Category Archives: Appellate Principles

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

Authority:

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]

Fourth Holding:

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. The court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

Almendarez-Torres v. United States (1998) 523 U.S. 224

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

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

People v. Lynch (2024) 16 Cal.5th 730, 768 [a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established]

Eighth Holding:

A Sixth Amendment sentencing violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

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

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

 

 

Appellate Principles, Effective assistance of counsel, Equal protection, Fines and fees, Sentencing

Case 000703

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing two $30 criminal conviction assessment fees and two $40 court operations assessment fees without first determining whether the defendant had the ability to pay those fees.

First Holding:

The imposition of ancillary payments raises equal protection issues. Upon request, a court must consider a defendant’s inability to pay before imposing a court operations assessment (Pen. Code, sec. 1465.8(a)(1)) or a court facilities assessment (Gov. Code, sec. 70373(a)(1)).

In making this determination, a court must allow the parties to present any relevant evidence or argument on the matter. For these reasons, we vacate the $80 court operations assessment fees and $60 criminal conviction assessment fees and remand the matter to afford the trial court an opportunity to determine in the first instance whether the defendant has the ability to pay those costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

To avoid passing upon whether the defendant’s trial attorney failed to provide constitutionally adequate assistance, we exercise our discretion to excuse the defendant’s forfeiture of his challenge to the imposition of the ancillary costs.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [noting that a reviewing court may reach the merits of a forfeited claim t forestall a defendant’s claim of ineffective assistance of counsel]

Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment

Case 000702

Posted on by Gary McCurdy

Error and/or relief

Defendant’s sentence is vacated, and the matter is remanded for resentencing with directions that the trial court exercise its sentencing discretion without considering aggravating factors that were not found true by the jury.

First Holding:

The court relied on circumstances in aggravation that were not submitted to the jury. The trial court’s authority to impose an upper term sentence is addressed in section 1170(b), which authorizes an upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury or by the judge in a court trial.

There was no objection, and the upper term sentence could have been imposed based on only the aggravating factors of victim vulnerability and taking advantage of a position of trust, which were found true by the jury. Therefore, the upper term is not a sentence that could not lawfully be imposed under any circumstance in the particular case.

Thus, the unauthorized sentence exception to the forfeiture rule may not apply under the facts in this case. However, to forestall a future claim of ineffective assistance of counsel, we exercise our discretion to excuse any possible forfeiture and address defendant’s claim on the merits.

Authority:

PEN 1170

People v. Scott (1994) 9 Cal.4th 331, 354, 355–356 [holding defendant waived claim that trial court abused its discretion in aggravating his sentence based on factors that were inapplicable, duplicative, and improperly weighed]

People v. Achane (2023) 92 Cal.App.5th 1037, 1043

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6

Second Holding:

Section 1170(b) triggers the Sixth Amendment jury trial right with respect to every aggravating factor (other than a prior conviction) the trial court uses to justify an upper term sentence, and under the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

Applying these principles, we find the trial court erred in relying on the defendant’s continuing failure to take accountability for his actions. This additional aggravating factor was not decided by the jury but, rather, was a conclusion made by the trial court based on both defendant’s trial testimony and his continuing claim of innocence at sentencing.

Although the jury did not believe defendant’s testimony as to six of the nine counts charged, it was never asked to decide the issue of his lack of accountability, and since the jury was excused before sentencing, it obviously could not have made a finding that defendant continued to fail to take accountability. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Fifth Holding:

The People did not prove, and could not have proved, a lack of remorse or lack of accountability without burdening defendant’s constitutional right to testify at trial and maintain his innocence.

Authority:

People v. Key (1984) 153 Cal.App.3d 888, 900 [lack of remorse may not be used as aggravating factor when defendant denies guilt and evidence is conflicting]

People v. Bonilla (2007) 41 Cal.4th 313, 356 [at penalty phase of capital crime prosecutor may properly comment on a defendant’s lack of remorse as relevant to whether remorse is present as a mitigating circumstance but may not suggest that lack of remorse is an aggravating factor]

Abstracts and Minutes, Appellate Principles, Gary Musings, Jurisdiction, Sentencing

Case 000701 and Gary Musings

Posted on by Gary McCurdy

Error and/or relief

The court erred when it failed to order joint and several liability for the victim’s restitution. The co-defendant was tried separately and sentenced by a different judge in an earlier proceeding.

