; People v. Lent (1975) 15 Cal.3d 481, 486.

Third Holding: The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition. [See] People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.

Fourth Holding: A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. [See] People v. Welch (1993) 5 Cal.4th 228, 233-234.

Fifth Holding: Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights. [See] People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127; In re I.V. (2017) 11 Cal.App.5th 249, 260; In re Sheena K. (2007) 40 Cal.4th 875, 890.

Sixth Holding: A probation condition must be “sufficiently definite” for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated. [See] People v. Hall (2017) 2 Cal.5th 494, 500.

Seventh Holding: A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad. [See] People v. Patton (2019) 41 Cal.App.5th 934, 946 ; In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be “narrowly drawn”].

Eighth Holding: We review de novo constitutional challenges to probation conditions. People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.

Case: 000035

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding: The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements. [See] People v. Monroe (2022) 85 Cal.App.5th 393, 402; People v. Buycks (2018) 5 Cal.5th 857, 893 [“the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall”].

Second Holding: Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206-1207; In re Estrada (1965) 63 Cal.2d 740; People v. Burgos (2024) 16 Cal.5th 1, 28.

Third Holding: If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided. [See] People v. Tran (2022) 13 Cal.5th 1169, 1207; People v. Sek (2022) 74 Cal.App.5th 657, 669; United States v. Tateo (1964) 377 U.S. 463, 465.

Fourth Holding: If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41; Penal Code section 2900.1.

Normally a pretty quiet little creek. Goes to show what a little rain can do.

You might be able to discern that I’m adding these previews in reverse, and as a result, I may be a little less informative the farther back I go, because I’ve already described some of the same issues in “later” summaries that I’ve already completed. Oh well. Don’t sue me.

A defendant whose now-invalid enhancement for prior prison terms is eligible for full resentencing under section 1172.75 even if the enhancement was not executed;

Sometimes the law restricts whether an enhancement can be imposed in addition to some other enhancement;

On resentencing under section 1172.75, the trial court must seriously deal with the expectations of section 1385, subdivision (c), and its mandate that the court give great weight to listed factors;

A court erred by instructing the jury on when a defendant fails to explain, when the defendant did not actually do so;

Criminal protective orders apply to protect only victims, not those who were not victims.

When looking at the gold dust on Case 000024, you may wonder what some of the holdings have to do with the extraneous enhancement for great bodily injury. He was also convicted of murder in another count. I have included dust from that discussion, in which the court affirmed the conviction because the error was harmless. Many cases have errors but are affirmed because the court determined that the error did not affect the outcome. The lesson we can take from that is that we really need to treat the question of prejudice seriously. The California constitution mandates that no conviction can be reversed unless there is a miscarriage of justice. A finding that the error did not likely affect the result is a finding that there was no miscarriage of justice.

Case: 000023

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

First Holding: Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75 [See] People v. Rhodius (2025) 17 Cal.5th 1050.

Second Holding: The Legislature declared legally invalid any prior-prison-term enhancements imposed before January 1, 2020, except those arising from convictions for sexually violent offenses, and provided for resentencing under Penal Code section 1172.75. [See] SB 136 (2019-2020 Reg. Sess., Stats. 2019, ch. 590, § 1); SB 483 (2021-2022 Reg. Sess., Stats. 2021, ch. 728, § 3); PC 1172.75.

Case: 000024

For the attempted murder of the victim in count 3, the trial court should have stayed the three-year enhancement for great bodily injury under section 12022.7 because it also imposed a term of 25 years to life under section 12022.53, subdivision (d), for personally and proximately causing great bodily injury with a firearm. We will modify the judgment so that it accords with the law. (People v. Hunter (1986) 184 Cal.App.3d 1531, 1537 [“Where multiple prison terms are improperly imposed as in this case, the reviewing court may modify the sentence to stay imposition of the sentence”].)

First Holding: It is improper to impose the enhancement under Penal Code section 12022.7 in addition to enhancement under section 12022.53, subdivision (d), and it must be stayed [See] PC 12022.53, subd. (f); People v. Garcia (2017) 7 Cal.App.5th 941, 949; People v. Hunter (1986) 184 Cal.App.3d 1531, 1537.

