Category Archives: Appellate Principles

Abstracts and Minutes, Appellate Principles

Case: 000471

Posted on by Gary McCurdy

Error and/or relief

Although not technically incorrect, the minute order is ambiguous and could be construed representing as a court finding that the court did not make. The court ordered a slight rewording.

Holding:

[GARY NOTE: The court did not cite any authority for its order rewording the minute order, but if one considers that the original order could be construed to mean something it did not, then this act is akin to ordering correction of a minute order. Though none was cited, the following cases do support the court’s authority to order corrections in abstracts of judgment and minute orders, often in the context of where the minute order or abstract does not accurately reflect the oral pronouncement.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time, and appellate courts with jurisdiction have the power to order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court]

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment]

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

People v. Buycks (2018) 5 Cal.5th 857

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Appellate Principles, Discretion, Sixth Amendment, Standard of review

Case 000462

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially violated the Confrontation Clause (U.S. const., amend. VI) by overly restricting defendant’s cross-examination of two sheriff’s deputies, whose testimony was the only prosecution evidence presented on counts 2 and 4. And although our reversal on counts 2 and 4 likewise moots defendant’s Pitchess request, we exercise our discretion to address the issue and find that the trial court should have ordered the production of two civilian complaints.

Given this disposition, we need not address defendant’s claim that the abstract of judgment is incorrect, since the trial court must enter a new judgment on remand. Defendant’s sentence is therefore vacated. On remand, if the People do not timely retry defendant on counts 2 and 4, the trial court shall resentence him on counts 1, 3, and 5 accordingly. If the People timely retry defendant on counts 2 and 4, the trial court is directed to disclose the Pitchess records consistent with this opinion and afford defendant a reasonable opportunity to investigate the disclosed material before retrial.

First Holding:

Defendants have a Sixth Amendment right to cross-examine witnesses. But they have a right only to reasonable cross-examination. Trial courts therefore have wide discretion in determining the appropriate scope of cross-examination.

Authority:

People v. Royal (2019) 43 Cal.App.5th 121, 149

Olden v. Kentucky (1988) 488 U.S. 227, 231

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Second Holding:

Although trial courts may reasonably limit a defendant’s cross-examination of a witness’s bias, the Sixth Amendment’s Confrontation Clause restricts the court’s discretion. A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.

The trial court’s restrictions on a defendant’s cross-examination of a witness for bias does not violate the Sixth Amendment unless the defendant shows that a reasonable jury might have received a significantly different impression of the witness had the defendant been permitted to pursue his proposed line of cross-examination. However, excluding evidence of marginal impeachment value generally does not violate the Confrontation Clause.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Quartermain (1997) 16 Cal.4th 600, 623

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Third Holding:

We review the trial court’s order restricting defendant’s cross-examination of the deputies for an abuse of discretion. We likewise review the trial court’s denial of defendant’s motion for a new trial for an abuse of discretion.

Authority:

People v. Peoples (2016) 62 Cal.4th 718, 765

People v. Hoyt (2020) 8 Cal.5th 892, 957

Fourth Holding:

The tactical decision (which was defendant’s to make) has no bearing on whether the trial court properly limited defendant’s cross-examination of the deputies. The issue is whether defendant had a reasonable opportunity to cross-examine the deputies’ potential bias, not whether that cross-examination might benefit the prosecution.

Authority:

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679

Fifth Holding:

That defendant could have asked other witnesses about the 2015 incident to attack the deputies’ credibility is beside the point. Defendant had a Sixth Amendment right to reasonably probe the deputies’ credibility by cross-examining the deputies. The issue here is, again, whether the trial court’s limitation on defendant’s cross-examination of the deputies violated the Confrontation Clause, not whether defendant had other available means to explore the deputies’ bias beyond cross-examining them.