First Holding:

In the co-defendant’s proceedings, the court ordered joint and several liability for the victim’s restitution, but in sentencing the defendant in this proceeding, the court (a different judge) made no mention of joint and several liability. A joint and several direct victim restitution order under section 1202.4(f) is not expressly permitted by statute, but is also not prohibited. The trial court therefore has discretion to make the obligation of multiple codefendants joint and several.

Authority:

People v. Arnold (1994) 27 Cal.App.4th 1096, 1099

People v. Neely (2009) 176 Cal.App.4th 787, 800

People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052

Second Holding:

A restitution order is intended to compensate the victim for the actual loss he or she incurred; however, it is not intended to provide the victim with recovery greater than that amount. When multiple defendants are culpable, the issue of double recovery is avoided when the trial court holds codefendants jointly and severally liable for the full amount of a crime victim’s economic loss.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172

People v. Fortune (2005) 129 Cal.App.4th 790, 794–795

People v. Leon (2004) 124 Cal.App.4th 620, 622 [a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Third Holding:

An abstract of judgment may be modified to reflect that the victim restitution order is a joint and several obligation.

Authority:

People v. Cornejo (2016) 3 Cal.App.5th 36, 43

People v. Neely (2009) 176 Cal.App.4th 787, 800–801 [ordering modification of the judgment to expressly state that the restitution order is joint and several as to the defendant and the codefendant]

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [to avoid double recovery, appellate court modified judgment to provide expressly that the direct victim restitution ordered is joint and several]

Fourth Holding:

As a matter of equity, and because there is no double recovery, the matter should be remanded so that the court can modify the restitution order to make liability joint and several. Section 1202.46 confers continuing jurisdiction to modify an order for victim restitution.

Authority:

PEN 1202.46

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

Gary Musings, Triggered By Third Holding:

Gary Musings note: I think the “Third Holding” and the authorities cited by the court demonstrate a prime example of the importance of reading the cases cited, and do not simply rely on what I have written in these summaries. A critical component of this decision that causes me pause is that the trial court did NOT make an order for joint and several liability; it apparently made no comment on it at all. This is not a case where the record shows that the court did so order but the order didn’t get reported properly in the abstract of judgment or minute order. It is not a case where the judge made comments indicating an intent to order joint and several liability, but the order was not expressed by the court. This is a case where the judge simply gave no indication at all regarding joint and several liability with the co-defendant who had been sentenced in a different proceeding.

First, I do not doubt that the Court of Appeal has the authority to modify the judgment OR the abstract of judgment. Section 1260 states, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

But if I had submitted a brief that relied on the Cornejo, Neely, and Blackburn cases as authority for the court to actually change a judgment by ordering modification of the abstract of judgment, I think I could legitimately expect the opposition to point out the following rebuttals.

(A.) One cannot tell from the Cornejo decision whether the trial court had ordered joint and several liability but it wasn’t reflected in the abstract, or whether the trial court was silent and the appellate court simply modified the judgment by modifying the abstract (which is what happened in this Case 000701). Thus, we cannot determine whether the modification simply recorded the actual order in the abstract of judgment or the appellate modified the judgment. We don’t know.

(B.) In Neely, the trial court DID order joint and several liability, and the abstract simply did not reflect that, so the appellate court ordered the abstract amended to reflect what the trial court ordered. (That is NOT what happened in this Case 000701.)

(C.) In Blackburn–a case somewhat similar to this Case 000701 in that both defendants were sentenced at different times–the appellate court concluded that the trial court DID intend joint and several liability. Blackburn said, “The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. It seems glaringly obvious that is what it did here. In this light, there is no double recovery; nor is Jackson entitled to have Blackburn’s restitution obligation credited against his. Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.”

