Category Archives: Duty of the court

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

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

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

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

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75(d)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Duty of the court, Jury trial

Case 000925

Posted on by Gary McCurdy

Error and/or relief

We agree that the trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecution’s use of peremptory challenges.

First Holding:

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Discrimination in violation of section 231.7 need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s perceived or actual race and] gender, as well as five other protected characteristics.

Once an objection to a peremptory challenge is made, the party challenging the prospective juror must state the reasons the peremptory challenge has been exercised.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Second Holding:

We review de novo a trial court’s determination that a peremptory challenge was valid, and the trial court’s express factual findings for substantial evidence. We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. If the ruling on an objection was erroneous, the statute precludes a finding of harmless error. Instead, the sole remedy is reversal.

Authority:

CCP 231.7(j) [error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial]

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Third Holding:

(Gary note: The opinion then discussed the specific reasons the juror was excused by the prosecution and the failure of the court to follow the required procedure where the reason given is one that is expressly presumed in section 231.7 to be an invalid reason. I have omitted that discussion, since it cannot provide any value as an unpublished opinion.)

Neither the showing required of the prosecution under section 231.7(e) nor the determination by the trial court required under subdivision (f) was made in this case. To the extent that the record is silent, we may not speculate about or consider other possible reasons for the challenge by the prosecution, as we are permitted to consider only the reasons given.

Moreover, we may not impute to the trial court any findings that the trial court did not expressly state on the record. Simply put, the statute does not permit a reviewing court to find compliance when no compliance is apparent in the record.

In any event, even without the statutory prohibition, there would be no reason to impute findings to the trial court in this case because the trial court expressly found, on the record, that there were no presumptively invalid reasons for exclusion of the prospective juror.

Authority:

CCP 231.7(j)

People v. Garcia (2025) 114 Cal.App.5th 1154, 1164

People v. Alston (2026) 118 Cal.App.5th 575, 587

Fourth Holding:

If another party or the trial court objects to the use of a peremptory challenge, then the party that exercised the peremptory challenge must state the reasons for the challenge; there is no requirement that the objecting party first establish a prima facie case of discrimination.

Instead, it is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection, and this includes determining whether the proffered reason is presumptively invalid.

Authority:

People v. SanMiguel (Jul. 30, 2026, S287786) __ Cal.5th __

People v. Aguilar (2026) 118 Cal.App.5th 1, 11

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1141 [objecting party’s initial objection preserves the right to challenge the court’s failure to consider the presumptively invalid categories]

Fifth Holding:

(Gary note: This is not really a holding in the opinion. The court discusses the specific reasons relied on by the prosecution and found them in presumptive violation of Code of Civil Procedure section 231.7(e). I thought it might be useful and enlightened to include all of the section 231.7(e) statutorily presumptively invalid reasons here.)

Authority:

CCP 231.7(e):

A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Buycks (2018) 5 Cal.5th 857, 893

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. One factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

People v. Myers (1999) 69 Cal.App.4th 305, 310

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

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

Duty of the court, Fines and fees, Sentencing

Case 000894

Posted on by Gary McCurdy

Error and/or relief

The record discloses that the trial court imposed an unauthorized sentence by imposing a fine without specifying the basis of the penalty assessments.

(Gary note: This was not a victory in the purest sense, as it changed nothing for the defendant, whom the trial court found had the ability to pay. I have included this summary for its authority that the court must specify the breakdown of the fine with its various penalty assessments. In the case, the appellate court reversed the imposition of the fine and directed the trial court to reimpose it but specifying the authority for the various assessments that turned the $300 fine into $1170.)

First Holding:

Section 290.3 provides in pertinent part, that every person who is convicted of any offense specified in section 290(c) shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of $300 upon the first conviction or a fine of $500 upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.

Authority:

PEN 290.3(a)

Second Holding:

The imposition of a section 290.3 fine in the total amount of $1,170 or the imposition of a $300 base fine plus $870 in penalty assessments without citing the statutory basis for the penalty assessments are both unauthorized sentences. An unauthorized sentence may be corrected at any time even if there was no objection in the trial court. Such an unauthorized sentence may be corrected even when raised for the first time on appeal.

Authority:

People v. Valenzuela, (2009) 172 Cal.App.4th 1246, 1248-1249 [The fine imposed in this case constituted an unauthorized sentence]

In re Sheena K. (2007) 40 Cal.4th 875, 886,

People v. Smith (2001) 24 Cal.4th 849, 854

Third Holding:

The trial court imposed the sex offender fine in the amount of $1,170 as set forth in the probation report. We construe the court’s statement to mean that it intended to impose the section 290.3 fine and the corresponding penalty assessments, which are listed in the probation report, but erroneously failed to list each penalty assessment and their respective corresponding amounts at sentencing.

We shall therefore modify the judgment to include a $300 section 290.3 fine and penalty assessments in the following amounts: a $60.00 Court Surcharge (sec. 1465.7), a $150.00 State Court Facilities Construction Fund Fee (Gov. Code, sec. 70372(a)), a $300.00 State Penalty Assessment (sec. 1464), a $210.00 County Penalty Assessment (Gov. Code, sec. 76000), a $30.00 DNA Identification Fund Fee (Gov. Code, sec. 76104.6), and a $120.00 DNA Identification Fund fee (Gov. Code, sec. 76104.7).

Authority:

PEN 290.3

PEN 1465.7

GOV 70372(a)

PEN 1464

GOV 76000

GOV 76104.6

GOV 76104.7