Authority:

People v. Smith (2007) 40 Cal.4th 483, 513 [Confrontation Clause allows appropriate cross-examination designed to show a prototypical form of bias on the part of the witness]

People v. Quartermain (1997) 16 Cal.4th 600, 623 [The right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility]

Sixth Holding:

The testimony of the deputies was effectively the only evidence presented on the assault on an officer and felony evading charges, since they were the only witnesses to those offenses. Evidence about the deputies’ knowledge of the earlier incident was thus not of marginal impeachment value, nor was it not relevant, as the trial court incorrectly concluded. This was the only evidence that showed the deputies might have been biased against defendant, despite their denials, and could have influenced the jury’s view of their testimony.

Given that defendant’s guilt on the two counts hinged on the deputies’ testimony, their credibility was a critical issue on those counts. The trial court’s ruling allowed defendant to ask the deputies only whether they knew defendant and whether they were biased against him. When both deputies said they were not biased against him, defendant could not then probe any potential bias stemming from the 2015 incident, even though the jury might have reasonably found that the incident gave the deputies a motive for favoring the prosecution. In our view, the trial court’s ruling made defendant’s cross-examination of the deputies an exercise in futility.

Authority:

United States v. Abel (1984) 469 U.S. 45, 52 [Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony]

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1280-1282[Bias has traditionally been viewed as especially powerful.]

Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 52 [Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses.]

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [“blanket” ruling prohibiting all inquiry into a witness’s potential bias violated Confrontation Clause]

Seventh Holding:

The second step of the analysis asks whether a reasonable jury might have received a significantly different impression of the challenged witness’s credibility if the proposed line of cross-examination had been permitted. This requires us to focus on the witness’s cross-examination rather than the outcome of the trial as a whole, examining whether the defense had other means of impeachment of the witness during cross-examination. We review the issue de novo.

Authority:

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Eighth Holding:

In Davis, the United States Supreme Court reasoned: “While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why the witness might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness.”

So too here. Because we conclude the trial court’s ruling violated defendant’s Confrontation Clause right to cross-examine the deputies, we must reverse the convictions on counts 2 and 4 unless the People show the error was harmless beyond a reasonable doubt. The People have not done so.

Authority:

Davis v. Alaska (1974) 415 U.S. 308, 317-318

Delaware v. Van Arsdall (1986) 475 U.S. 673, 684

Ninth Holding:

A review of the Pitchess materials reveals that complaints had previously been filed against the deputies. Those materials should have been released to the defendant. The fact that the complaints were found by the internal police investigation to be unfounded is immaterial because unsustained complaints are discoverable. This is because “the burden for preparing a criminal defendant’s case rests with his counsel, not with the police department. That burden cannot be properly discharged unless counsel has direct access to potential witnesses, for it is counsel who must decide if they can aid his client, not the police department’s internal affairs division, however sincere and well motivated the latter may be.

Authority:

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Gaines (2009) 46 Cal.4th 172, 182

People v. Zamora (1980) 28 Cal.3d 88, 93 fn. 1, 101

Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

Error and/or relief

Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.

The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.

First Holding:

A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.

Authority:

PEN 1203.1b(a)

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322

Second Holding:

Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Third Holding:

A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

Fourth Holding:

A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

Fifth Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Sixth Holding:

A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to GPS monitoring.]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.”]

People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]

People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program.]

Seventh Holding:

A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.

Authority:

PEN 1203.2(b)(1)

PEN 1203.3

In re D.N. (2022) 14 Cal.5th 202, 211

People v. Olguin (2008) 45 Cal.4th 375, 382

People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000453

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates that the defendant was convicted under the Three Strikes law, and must be corrected.

Holding:

The clerk of the superior court is directed to prepare an amended abstract of judgment by unchecking the box that the defendant was sentenced under the Three Strikes law.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 000452

Posted on by Gary McCurdy

Error and/or relief

The court imposed the fines and fees without conducting an ability to pay hearing over trial counsel’s objection. While this appeal was pending, the Supreme Court settled the question of imposition of fines and fees with regard to the ability to pay. We strike the $370 in fines and fees.