In other words, Blackburn approached it by clarifying what was “glaringly obvious”–that the trial court actually did order joint and several liability.

I think this points out the importance of actually reading the cases that you, as the defense attorney, intend to rely on, AND of actually reading the cases that your opposition cites.

And don’t stop there. Suppose Case 000701 was actually a published opinion, and you wanted to rely on it to get the appellate court in your client’s case to modify the abstract of judgment. If all you cited was the published decision in People v. Case 000701, you MIGHT prevail. But if your opposing party delved deeper, it could respond with an argument discounting the authority of People v. Case 000701, because Case 000701 (arguably) relied on cases that were not authority because they really did not have the same situation as People v. Case 000701. Remember the appellate principle: A case is not authority for propositions not considered. (People v. Chavez (2020) 54 Cal.App.5th 477, 480).

 

Amelioration, Appellate Principles, Sentencing

Case 000698

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall under section 1172.6 on the grounds that he had previously filed a petition that was denied. Because the record demonstrates that the defendant is prima facie eligible for relief under case law that has emerged since his original petition was denied in 2020, we remand the matter to the trial court with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6(d).

First Holding:

Although the elements of collateral estoppel are satisfied, an equitable exception to that doctrine arises when there has been a significant change in the law since the initial ruling that warrants reexamination of the issue.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454

Second Holding:

In 2018, the Legislature, through SB 1437, amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. In 2021, through SB 775 the Legislature clarified that the amendments made by SB 1437 were also intended to eliminate any other theory of imputed-malice murder liability.

A defendant seeking relief under section 1172.6 must attest to the following: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder under which malice is imputed to a person based solely on that person’s participation in a crime. (2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder. (3) The petitioner could not presently be convicted of murder under current law.

Upon receipt of a facially sufficient petition, the trial court shall appoint counsel for petitioner if requested. The trial court then assesses whether the petitioner is prima facie eligible for relief. If the court determines that the petitioner has made a prima facie showing of eligibility for relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Third Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. The doctrine is intended to protect litigants from the burden of relitigating an identical issue with the same party or his privy while promoting judicial economy by preventing needless litigation.

Collateral estoppel has five elements.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. While satisfaction of these elements is necessary to invoke the equitable doctrine of collateral estoppel, it is not always sufficient. Even if the elements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 451-452, 454

Fourth Holding:

In denying the defendant’s earlier petition, the court stated that at no time did the defense or prosecution argue the theory of natural and probable consequences at trial. The only homicide theory the parties argued to the jury] was that the defendant was an aider and abettor of a planned assassination. Three years after that denial of the petition, Lee held that, despite the prosecution (in Lee) arguing a single theory to the jury, the instructions were not so limited and permitted the jury to find the defendant guilty on a theory not argued by the prosecution.

The Lee court did not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because it did not have the full record before it. The Lee court was therefore unwilling to conclude, based solely on the prosecution’s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice. The same reasoning applies in the instant case.

Authority:

People v. Lee (2023) 95 Cal.App.5th 1164, 1188

Fifth Holding:

Lee constitutes a significant development or clarification of the law. Because the trial court did not have the benefit of Lee when it issued its order, foreclosing a re-examination of the defendant’s arguments would be unfair.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454 [an exception to collateral estoppel is when there is a significant change in the law]

Appellate Principles, Juveniles, Plea bargains, Sentencing

Case 000684

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred when it set minor’s maximum confinement term at 33 years plus 25 years to life. We modify the maximum term of confinement to 25 years eight months plus 25 years to life.

First Holding:

Effective January 1, 2019, the Legislature passed SB 1391. The amendment eliminated the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court jurisdiction. One year later, in 2020, the Legislature passed juvenile justice realignment through SB 823. It overhauled juvenile wardship law by closing the Division of Juvenile Justice and transferring jurisdiction over youthful offenders to counties, with the stated purpose of ensuring minors are closer to their families and communities and receive age appropriate treatment.