Second Holding: If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt. [See] People v. Hernandez (2011) 51 Cal.4th 733, 745; Chapman v. California (1967) 386 U.S. 18, 24; People v. Canizales (2019) 7 Cal.5th 591, 615; People v. Concha (2010) 182 Cal.App.4th 1072, 1087.

Third Holding: A harmless error analysis may include consideration of implausible defense testimony and closing argument to the jury. [See] People v. Fayed (2020) 9 Cal.5th 147, 195 ; People v. Zambrano (2004) 124 Cal.App.4th 228, 243; People v. Flores (2016) 2 Cal.App.5th 855, 881.

Fourth Holding: With respect to errors alleged regarding the conviction of the murder, the error can be found to be harmless beyond a reasonable doubt even under the Chapman standard, as the court concludes in this instance. [See] People v. Salas (2006) 37 Cal.4th 967, 983-984 ; People v. Garcia (2001) 25 Cal.4th 744, 755 ; Wright v. West (1992) 505 U.S. 277, 296; Hanrahan v. Thieret (7th Cir. 1991) 933 F.2d 1328, 1340; Phelps v. Duckworth (7th Cir. 1985) 772 F.2d 1410, 1413-1414.

Fifth Holding: The standard of review on sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt, viewing evidence in light most favorable to prosecution. [See] People v. Zamudio (2008) 43 Cal.4th 327, 357.

Sixth Holding: Substantial evidence is evidence that is “reasonable, credible, and of solid value.” [See] People v. Zamudio (2008) 43 Cal.4th 327, 357.

Seventh Holding: A conviction for attempted murder requires proof that the defendant intended to kill the victim and proof of a direct but ineffectual act toward accomplishing that goal. But a finding of willfulness, deliberation, and premeditation requires more than a showing of an intent to kill. [See] People v. Medina (2019) 33 Cal.App.5th 146, 153; People v. Gomez (2018) 6 Cal.5th 243, 282.

OTHER HOLDINGS: [NOTE BY GARY–THIS CASE HAD NUMEROUS OTHER GEMS, AND I HAVE PUT THE ADDITIONAL PRINCIPLES IN THIS ONE PARAGRAPH, FOLLOWED IN THE NEXT PARAGRAPH BY THE AUTHORITIES (KEYED TO THE ROMAN ENUMERATION OF THE MULTIPLE ADDITIONAL PRINCIPLES).] i. As for premeditation and deliberation, the five-second pause between the shootings gave the defendant a chance to reflect, evidence of planning; ii. The manner of the shooting also reflects deliberation and premeditation, because the defendant fired multiple shots at a fleeing victim, not a single shot during a direct confrontation; iii. attempted murder is not divided into degrees, but greater punishment if premeditated; iv. A criminal defendant can clarify a misunderstanding concerning a jury’s verdict in the trial court and failure to object to form of verdict forfeits objection of technical error in the form; v. attempted petty theft with a prior conviction, is a“ ‘non-crime,’ ” because in essence, it is impossible to attempt to commit a crime that has a prior conviction as an element”; vi. There can be a logical contradiction inherent in the concept of certain offenses, including “attempted involuntary manslaughter”; vii. To bring a successful appellate challenge to the sufficiency of the evidence, a defendant “must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury’s verdict; viii. When reviewing a claim the trial court erred in denying a motion for a judgment of acquittal (§ 1118.1) that was made at the close of the prosecution’s case-in-chief, the appellate court considers the evidence “as it stood at that point”; ix. it is the appellant’s burden to demonstrate error “based on the appellate record and with meaningful legal analysis [with adequate citation to the record]”; ix. The type of evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) planning, (2) motive, and (3) manner of killing. But these are not the exclusive means for establishing premeditation and deliberation. And they “need not be present in any particular combination to find substantial evidence of premeditation and deliberation”; x. The opinion sets forth various examples of planning; xi. Arguments not raised below are forfeited; xii. The court conducts de novo review to detemine if jury miscontrued or misapplied the law; xiii Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions; xiv. errors in abstract may be corrected.

