Category Archives: Amelioration

Amelioration, Sentencing, Standard of review

Case 000021

Posted on by Gary McCurdy

Error and/or relief

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.

Authority:

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.

Authority:

SB 1437

SB 775

PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959

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.

Authority:

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

Authority:

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.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212

People v. Fisher (2023) 95 Cal.App.5th 1022, 1029

(Disagreeing) 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.

Authority:

PEN 1172.6(c)

Seventh Holding:

We independently review a summary denial of a section 1172.6 petition for resentencing.

Authority:

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

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000017

Posted on by Gary McCurdy

Error and/or relief

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(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. 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.

Authority:

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

Second Holding:

The record of conviction includes documents from jury trial such as jury instructions and verdict forms.

Authority:

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.

Authority:

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.

Authority:

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.

Authority:

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

 

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000008

Posted on by Gary McCurdy

Error and/or relief

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.

Authority:

SB 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.

Authority:

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.

Authority:

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.

Authority:

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 requires some affirmative action.

Authority:

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.

Authority:

In re K.M. (2022) 75 Cal.App.5th 323, 329

 

Amelioration, Sentencing

Case: 000004

Posted on by Gary McCurdy

Error and/or relief:

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.

Authority:

AB 333

PEN 186.22

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

The DA may choose to retry those allegations on remand.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576;

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000001

Posted on by Gary McCurdy

Error and/or relief:

On resentencing more than 10 years after conviction, the court must strike the unpaid balance of the $10,000 restitution fine, and it must recalculate the defendant’s credit for time served.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9(d) [Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.]

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37