First Holding:

A defendant may challenge the imposition of a punitive fine under the excessive fines provisions of the United States and California Constitutions. Equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing court operations and facilities assessments fees as ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 29-30

Second Holding:

On this record, it would not serve the interests of justice or judicial economy to require remand. Appellant has been incarcerated for most of his adult life. Given his current sentence (55 years to life), he will presumably be incarcerated for the rest of his life. Additionally, the probation report does not indicate he has any assets or property. The court has the authority to strike the fines and fees rather than remand the matter for a hearing on the defendant’s ability to pay.

Authority:

PC 1260 [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.]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Appellate Principles, Equal protection, Probation Parole PRCS, Sentencing

Case: 000414

Posted on by Gary McCurdy

Error and/or relief

The court erroneously applied the doctrine of the law of the case to deny the defendant’s section 1170(d) petition in which he sought resentencing under its provisions because 50 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP).

First Holding:

In his original appeal from the 2010 conviction the Court of Appeal concluded that 50 years to life was not the functional equivalent of an LWOP sentence. The trial court denied his petition under section 1170(d) in 2023 on the basis that, under the law of the case doctrine, an appellate court had previously ruled that his sentence was not the functional equivalent of LWOP. However, years after the original appeal was decided, the Supreme Court determined that 50 years to life was the functional equivalent of LWOP.

Authority:

People v. Contreras (2018) 4 Cal.5th 349

Second Holding:

The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and this although in its subsequent consideration the court may be clearly of the opinion that the former decision is erroneous in that particular.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6

People v. Boyer (2006) 38 Cal.4th 412, 442 [The law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on rehearing of an issue is substantially the same as that upon which the appellate ruling was based.]

People v. Barragan (2004) 32 Cal.4th 236, 253

People v. Vizcarra (2015) 236 Cal.App.4th 422, 430 [The doctrines of collateral estoppel and law of the case bar a defendant from raising an issue that was raised and rejected in a prior appeal.]

Third Holding:

The law of the case doctrine generally precludes a party from obtaining appellate review of the same issue more than once in a single action. It is well settled, however, that the doctrine may be disregarded where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.

Authority:

Truck Ins. Exchange v. Kaiser Cement and Gypsum Corp. (2024) 16 Cal.5th 67, 87, fn. 6

People v. Strong (2022) 13 Cal.5th 698, 716-717 [Issue preclusion (collateral estoppel) 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.]

Fourth Holding:

Here, although defendant raised and this court previously rejected the issue of whether, as a juvenile offender, defendant’s 50-year-to-life sentence was the functional equivalent of LWOP, the law on the issue has changed significantly and is currently split.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 268 [eligibility for parole pursuant to sec. 3051 mooted any assertion that defendant’s 50-year-to-life sentence was the functional equivalent of LWOP]

People v. Contreras (2018) 4 Cal.5th 349, 359 [50 years to life for juvenile offender ineligible for sec. 3051 relief is the functional equivalent of LWOP]People v. Heard (2022) 83 Cal.App.5th 608, 624 [103 years to life is the functional equivalent of LWOP]

People v. Sorto (2024) 104 Cal.App.5th 435, 441 [140 years to life is the functional equivalent of LWOP]

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061 [107 years to life is the functional equivalent of LWOP]

People v. Munoz (2025) 110 Cal.App.5th 499, 513, dis. opn. of Feuer, J. [ majority holds 50 years to life is not the functional equivalent of LWOP, but the dissent would hold that it is], review granted June 25, 2025, S290828

People v. Baldwin (2025) 113 Cal.App.5th 978, 999 [44 years to life not functional equivalent of LWOP]

People v. Thompson (2025) 112 Cal.App.5th 1058, 1081, review granted Sept. 24, 2025, S292540 [50 years to life not functional equivalent of LWOP]

People v. Perez (2013) 214 Cal.App.4th 49, 58 [parole eligibility at 47 years of age was by no stretch of the imagination functional or de facto LWOP]

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260, review granted Sept. 17, 2025, S292070 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Isayev (2025) 113 Cal.App.5th 1117, review granted Nov. 12, 2025, S292860 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Lara (2025) 115 Cal.App.5th 484, review granted Dec. 30, 2025, S294095 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

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

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

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

Case: 000389

Posted on by Gary McCurdy

Error and/or relief

Consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. Due to insufficient evidence of defendant’s guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial.