ADDITIONAL AUTHORITIES [NOTE BY GARY: THESE ARE THE SUPPORTING AUTHORITIES FOR THE NUMERIOUS PRINCIPLES SET FORTH IN THE PREVIOUS PARAGRAPH.][See] i. People v. San Nicolas (2004) 34 Cal.4th 614, 658; ii. People v. Boyd (1985) 38 Cal.3d 762, 769-770 and People v. Lunafelix (1985) 168 Cal.App.3d 97, 102; iii. People v. Favor (2012) 54 Cal.4th 868, 876-877; People v. Solis (2015) 232 Cal.App.4th 1108, 1113, fn. 2; see § 664, subd. (a); iv. People v. Johnson (2015) 61 Cal.4th 734, 784; People v. Bean (1989) 213 Cal.App.3d 639; vi. People v. Robins (2020) 44 Cal.App.5th 413; vii. People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574; viii. People v. Cole (2004) 33 Cal.4th 1158, 1212-1213; viii. People v. Dauterman (2024) 104 Cal.App.5th 603, 609; ix. People v. Anderson (1968) 70 Cal.2d 15, People v. Lenart (2004) 32 Cal.4th 1107, 1127, and People v. Stitely (2005) 35 Cal.4th 514, 543; x. People v. Young (2005) 34 Cal.4th 1149, 1183, People v. San Nicolas, supra, 34 Cal.4th at p. 658, Gomez, supra, 6 Cal.5th at p. 282, People v. Brady (2010) 50 Cal.4th 547, 564; xi. People v. Richardson (2008) 43 Cal.4th 959, 1022-1023; xii. People v. Carrington (2009) 47 Cal.4th 145, 192, People v. Shaw (2002) 97 Cal.App.4th 833, 838; xiii. People v. Lewis (2001) 25 Cal.4th 610, 646; xiii. People v. Mitchell (2001) 26 Cal.4th 181.

Case: 000025

The California Department of Corrections and Rehabilitation notified the court that the defendant was entitled to resentencing under Penal Code section 1172.75. He contends the court did not comply with the requirements of section 1385, subdivision (c), as amended. We agree. Accordingly, we vacate the sentence and remand the matter for further proceedings. There was no discussion at the resentencing hearing in this case of whether dismissal of one or more of the firearm enhancements would endanger public safety.

First Holding: Penal Code section 1385, subdivision (c) requires the court to give great weight to listed factors. [See] Penal Code section 1385.

Second Holding: “Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [See] Section 1385, subdivision (c)(2).

Case: 000026

Because of error in instructing the jury with CALCRIM 361, we reverse the convictions and remand for further proceedings. The trial court erred by instructing the jurors with CALCRIM No. 361 because the defendant’s testimony did not represent a complete failure to explain or deny incriminating evidence, nor did he claim a lack of knowledge about something incriminating that he could reasonably be expected to have known.

First Holding: It is error to instruct on failure to explain or deny where defendant did not fail to explain or deny [See] People v. Cortez (2016) 63 Cal.4th 101.

Second Holding: We review a claim of instructional error de novo [See] People v. Parker (2022) 13 Cal.5th 1, 66; People v. Cole (2004) 33 Cal.4th 1158, 1217.

Third Holding: That there was a prior hung jury may be persuasive on the question of the prejudice from the error [See] People v. Soojian (2010) 190 Cal.App.4th 491, 520.

Fourth Holding: The Court did not need to determine whether Chapman or Watson standard of review applied, as the error was not harmless under either standard.

Case: 000027

The court struck the name of the minor’s mother from the criminal protective order because she was not a victim of defendant’s crimes. The court also granted an additional credit of five days for time served.

Holding: A protective order cannot be issued to cover those not a victim of defendant’s crime [See] PC 136.2(i)(1); People v. Lopez (2022) 75 Cal.App.5th 227, 236-237; People v. Walts (2025) 112 Cal.App.5th 127.

This is really hard to see, but it is a mother opossum with at least six little possumettes clinging to her sides and back, captured in the wee hours by an infra-red trail camera. Very cool. I’d share the video but I’m not sure I can spare the space.