Authority:

WIC 707(a)

WIC 736.5

O.G. v. Superior Court of Ventura County (2011) 11 Cal.5th 82, 89

In re M.B. (2024) 99 Cal.App.5th 435, 448

In re T.O. (2022) 84 Cal.App.5th 252, 262–263

In re Miguel C. (2021) 69 Cal.App.5th 899, 907

Second Holding:

Section 875, effective May 14, 2021, was added as part of the juvenile justice realignment. Under the new scheme, commencing July 1, 2021, the court may order that a minor who is 14 years of age or older be committed to Secure Youth Treatment Facility if the minor meets certain criteria.

Authority:

WIC 875(a)

In re J.P. (2023) 94 Cal.App.5th 74, 78

Third Holding:

Section 875(b)(1) states the baseline term must be based on the most serious recent offense for which the minor has been adjudicated and shall represent the time in custody necessary to meet the developmental and treatment needs of the minor and to prepare the minor for discharge to a period of probation supervision in the community. The baseline term must be consistent with specified guidelines and may deviate by no more than six months.

Authority:

WIC 875(b)(1)

Fourth Holding:

In deciding minor’s placement, the juvenile court has maximum flexibility to craft suitable orders aimed at rehabilitating the particular minor before it.

Dispositional orders must conform with the purposes of juvenile delinquency laws, which are “twofold: (1) to serve the best interests of the delinquent minor by providing care, treatment, and guidance to rehabilitate the minor and enable him or her to be a law abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.

It must consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. A disposition hearing record should reflect evidence that the proposed means of rehabilitation will result in probable benefit to the minor, and that the goals of the juvenile law could not have been met by a less restrictive placement.

Authority:

In re James R. (2007) 153 Cal.App.4th 413, 432

In re Carlos J. (2018) 22 Cal.App.5th 1, 7

In re Michael D. (1987) 188 Cal.App.3d 1392

In re Miguel C. (2021) 69 Cal.App.5th 899, 906

In re Charles G. (2004) 115 Cal.App.4th 608, 614

In re Robert H. (2002) 96 Cal.App.4th 1317, 1329

Fifth Holding:

Plea bargains are an accepted and integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining is a common feature in juvenile delinquency proceedings, just as it is in criminal proceedings in adult court. Similar principles apply in both settings.

A plea bargain is a contract between the accused and the prosecutor. Both of these parties are bound to the terms of the agreement; when the court approves the plea bargain, it also agrees to be bound by its terms. Both the accused and the prosecution are entitled to the benefit of the plea bargain. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.

Authority:

People v. Collins (1978) 21 Cal.3d 208, 214

People v. Segura (2008) 44 Cal.4th 921, 929

In re Kenneth H. (2000) 80 Cal.App.4th 143 [It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the People and the court]

In re Jermaine B. (1999) 69 Cal.App.4th 634, 639 [Plea bargaining is an accepted practice in our criminal justice system]

People v. Vargas (2001) 91 Cal.App.4th 506, 533

People v. Armendariz (1993) 16 Cal.App.4th 906, 911

People v. Panizzon (1996) 13 Cal.4th 68, 80 [When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties must abide by the terms of the agreement]

Sixth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Ames (1989) 213 Cal.App.3d 1214, 1217

Seventh Holding:

The court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case, or where, after further consideration, the court concludes that the bargain is not in the best interests of society. In deciding whether or not to withdraw approval of a plea bargain, the court may of course be expected to consult the probation report.

Authority:

eople v. Johnson (1974) 10 Cal.3d 868, 873

People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338

People v. Stringham (1988) 206 Cal.App.3d 184, 194

Eighth Holding:

A minor who does not challenge an assertedly erroneous ruling of the juvenile court in that court has forfeited his or her right to raise the claim on appeal. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the court—so any error may be corrected. While forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880; In re F.M. (2023) 14 Cal.5th 701, 710

In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground

In re M.R. (2005) 132 Cal.App.4th 269, 273–274

United States v. Olano (1993) 507 U.S. 725, 733–734

In re Uriah R. (1999) 70 Cal.App.4th 1152, 1155 [A broad or general waiver such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error]

Ninth Holding:

The juvenile court incorrectly calculated the determinative portion of the term for count 2, the primary offense, as 19 years. Attempted murder, the offense in count 2, has a sentencing triad of five, seven, or nine years, for which the juvenile court imposed the upper term of nine years plus a 10 year term for the attendant gang enhancement pursuant to Penal Code section 186.22(b)(1)(C).

