Category Archives: Duty of counsel

Duty of counsel, Sixth Amendment

Case 001082

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not hold a hearing on the defendant’s motion to have his attorney replaced.

First Holding:

Through counsel, the defendant filed a timely notice of appeal in his Case A. About a month later, he filed in pro. per. a notice of appeal in his Case B. The sentencing hearing had encompassed both cases. The prosecution asserts that the appellate court lacks jurisdiction over the appeal in Case B because its notice of appeal was filed after the 60-day deadline.

The notice of appeal must be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. The liberal construction rule exists to implement the strong public policy favoring the hearing of appeals on the merits.

To be sure, a notice of appeal must identify the particular judgment or order being appealed. However, under the liberal construction rule, courts have held that once a notice of appeal is timely filed from one appealable order, a court can construe it as encompassing a separate, related appealable order as to which it is timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the respondent.

As in Jordan, we deem it appropriate, in the interests of justice, to construe the notice of appeal filed in Case A as sufficient to constitute a notice of appeal in both that case and Case B.

Authority:

Cal. Rules of Court, rule 8.304(a)(4)

D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361

K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 878, 882

In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9

Second Holding:

The defendant submitted a motion to replace counsel under Marsden, asserting various claims pertaining to the adequacy of his representation by counsel. The court marked the motion “Received But Not Filed.” The court never held a hearing on the motion.

The law governing a Marsden motion is well-settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.

Authority:

People v. Marsden (1970) 2 Cal.3d 118

People v. Jackson (2009) 45 Cal.4th 662, 682

Third Holding:

A proper and formal Marsden motion is not required—the defendant need only clearly indicate to the trial court in some manner that he or she is requesting the discharge and replacement of the appointed counsel.

Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. Failure to conduct such a hearing is legal error that compels reversal of the defendant’s conviction unless the record shows beyond a reasonable doubt that the error was harmless.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1178-1179

People v. Marsden (1970) 2 Cal.3d 118, 126

Fourth Holding:

When a trial court’s failure to hold a hearing is inadvertent and a defendant fails to press for a hearing, he can abandon his Marsden request. In this case, we conclude that the facts are closer to Armijo (which concluded the defendant did not abandon the motion by failing to press for a ruling) than Jones (which concluded the opposite).

There is nothing in the record suggesting the trial court’s failure to hold a hearing on the Marsden motion was anything other than an inadvertent omission. As in Armijo, the defendant may reasonably have concluded that his motion had been considered by the court and denied.

We cannot speculate on the basis of a silent record that the trial court, after listening to the defendant’s reasons, would decide the appointment of new counsel was unnecessary.

Authority:

People v. Jones (2012) 210 Cal.App.4th 355, 361

People v. Vera (2004) 122 Cal.App.4th 970, 982

Fifth Holding:

We therefore will conditionally to reverse the orders of probation in both superior court cases and remand to the trial court with the following directions:

(1) the court shall hold a hearing on the defendant’s Marsden motion concerning his representation by his attorney;

(2) if the court finds that the defendant has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and

(3) if newly appointed counsel makes no motions, any motions made are denied, or defendant’s Marsden motion is denied, the court shall reinstate the orders of probation.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 92–93

People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 and fn. 6

Due process, Duty of counsel, Duty of the court, Effective assistance of counsel, Jurisdiction, Sentencing, Standard of review

Case 001026

Posted on by Gary McCurdy

Error and/or relief

Twenty-one years after his conviction of murder committed when he was 20, the defendant filed a motion for a hearing under Franklin. The court (Judge A) appointed counsel and set a hearing date to determine whether the defendant was entitled to a full evidence preservation hearing. The defendant’s attorney ultimately filed a motion to be relieved as counsel, requesting that the matter be taken off the calendar, stating that the defendant was not entitled to a Franklin hearing under Hardin. There was no indication that counsel had discussed this with the defendant. The defendant was not present. The court (Judge B) relieved counsel and took the matter off calendar.

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond.

To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden (1970) 2 Cal.3d 118

The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

First Holding:

Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the controlling offense, the offender is eligible for parole. The hearing must provide for a meaningful opportunity to obtain release, and includes an assessment of the offender’s growth and maturity that takes into consideration the diminished culpability of youth as compared to that of adults and the hallmark features of youth.