By the way, I’ve noticed that the system I’ve adopted for recording from the opinions the information I want to include in my posts results in several inconsistencies. As I have said before, I’m anonymizing all identities, and I think I’ve done that. But I see that sometimes I switch between a third party viewpoint (“The court stated xyz”) and the first person perspective the author of the appellate opinion (“We have determined that abc”). It’s a little easier for me to leave it in the opinion author’s first person than to go in and monkey around with the agreement of subject-verb in order to get “We …” to “The court ….” So I may experiment and be inconsistent until I’ve settled on what I feel most comfortable with. I also see that my copying and pasting and melding bits and pieces results in missing periods or multiple adjacent semicolons, and probably other little nuisance bits of detritus I’d rather not leave in but somehow didn’t notice on my first few edits. I’m hopeful that between now and when I formally roll out the website I will have ironed out the kinks. In the meantime, I appreciate your patience. (Not that anyone has actually run across my blog except maybe family, but hey, I can pretend you are out there listening to me raptly, no?)

By the way redux (and I should state this in a more permanent way that doesn’t disappear when this post is pushed off the page), I have concluded I will not entirely comply with the citation style dictated by the California Style Manual adopted by the California Supreme Court. Specifically, I have chosen not to italicize the case names (or any other words normally italicized per the Manual). Not that anyone will, but if someone WANTS to copy portions of the summaries to paste into some other archive maintained by the person, I want it to be as painless as possible. Formatting carries the potential of not moving well from one platform to another. I know that’s true between some operating systems and some word processing applications. I do not know if that is true in copying from websites. But I do know that when I have copied information from various websites and pasted into whatever document I’m working on, sometimes it works, and sometimes there’s a lot of clean-up needed. I want to keep this as simple for you as I can. I see no need for me to format my citations in a way that makes it difficult for you to quickly copy a citation and paste it elsewhere.

Also, the “First Holding” etc. is not necessarily the first holding in the case. It’s the first holding I have listed, but I’m sort of arbitrary at times. So you might see a case citation that says something like “See [case name but no citation], supra,” and yet the cited case has not yet appeared. For some, I’ve corrected it by inserting the full citation. For others, I’ve left them as is, because in a subsequent “holding” the full citation appears. In this post, you’ll see at least one example of that (the reference to “Moine” in Case 000014). I’ll try to get that cleaned up by the time I’m ready to fully engage.

In case that wasn’t enough intro for you, here’s today’s menu:

The court miscalculated credit for time served for time spent in a residential program involuntarily;

We learn a little bit about eligibility for mental health diversion;

In a case that isn’t necessarily a win, we learn about the duty of trial counsel to retain a copy of the defendant’s file for at least as long as the term of incarceration;

Miscreancy committed after the newly shortened maximum period of probation cannot be the bases for revocation of probation that has expired by law;

A facially sufficient petition for recall under section 1172.6 cannot be summarily denied at the initial stage unless the petition and record in the case establish conclusively that the defendant is ineligible as a matter of law;

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;

What a defendant can do if incarcerated and the attorney fails to timely file a notice of appeal that the defendant expected the attorney to file;

The court must obtain a probation report before sentencing the defendant on a probation revocation;

We learn a little more about when a court is not permitted to summarily deny a defendant relief under section 1172.6;

For mental health diversion, the burden rests with the prosecution to prove by clear and convincing evidence that the disorder was not a causal factor in the crime.

Case: 000013

The trial court erred in calculating defendant’s custody credits. Because he participated in the sober living program pursuant to a court order, he is entitled to custody credit for the time he spent there. The People concede this issue. We agree with the parties.

First Holding: Credit for time served that is miscalculated must be corrected. [See] Penal Code section 2900.5, subdivision (a), “when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment. . . .” Per subivision (b), such “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.”

Second Holding: Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings. [See] People v. Davis (2023) 87 Cal.App.5th 771, 777 [“Section 2900.5 has two components: First, ‘“that the placement be ‘custodial,””’ and second, ‘“that the custody be attributable to the proceedings relating to the same conduct for which defendant has been convicted”’”]. People v. Billy (2024) 107 Cal.App.5th 246, 262-264, distinguished for example, in which the defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5.”