First Holding:

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We presume the existence of every fact that the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a jury’s finding, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Medina (2009) 46 Cal.4th 913, 919

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. The remaining elements of premeditation and deliberation are generally established through the following types of evidence: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as planning activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, and (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

The evidence of premeditation and deliberation is generally sufficient when there is evidence of all three types or at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). These factors discussed in Anderson, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.

Authority:

PEN 188(a)(1)

People v. Concha (2009) 47 Cal.4th 653, 662

People v. Anderson (1968) 70 Cal.2d 15, 26–27

People v. Perez (1992) 2 Cal.4th 1117, 1125

Third Holding:

Where, as here, offenses in separate cases meet a statutory basis for consolidation, a defendant bears the burden to make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the cases. In our review, we examine the record before the trial court when it denied defendant’s severance motion and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.

Authority:

PEN 954

People v. Mendoza (2000) 24 Cal.4th 130, 160-161

Fourth Holding:

We first address the charges’ cross-admissibility, because a finding of cross-admissibility generally negates the possibility of prejudice. Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances

Authority:

People v. Merriman (2014) 60 Cal.4th 1, 38

People v. Jones (2013) 57 Cal.4th 899, 926

Fifth Holding:

There exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes. To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share a direct logical nexus.

Authority:

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222

People v. Maury (2003) 30 Cal.4th 342, 392

People v. Yeoman (2003) 31 Cal.4th 93, 121

People v. Demetrulias (2006) 39 Cal.4th 1, 15

People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 [the motive for the charged crime arises simply from the commission of the prior offense]

Sixth Holding:

Disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission.

Authority:

People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

People v. Earle (2009) 172 Cal.App.4th 372, 390–391

People v. King (2010) 183 Cal.App.4th 1281, 1301–1303

People v. Thompson (1988) 45 Cal.3d 86, 109 [to be admitted, evidence of other crimes must not contravene other policies limiting admission, such as those contained in Evidence Code section 352]

Appellate Principles, Plea bargains, Sentencing, Sixth Amendment

Case: 000377

Posted on by Gary McCurdy

Error and/or relief

In exchange for the defendant’s plea, the People dismissed nine other counts and the parties stipulated to a sentence between the range of five and 13 years in prison. On appeal, the defendant contends the trial court prejudicially erred by imposing the upper term sentence of 13 years based on aggravating factors that he did not stipulate to and were not found true beyond a reasonable doubt at a trial. We agree and reverse the judgment and remand for resentencing. The defendant may stipulate to the factors in aggravation. If he chooses not to stipulate, he may demand a trial by jury or court, at which the prosecution must prove beyond a reasonable doubt the aggravating factors. Unless the defendant stipulates to the factors in aggravation, if the prosecution does not prove them at trial, the court must impose a sentence no greater than the middle term.

First Holding:

Although the failure to obtain a certificate of probable cause generally bars an appeal following a guilty plea, a certificate of probable cause is not required to raise on appeal a claim, such as the one the defendant presents here, regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 790–791

Second Holding:

A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. Thus, a waiver of appeal rights does not apply to possible future error, including sentencing error, that is outside the defendant’s contemplation and knowledge at the time the waiver is made.

Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. There is no dispute that when the defendant entered his plea he gave up his right to appeal any sentence stipulated in the plea agreement. Such a waiver may preclude an appellate challenge to the trial court’s imposition of a specific prison term that was stipulated in the plea agreement. What we must determine here, however, is whether the scope of such a waiver also includes a challenge to a trial court’s choice of a sentencing term from a stipulated range.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 940–941

People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662

People v. Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86

Third Holding:

Buttram is instructive on the issue of waiver of the right to appeal. In considering this issue, the court distinguished Buttram’s case from cases involving plea agreements stipulating to a specified sentence, and found persuasive the argument that a negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings, in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain.