Given these factors, the California Supreme Court held in Franklin that when a juvenile offender receives an indeterminate life sentence, the offender must be given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.

Authority:

PEN 3051

People v. Williams (2024) 17 Cal.5th 99, 113

People v. Medrano (2019) 40 Cal.App.5th 961, 967

People v. Franklin (2016) 63 Cal.4th 261, 269

Second Holding:

In Cook, the California Supreme Court extended the availability of a Franklin hearing to a juvenile offender whose conviction and sentence have become final. Specifically, it held that an offender entitled to a youth offender parole hearing may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final. To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01.

Authority:

PEN 1203.01

People v. Ngo (2023) 89 Cal.App.5th 116, 127

In re Cook (2019) 7 Cal.5th 439, 451

People v. Howard (2021) 74 Cal.App.5th 141, 150

Third Holding:

The proper avenue to request a Franklin proceeding is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and Cook. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce.

There are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Fourth Holding:

A legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a Franklin proceeding is warranted. The trial court may also exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.

The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is appropriate, or if other types of evidentiary submissions will suffice. After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely to produce fruitful evidence.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 152

In re Cook (2019) 7 Cal.5th 439, 149

Fifth Holding:

Courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds.

While the California Supreme Court has concluded that section 3051’s exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.

Authority:

People v. Sands (2021) 70 Cal.App.5th 193, 201-202

People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489

People v. Hardin (2024) 15 Cal.5th 834, 864

Sixth Holding:

Generally, a trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion. Here, we have determined the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1119

People v. Cole (2004) 33 Cal.4th 1158, 1190

People v. Wright (2021) 12 Cal.5th 419, 440

Seventh Holding:

Generally, both the United States Constitution and California Constitution guarantee a basic right of due process, and the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

The Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.

Authority:

U.S. Const., 14th Amend.

Cal. Const., art. I, secs. 7, 15

People v. Allen (2008) 44 Cal.4th 843, 869

People v. Ramirez (1979) 25 Cal.3d 260, 265

Eighth Holding:

Generally, having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will. In light of this principle, it is established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.

These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. The legislative purpose of these provisions is to provide certain safeguards to protect the accused.

Authority:

CCP 284

CCP 285

People v. Prince (1968) 268 Cal.App.2d 398, 404, 406

Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558-559 [The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases.]

In re Martinez (1959) 52 Cal.2d 808, 813

People v. Bouchard (1957) 49 Cal.2d 438, 440

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636

Ninth Holding:

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the day after it was filed.

There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion.

Authority:

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636 [Adequacy of notice is an element of due process of law. There is no due process of law in the complete absence of any notice.]

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.]

People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5

Tenth Holding:

It is well established that a trial judge ordinarily may reconsider his or her own prejudgment rulings. There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.

This rule prevents a trial court judge from acting as a one-judge appellate court over another judge. This is true even if the first judge committed legal error in ruling on the matter. The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel.

Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing.

The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge.

Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

Authority:

Calif. Const. art VI, sec. 4

People v. Waldon (2023) 14 Cal.5th 288, 306

In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail]

People v. Goodwillie (2007) 147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge]

Eleventh Holding:

In our view, the error in this case is akin to structural error requiring reversal. Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. However, under the California constitutional harmless-error provision some errors are not susceptible to the ordinary or generally applicable harmless-error analysis.

The kinds of errors that, regardless of the evidence, may result in a miscarriage of justice because they operate to deny a criminal defendant the constitutionally required orderly legal procedure all involve fundamental structural defects in the judicial proceedings.

Most errors are amenable to harmless error review because they can be quantitatively assessed in the context of other evidence presented.

Structural defects, on the other hand, defy analysis by harmless-error standards because they are not simply an error in the trial process, but rather an error affecting the framework within which the trial proceeds. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 553

People v. Lewis (2025) 111 Cal.App.5th 1078, 1111

Duty of counsel, Duty of the court, Immigration, Plea bargains, Sixth Amendment, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000994

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to vacate his guilty plea conviction under section 1473.7, because the defendant demonstrated entitlement to relief.

First Holding:

In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea.