Case: 000014

On appeal, the defendant contends that the trial court abused its discretion in denying her petition for mental health diversion. We agree that the court applied an incorrect legal standard in ruling on her petition. And we disagree with the People that we can imply from the court’s ruling the missing findings required by the statute. We thus conditionally vacate her no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding: Application of an incorrect legal standard on Mental Health Diversion requires reversal. [See] PC 1001.36, subdivision (c), which required the court to consider whether her symptoms would respond to mental health treatment; whether she consented to diversion and waived her speedy trial rights; whether she agreed to comply with treatment as a condition of diversion; and whether she would pose an unreasonable risk of danger to public safety; Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute].) And a trial court abuses its discretion when it applies the wrong legal standard. (People v. Moine, supra, 62 Cal.App.5th at p. 449.)

Second Holding: The court reviews denial of Mental Health diversion under the abuse of discretion standard. [See] (People v. Moine (2021) 62 Cal.App.5th 440, 448-449.) “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence.”

Third Holding: There is a presumption of correctness in court orders [See] People v. Giordano (2007) 42 Cal.4th 644, 666 –We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it.; People v. Ramirez (2021) 10 Cal.5th 983, 1042–Absent evidence to the contrary, we presume a trial court knew and applied the law; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“When the record clearly demonstrates what the trial court did, we will not presume it did something different”]; Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015 — “When the record clearly demonstrates what the trial court did, we will not presume it did something different.”

Case: 000015

Note from Gary: This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already). And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation. What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I won’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding: Counsel has a duty to turn over client’s file to client [See] State Bar proposed opinion 19-0004 (duty to retain files while client is alive); State Bar Rules of Prof Conduct 1.16.

Second Holding: As of 1/1/26, Penal Code section 1054.9 will be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. [See] PC 1054.9; Barnett v. Superior Court (2010) 50 Cal.4th 890 (Barnett) to address whether defendants had the burden to show that the requested discovery materials actually exist and are material, and whether section 1054.9 applies to discovery materials possessed by out-of-state agencies. (Barnett, at p. 897.) People v. Superior Court (Morales) (2017) 2 Cal.5th 523, a case in which our Supreme Court found that because section 1054.9 provides the trial court jurisdiction “to grant postconviction discovery to the extent consistent with the statute,” Code of Civil Procedure section 187 provides the court the inherent power to issue orders for the preservation of that evidence pending the filing of such a motion. Satele v. Superior Court (2019) 7 Cal.5th 852 addressed the scope of section 1054.9 and whether its provisions applied to evidence held by the court.

Third Holding: Review of nonappealable order is by petition for writ of mandate [See] In re Steele (2004) 32 Cal.4th 682, 692 [“after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal].

Fourth Holding: The appellate Court can treat the appellate opening brief as a petition for writ of mandate [See] Olson v. Cory (1983) 35 Cal.3d 390, 401; Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222.

Fifth Holding: Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel. [See] Legislative history, AB 1987 in 2018.

Sixth Holding: The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney [See] Rose v. State Bar (1989) 49 Cal.3d 646, 653–655; White v. Molfetta (2021) 64 Cal.App.5th 628.

Seventh Holding: section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Eighth Holding: Well, not exactly a holding in the opinion, but here’s exactly what subdivision (g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”

I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.” That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.” [Emphasis added by me.]

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows (bold italics added by me): “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.” Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration. 

Case: 000016

Assembly Bill No. 1950 (2019–2020 Reg. Sess.) applied retroactively to shorten the defendant’s probation term from four years to two years, thereby retroactively depriving the trial court of jurisdiction to revoke his probation after passage of the two-year mark and rendering the revocation and termination of his probation invalid. [GARY NOTE: Penal Code sections 1203a for misdemeanors and 1203.1 for felonies, and there are exceptions to the one-year and two-year periods mentioned in those sections, so be sure to look at the actual applicable statute if the issue arises.]

Holding: Acts committed after the statutory shortening of the length of the probation term do not constitute violations of probation [See] People v. Faial (2025) 18 Cal.5th 199 ; Assembly Bill No. 1950 (2019–2020 Reg. Sess.)