However, section 875(c)(1)(B) specifically states the term chosen by the juvenile court cannot exceed the middle term for which an adult would be eligible, with some exceptions. Therefore, the court erred in imposing the upper term for count 2.

Authority:

WIC 875(c)(1)(B)

Tenth Holding:

The juvenile court also miscalculated the consecutive term for count 1. Count 1 was the subordinate term, and the court was limited to one-third of the middle term plus one-third of the enhancements.

Authority:

PEN 1170.1

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

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

People v. Arellano (2024) 16 Cal.5th 457, 467–468

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Appellate Principles, Fines and fees, Sentencing

Case 000678

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to life without the possibility of parole (LWOP). It was therefore improper to impose a parole revocation fine, which applies only to non-LWOP sentences.

First Holding:

The trial court erred in imposing and staying a parole revocation fine under section 1202.45(a), because the defendant’s sentence did not include a period of parole.

Authority:

People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation fine improperly imposed upon defendant sentenced to indeterminate term on one count and LWOP on another]

Second Holding:

The defendant also contends for the first time on appeal that the court violated his constitutional rights, by ordering him to pay a $10,000 restitution fine under Penal Code section 1202.4(b), a court operations surcharge under Government Code section 69926(a), and court facilities and court operations assessments under Government Code section 70373 and Penal Code 1465.8(a)(1)), without first determining his ability to pay. Because these contentions were not raised below, they are forfeited.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 856–859

People v. McCullough (2013) 56 Cal.4th 589, 597–598

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155

People v. Dueñas (2019) 30 Cal.App.5th 1157, overruled in part by People v. Kopp (2025) 19 Cal.5th 1, 23

Appellate Principles, Sentencing

Case 000674

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on count 3 under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The statute is intended to ensure that the defendant is punished commensurate with his culpability. It expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

However, the temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. If the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Furthermore, multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Vargas (2014) 59 Cal.4th 635, 642

People v. Capistrano (2014) 59 Cal.4th 830, 885

People v. Rodriguez (2009) 47 Cal.4th 501, 507, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56 at pp. 103–104
People v. Jackson (2016) 1 Cal.5th 269, 354

People v. Porter (1987) 194 Cal.App.3d 34, 38

People v. Beamon (1973) 8 Cal.3d 625, 639

People v. Tom (2018) 22 Cal.App.5th 250, 260

People v. Lopez (2011) 198 Cal.App.4th 698, 717

People v. Felix (2001) 92 Cal.App.4th 905, 915

Second Holding:

Under the facts of this case, the court should have stayed the sentence on count 3. We may modify the judgment on review to reflect the sentence is stayed. In the absence of any other errors requiring remand, we exercise our discretion to do so.

Authority:

PEN 1260

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

People v. Flores (2022) 77 Cal.App.5th 420, 453 [we need not remand a matter when it would be an idle act wasteful of judicial resources]

Appellate Principles, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000671

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the conviction for sexual penetration by force upon a child.

First Holding:

To evaluate the defendant’s challenge to the sufficiency of the evidence, we must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.  

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167–168

Second Holding:

In reviewing the sufficiency of the evidence to determine whether retrial is permissible for purposes of double jeopardy, we must consider all of the evidence presented at trial, including evidence that should not have been admitted. Because the record contains no evidence that could support a reasonable inference that the defendant sexually penetrated the victim with a foreign object, insufficient evidence supports a verdict of guilt on that count. Double jeopardy bars retrial on that count.

Authority:

People v. Story (2009) 45 Cal.4th 1282, 1296

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Third Holding:

When a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181(6)

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677