In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the basis that the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. Relief is not contingent upon establishing ineffective assistance of counsel.

Authority:

PEN 1473.7(a)

People v. Vivar (2021) 11 Cal.5th 510, 522-523

People v. Carrillo (2024) 101 Cal.App.5th 1, 12-13

Second Holding:

A defendant must satisfy three statutory requirements to be eligible to seek relief from a legally invalid conviction or sentence under section 1473.7(a)(1). The movant must show he is no longer in criminal custody, and the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The motion must also be timely.

Authority:

PEN 1473.7

People v. Carrillo (2024) 101 Cal.App.5th 1, 13

Third Holding:

To prevail under section 1473.7, a defendant must demonstrate that his conviction is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.

Next, the defendant must show that his misunderstanding constituted prejudicial error.

Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Vivar (2021) 11 Cal.5th 510, 529

Fourth Holding:

We evaluate prejudicial error under the totality of the circumstances.

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.

The defendant’s probability of obtaining a more favorable outcome if he had rejected the plea and the difference between the bargained-for term and the likely term if he were convicted at trial are also relevant.

These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320-321

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Martinez (2013) 57 Cal.4th 555, 564

Lee v. United States (2017) 582 U.S. 357, 358

Fifth Holding:

On appeal, we apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences.

We exercise independent judgment to determine whether the facts satisfy the rule of law, and defer to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed.

However, when, as in this case, the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

People v. Vivar (2021) 11 Cal.5th 510, 527-528

Sixth Holding:

The focus of this inquiry is the defendant’s own error. Thus, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

The defendant is the only one with direct access to his state of mind, but a defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel.

Authority:

People v. Carrillo (2024) 101 Cal.App.5th 1, 16-17

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Espinoza (2023) 14 Cal.5th 311, 325

People v. Padron (2025) 109 Cal.App.5th 950, 962

Seventh Holding:

The standard section 1016.5 advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction may have adverse immigration consequences does not bar a defendant from seeking relief from his plea on grounds of mistake or ignorance based on immigration consequences. Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 889, 895

People v. Lopez (2021) 66 Cal.App.5th 561, 577-578

People v. Espinoza (2023) 14 Cal.5th 311, 320

People v. Padron (2025) 109 Cal.App.5th 950, 962

Eighth Holding:

Prior to Padilla, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. Rather, most courts had determined that no such duty existed.

As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.

(Gary note:  I think we all know what the court means by “Prior to Padilla, there was no Sixth Amendment obligation ….”  But I think a more accurate statement would be something like, “Padilla was the first pronouncement by the United States Supreme Court recognizing that the Sixth Amendment places an obligation on the part of defense counsel to ….”  The Sixth Amendment was certainly not amended to add any provision generating a new obligation.  The Sixth Amendment has been around for centuries, unchanged.  It was only its import that hadn’t been seen in the past, at least by the High Court.

(The court’s phrasing as I’ve set out in the Ninth Holding tracks what I’m saying.

(I mention this because I think sometimes it is important to argue that something is NOT new law, and that it has BEEN the law all along, notwithstanding that it had not previously been understood to be the law.  Why is that important?  It can make the difference in whether a court recognizes that your client’s rights were violated, even though it was only through a later appellate analysis that the nature of the violation was discovered.  We don’t want the court to assume that, because no court had seen it before, your client is not entitled to its benefit.

(There have been decisions, of course, that decline to revisit cases where, had the law been understood at the time, there would have been a different result.  But that is generally related to the principle of finality of judgment and the jurisdiction of the court to act on the case.  While not directly the same, think of the Estrada presumption of retroactivity of ameliorative changes in the law to those whose judgments are not final, in the absence of clear intent that the change was to be applied prospectively only.  

(Just sayin’.

(Of course, with respect to Padilla, the practical effect is that yes, the Sixth Amendment imposes the obligation on the attorney to provide the advice, but the failure to do so prior to Padilla is not tantamount to ineffective assistance of counsel as that principle has been described in the past.  As the court in this case said, relying on In re Grinder, “As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.”

(Was there a change in the law?  Or simply a change in the understanding of the Sixth Amendment?  Of course, the opposition might argue that court pronouncements dictate what is the law, and therefore they represent the law, and thererfore it wasn’t until Padilla that the Sixth Amendment created the obligation.  An interesting debate, or not, but for another time.)  