Case: 000017

We reverse the court’s denial of the resentencing petition, which was not based on a review of the record, and remand for further proceedings under section 1172.6, subdivision (c).

First Holding: The trial court may deny a section 1172.6 petition at the prima facie stage only if “the petition and record in the case establish conclusively that the defendant is ineligible for relief” as a matter of law. [See] People v. Hickman (2025) 110 Cal.App.5th 1262; People v. Strong (2022) 13 Cal.5th 698, 707; People v. Rodriguez (2024) 103 Cal.App.5th 451, 456; People v. Patton (2025) 17 Cal.5th 549, 558–559–If a petitioner files a facially sufficient section 1172.6 petition by indicating, among other criteria, that he meets the statutory requirements for relief,it triggers the prosecution’s duty to submit a response and the petitioner’s right to file a reply on the issue of whether a prima facie case for relief exists.

Second Holding: The record of conviction includes documents from jury trial such as jury instructions and verdict forms. [See] People v. Gallardo (2024) 105 Cal.App.5th 296.

Third Holding: We review an order denying a petition at the prima facie stage de novo. [See] People v. Hickman (2025) 110 Cal.App.5th 1262.

Fourth Holding: The right to seek replacement of counsel under Marsden applies at all stages of a criminal proceeding. [See] People v. Armijo (2017) 10 Cal.App.5th 1171, 1179; People v. Marsden (1970) 2 Cal.3d 118; People v. Carter (2024) 15 Cal.5th 1092, 1096 [Marsden motion sought disqualification of the public defender’s office and individual deputy public defender].

Fifth Holding: The record of conviction will inform the court’s prima facie inquiry, allowing the court to distinguish clearly meritless claims [See] People v. Lewis (2021) 11 Cal.5th 952, 971.

Case: 000018

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding: The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence [See] Erlinger v. United States (2024) 602 U.S. 821. In People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court addressed section 1170, subdivision (b)(3)’s prior conviction exception in light of the holding in Erlinger. “To avoid any application that would set section 1170, subdivision (3) at odds with the high court’s constitutional interpretation, [the court] interpret[ed] section 1170, subdivision (3)’s procedure in a manner that is coextensive with high court dictates.” (Id. at p. 1086.) Thus, in accordance with Erlinger, the court held that “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.”

Second Holding: Failure to object generally results in forfeiture and can apply to constitutional claims [See] People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [“The forfeiture doctrine is a ‘well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court’ ”]; People v. Scott (2015) 61 Cal.4th 363, 406 [“ ‘A party in a criminal case may not, on appeal, raise “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” if the party did not object to the sentence at trial’ ”]; People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]; People v. Achane (2023) 92 Cal.App.5th 1037.

Third Holding: A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney [See] People v. French (2008) 43 Cal.4th 36, 46.

Fourth Holding: An appellate court can exercise discretion to address a forfeited issue [See] People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.”].)

Fifth Holding: Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has “engaged in violent conduct that indicates a serious danger to society” or that “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness” [See] People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court addressed section 1170, subdivision (b)(3)’s prior conviction exception in light of the holding in Erlinger. “To avoid any application that would set section 1170, subdivision (3) at odds with the high court’s constitutional interpretation, [the court] interpret[ed] section 1170, subdivision (3)’s procedure in a manner that is coextensive with high court dictates.” (Id. at p. 1086.) Thus, in accordance with Erlinger, the court held that “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”; People v. Lynch (2024) 16 Cal.5th 730, 776.

Case: 000019

There is not much discussion in this case. Benoit relief was granted on a petition for writ of habeas corpus seeking a finding that the notice of appeal was deemed constructively filed timely. That process is potentially available to a defendant whose notice of appeal was NOT filed with the 60 days (for a felony, 30 days for a misdemeanor), if certain conditions exist. The conditions are:(a) the defendant has been incarcerated during the entire period that a notice of appeal may be filed; (b) during that period the defendant requested that the attorney file one (or the attorney has otherwise conveyed to the defendant that the attorney will file the notice of appeal); and (c) the attorney failed to timely file the notice of appeal. The defendant may file a petition for writ of habeas corpus in the appellate court and ask that the court deem the notice of appeal to have been constructively filed timely. Although not discussed in this case, Benoit relief is generally NOT granted if the defendant was NOT in custody the entire 60 days, OR if the defendant did not ask the attorney within that 60 days to file a notice of appeal. Other than the reference to the Benoit case, the opinion does not contain any authority. I have added the two pertinent rules from the Rules of Court and a few case citations, none of which appears in the opinion, but I think it’s valuable to understand the importance of meeting that jurisdictional requirement.