The court further reasoned that, when the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. Finally, in determining Buttram’s appeal challenging the imposition of the maximum sentence was not precluded by his guilty plea, the court reasoned that an agreement for something other than a specified sentencing term, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 782, 785, 790–791

Fourth Holding:

Here, the defendant stipulated to a sentencing range that set both the minimum and the maximum sentence but did not specify the exact sentence to be imposed. Nothing in the plea agreement dictates the terms by which the trial court would determine what sentence to impose from within the stipulated range. And nothing in the plea agreement stipulates that the trial court, in making its sentencing decision, would not be bound by section 1170(b), or the Sixth Amendment to the United States Constitution, which limit the ability of a trial court to impose an upper term sentence absent sufficient proof of aggravating factors.

Authority:

PEN 1170(b)(1) and (2)

Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, 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, not merely by a preponderance of the evidence]

Fifth Holding:

Section 1170(b) generally provides that a sentence may not exceed the middle term, except when it finds aggravating circumstances justify a higher sentence. Both section 1170(b) and the Sixth Amendment require that these aggravating factors be stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. A court does not have discretion to impose an upper term sentence unless all the aggravating factors on which it relies have been sufficiently proven.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 759 [An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial]

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

Sixth Holding:

The Courts of Appeal have split on the issue of whether a defendant, who stipulated to an upper term sentence pursuant to a plea agreement, is entitled to remand for consideration of the aggravating factors under section 1170, subdivision (b)(2), and the Supreme Court has granted review on this issue.

Gary LONG note: In this Sixth Holding, the appellate court is alluding to People v. Stamps (2020) 9 Cal.5th 685, although it does not actually mention Stamps. Stamps holds that if a defendant insists on taking advantage of ameliorative provisions in a case where the plea bargain specified the sentence, and the trial court changes the sentence based on those ameliorative provisions, either the prosecution or the court may set aside the original plea bargain entirely if not satisfied with the new sentence. But given a new statute, I wonder whether Stamps is still good law. (That is a “wonder if,” not a “statement of law.”) Effective 1/1/2025, section 1171 was enacted to give courts guidance on how to handle various amerliorative statutes.

Take a look at the excerpt from 1171(c)(3):

Penal Code section 1171(a): For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.

…

(c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.

…

(e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.

…

(f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.

On 5/18/2026, Mitchell (shown in this list of authorities relied on in the case) was decided by the Supreme Court. People v. Mitchell (2026) 19 Cal.5th 729. The Supreme Court did not rely on section 1171, but instead remanded for the procedure it outlined in Stamps–if the defendant gets what he wants, and the DA or the court is not happy with the modification, then the plea must be set aside. In its footnote 9, however, it stated,

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 … sets forth procedures governing a ‘postconviction proceeding,’ which the statute defines as ‘a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.’ … At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

I suspect the Supreme Court wanted to see how the lower courts are treating section 1171 before it chooses to weigh in. While I do not know if that IS what the Supreme Court had in mind, I think there is value in that approach from the perspective of establishing the law. When major issues are briefed by multiple attorneys in several different cases, and Courts of Appeal arrive at their decisions through their own means of arriving at a legal conclusion, it gives the broadest perspective for the Supreme Court to decide what makes the most sense. I repeat, that’s just my opinion.

I also want to point out that In People v. Montgomery (no longer a published opinion, but it was originally published at 100 Cal.App.5th 768 before the Supreme Court granted review and ultimately ordered the opinion to be depublished), the Supreme Court had before it a question on whether Stamps applied. The Court of Appeal had concluded that relief under section 1172.75 would not permit the DA or trial court from vacating the plea agreement (i.e., a NON-Stamps approach). In December 2024, just before section 1171 was to go in effect on January 1, 2025, the Supreme Court transferred the case back to the Court of Appeal in light of section 1171. Subsequently, the Court of Appeal issued an unpublished opinion in which it essentially affirmed its previous result–modification under section 1172.75 would not result in the plea being set aside in light of section 1171.

And if I may quote from Paul Harvey, “And now you know … the rest of the story.”

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same]

People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same]

People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023, S278503 [same]