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

Chaidez v. United States (2013) 568 U.S. 342, 353

People v. Carrillo (2024) 101 Cal.App.5th 1, 17

In re Grinder (2025) 114 Cal.App.5th 845, 872

Ninth Holding:

Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. As such, defendant’s attestation that his attorney did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time.

(Gary note: The appellate court examined and analyzed extensively many facts in the record from which it concluded that, based primarily on the principles I have extracted in this summary, the defendant was entitled to relief because his plea was not entered knowingly and intelligently within the contemplation of section 1473.7. I have omitted those details, some of which included citations to other cases apparently relevant to those details. Since this was an unpublished decision and cannot be cited for comparison, and since this is supposed to be a summary and not a copy of the entire decision, I have to stop about here.)

Authority:

PEN 1016.2

People v. Carrillo (2024) 101 Cal.App.5th 1, 18

People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312

 

Discretion, Duty of counsel, Duty of the court, Juveniles

Case 000866

Posted on by Gary McCurdy

Error and/or relief

The minor received insufficient notice of his eligibility for a deferred entry of judgment (DEJ), and the trial court failed to conduct a DEJ suitability hearing. We conditionally reverse the juvenile court’s jurisdictional and dispositional orders and remand the matter to the juvenile court for further proceedings.

First Holding:

Welfare and Institutions Code section 790(a) provides that whenever a case is before the juvenile court for a determination of whether a minor is a person described in section 602 because of the commission of a felony offense, the minor may be eligible for DEJ when the following conditions are met: (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. (3) The minor has not previously been committed to the custody of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (4) The minor’s record does not indicate that probation has ever been revoked without being completed. (5) The minor is at least 14 years of age at the time of the hearing. (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. (7) The offense charged is not [one of several listed sexual offenses].

Authority:

WIC 790(a)

Second Holding:

Under section 790(b), the prosecuting attorney must review the file to determine whether or not paragraphs (1) to (7), inclusive, of subdivision (a) apply.

If the minor is found eligible for deferred entry of judgment, the prosecuting attorney must file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and must make this information available to the minor and their attorney.

Authority:

WIC 790(b)

In re C.W. (2012) 208 Cal.App.4th 654, 659 (C.W.)

Third Holding:

The Rules of Court require the court to notify the minor’s custodial parent, guardian, or foster parent at least 24 hours before the appearance hearing.

Authority:

Cal. Rules of Court, rule 5.800(c)

In re Trenton D. (2015) 242 Cal.App.4th 1319, 1324 [finding no indication that a proper notice was properly served and noting rule 5.800(c)’s service requirements]

Fourth Holding:

While a juvenile court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make the final determination regarding education, treatment, and rehabilitation.

The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.

Authority:

In re Luis B. (2006) 142 Cal.App.4th 1117, 1123

In re D.L. (2012) 206 Cal.App.4th 1240, 1243–1244

Amelioration, Duty of counsel, Effective assistance of counsel, Elements of crime, Retroactivity

Case 000859

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted on the basis of appellate ineffective assistance of counsel in a prior appeal. The matter is remanded to the trial court with directions to vacate petitioner’s gang convictions and enhancements, to determine whether the prosecution will elect retrial, to conduct a retrial if so elected, and to fully resentence petitioner.

First Holding:

The defendant was convicted of several crimes, including substantive crimes and enhancements related to criminal gang activity. While the matter was pending on appeal in an earlier appeal, AB 333 amended section 186.22.

Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

AB 333 requires that predicate offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.

In addition, the currently charged offense cannot be used as a predicate offense under the amendments. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

To establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant.

Authority:

People v. Lepere (2023) 91 Cal.App.5th 727, 738

Third Holding:

The prosecution’s expert witness testified that he could not conclude that certain conduct was for the benefit of the gang. The evidence adduced at trial was therefore insufficient to qualify the crime as a predicate offense under AB 333.

Because a criminal street gang was not established under the subsequent requirements of AB 333, the gang convictions and enhancements would have been vacated if properly challenged on direct appeal.

Appellate counsel’s failure to raise the issue was therefore prejudicial to petitioner. Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.

Authority:

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381