First Holding: Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed [See] In re Benoit (1973) 10 Cal.3d 72.

Second Holding: In felony cases, the notice must be filed within 60 days. [See] Rule 8.308. Time to appeal: (a) Normal time: Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which pertains to emergency tolling made necessary by the occurrence or danger of an earthquake, fire, public health crisis, or other public emergency, or by the destruction of or danger to a building housing a reviewing court] , no court may extend the time to file a notice of appeal. (b) Cross-appeal If the defendant or the People timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 30 days after the superior court clerk sends notification of the first appeal, whichever is later. (c) Premature notice of appeal A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order. ( (d) Late notice of appeal The superior court clerk must mark a late notice of appeal “Received [date] but not filed,” notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project.

Third Holding: In misdemanor appeals, the notice must be filed within 30 days. [See] Rule 8.393. Time to appeal A notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Fourth Holding: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. [See] In re G.C. (2020) 8 Cal.5th 1119; People v. Mendez (1999) 19 Cal.4th 1084, 1094: An untimely notice of appeal is `wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.

Case: 000020

Following a revocation of probation, the defendant was sentenced to State Prison. He appeals, asserting five arguments, the first of which is that the trial court erred in not obtaining a probation report before sentencing him. The Attorney General concedes that the court erred and that the error was prejudicial. We agree and we reverse.

First Holding: Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. [See] Penal Code section 1203(b)(1); Penal Code section 1203, subdivision (b)(4), provides that: “The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.”

Second Holding: The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record. [See] People v. Llamas (1998) 67 Cal.App.4th 35, 40.

Third Holding: Prejudice is measured under Watson (People v. Watson (1956) 46 Cal.2d 818) [See] People v. Dobbins (2005) 127 Cal.App.4th 176.
Fourth Holding: Stipulation to waive referral to probation must appear in the minutes [See] 1203(b)(4).

Case: 000021

As explained below, we agree with the parties the timing of the defendant’s plea does not preclude him relief under section 1172.6 because, at the time of his plea, he could have been convicted under invalidated theories of attempted murder. We also find his admissions, including his admission to acting with an intent to kill, did not establish all the elements of a valid theory of attempted murder under current law. Accordingly, we reverse the summary denial of his petition and remand for further proceedings.

First Holding: Where a petition states eligibility on its face, and the court examines the record of the conviction suggesting otherwise, the defendant must be given an opportunity to file an amended petition [See] People v. Patton (2025) 17 Cal.5th 549.

Second Holding: Effective January 1, 2019, Senate Bill 1437 amended the felony murder rule and eliminated 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.’” [See] People v. Lewis (2021) 11 Cal.5th 952, 959.; SB 1437 (2017–2018 Reg. Sess., Stats. 2018, ch. 1015); SB 775 ((2021–2022 Reg. Sess., Stats. 2021, ch. 551; PC 1172.6; PC 1170.95.

Third Holding: At the prima facie hearing, the trial court may examine the record of conviction to assess whether it refutes a defendant’s claim of eligibility. [See] People v. Patton (2025) 17 Cal.5th 549.

Fourth Holding: It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing. [See] People v. Lopez (2023) 88 Cal.App.5th 566, 576.

Fifth Holding: When the defendant’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea and the defendant’s express admissions at the plea colloquy. [See] People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212; People v. Fisher (2023) 95 Cal.App.5th 1022, 1029; (Disagrees with People v. Glass (2025) 110 Cal.App.5th 922).

Sixth Holding: If the trial court denies the petition without issuing an order to show cause, it must state its reasons. [See] 1172.6(c).

Seventh Holding: We independently review a summary denial of a section 1172.6 petition for resentencing [See] People v. Gaillard (2024) 99 Cal.App.5th 1206.

Case: 000022

The court imposed an improper burden on the defendant to demonstrate his mental disorder was a significant factor in the charged offense by reversing the statutory presumption in his favor on this issue. Because of this error, the court found defendant failed to prove he was eligible for mental health diversion as provided under Penal Code section 1001.36. The People concede the court’s error. Because the court did indeed use an erroneous standard, we will reverse and remand to allow the court to reevaluate the diversion request with a correct understanding of the law.

First Holding: The prosecution bears burden of proof by clear and convincing evidence that mental health diagnosis was not a causal factor in the crime. [See] PC 1001.36; People v. Harlow (2025) 113 Cal.App.5th 485, 490.

Second Holding: The court reviews the trial court’s denial of a request for mental health diversion for abuse of discretion. [See] Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1016; People v. Moine (2021) 62 Cal.App.5th 440, 448–449; PC 1001.36, subd. (a) [noting the court “may, in its discretion,” grant pretrial diversion].)

Third Holding: Diversion is discretionary, even if eligibility and suitability are present [See] Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, at pp. 892–893; People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888.

Fourth Holding: If eligibility is established, the trial court must then consider whether a particular individual is suitable, by rendering a positive finding on each of four factors: (1) that “[i]n the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder … would respond to mental health treatment”; (2) that the defendant consent to diversion and waive speedy trial rights; (3) that the defendant will agree to comply with treatment as a condition of diversion; and (4) that the “defendant will not pose an unreasonable risk of danger to public safety,” which is defined as the likelihood the defendant would commit a new violent felony from a limited subset of particularly violent crimes, colloquially referred to as a “super strike.” [See] Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893; PC 1001.36, subd. (c)(4).

Fifth Holding: Unreasonable risk to public safety is defined as likelihood of commission of super strike as defined [See] PC 1001.36, subd. (c)(4); PC 1170.18; PC 667 subd. (c); § 667, subd. (e)(2)(C)(iv).

A nighttime visitor caught in stunning infra-red pose.

If you started reading this blog from the very first post, this may come as a surprise to you. If you started from the latest you saw and worked back to the beginning, then no surprise, no surprise. Some of the rulings just keep cropping up. Which is why I think it is important to know what errors may potentially arise in your cases, because they aren’t that uncommon. On today’s platter:

We see some actual aggravating factors that were relied on despite a lack of a jury trial, in the context of “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”;

Restitution fines are uncollectible after 10 years.

Case: 000011

The trial court prejudicially committed constitutional and statutory error in imposing the upper term sentence based on aggravating factors not tried to the jury. The factors relied on were: the victim’s particular vulnerability; the offense was carried out with planning, sophistication, and professionalism; the defendant engaged in violent conduct which indicated a serious danger to society; the defendant had numerous prior convictions and they were of increasing seriousness.

First Holding: The defendant is entitled to a jury trial on aggravating factors, which must be proved beyond a reasonable doubt before they can be relied on to impose the upper term (unless they are stipulated to by the defendant). See Penal Code section 1170.

Second Holding: The standard of review for evaluating the improper use of untried aggravating fact is whether error was harmless beyond a reasonable doubt [See] Chapman v. California (1967) 386 U.S. 18; Erlinger v. United States (2024) 602 U.S. 821; Apprendi v. New Jersey (2000) 530 U.S. 466; See People v. Lynch (2024) 16 Cal.5th 730 (which held that this jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Third Holding: [The parties] agree the court erred in relying on those circumstances to impose the upper term on the principal count. (See People v. Wiley (2025) 17 Cal.5th 1069, 1078; People v. French (2008) 43 Cal.4th 36, 47.) Their disagreement centers around whether such error was prejudicial under the circumstances. On the record before us, we conclude it was.

Case: 000012

The restitution fine must be vacated because it was originally imposed more than 10 years ago. The court must calculate the actual time the defendant has already served and credit that against the subsequent sentence.

First Holding: Restitution fines are uncollectible after 10 years [See] Penal Code section 1465.9.

Second Holding: The court must recalculate credit for time served on resentencing. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 23.

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.