Category Archives: Duty of the court

Appellate Principles, Duty of the court, Sentencing

Case 000893

Posted on by Gary McCurdy

Error and/or relief

It was error for the judge to stay the section 12022.1 enhancement under section 1385(b)(1). An enhancement may be stricken or imposed, unless there is some other legal reason it must be stayed rather than imposed.

First Holding:

Ordinarily, an enhancement must be either imposed or stricken in furtherance of justice under section 1385. Section 1385(b)(1) adds that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.

There are exceptions to this rule that permit courts to stay the punishment imposed for an enhancement, for example section 654 and rule 4.447 of the California Rules of Court. These exceptions are not discretionary; they are limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.

Authority:

PEN 1385(b)(1)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

According to the transcript of the sentencing hearing, the trial court here relied on section 1385(b)(1) when it purported to stay the section 12022.1 enhancement. It does not appear that any overriding statute prohibits imposition of the enhancement in this case.

As a result, the court lacked the authority to stay the enhancement. In general, we presume a trial court knew and followed the law. Based on the statutory provision cited by the court, we conclude the court intended to strike the punishment for the enhancement rather than imposing an unauthorized stayed sentence.

The minute order from the sentencing hearing supports this conclusion by indicating that the court struck the enhancement, though it suggests the court did so at a prior hearing, which is not supported by the transcript. We will modify the judgment accordingly.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Amelioration, Duty of the court, Sentencing

Case 000892

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant a full resentencing at the hearing held under section 1172.75. At the initial hearing, the defendant agreed that the court could proceed with striking the now-invalid prior prison term enhancement with the judge’s assurance that the defendant could seek a full resentencing at a later date.

First Holding:

When the defendant did request the full resentencing, the trial court denied it based on the Tang decision, which held that a defendant was not eligible for resentencing because his prior conviction had previously been stricken and he was not serving a sentence under which that prior conviction was a component.

But Tang was not applicable. In Tang, the prior conviction enhancement was stricken on direct appeal a full decade before Tang sought resentencing under section 1172.75.

Here, the enhancement was stricken as part of a single proceeding under section 1172.5 held on two dates. Moreover, the defendant only consented to bifurcating that one proceeding based on the court’s assurance it would later conduct a full resentencing hearing, and it was improper for the court to later render that promise meaningless.

Authority:

PEN 1172.75

People v. Tang (2025) 109 Cal.App.5th 1003

(Gary note: the court did not expressly cite any authority for the recognition that a defendant eligible for relief under section 1172.75 is entitled to a full resentencing. The courts have interpreted section 1172.75 as, by its plain terms, requiring a full resentencing, not merely that the trial court strike the newly invalid enhancements. I have set forth two cases as a convenience for the reader that support that principle, though Buycks was addressing a different statute.)

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing `a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Duty of the court, Jury trial, Standard of review

Case 000874

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecutor’s exercise of a peremptory challenge during voir dire.

First Holding:

Section 231.7(a), prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute specifies the process that must be followed if a party or the trial court objects to the use of a peremptory challenge. Two different subdivisions of the statute provide lists of presumptively invalid reasons for exercising a peremptory challenge and specify the processes that must be followed if such reasons are asserted in a section 231.7 scenario.

Relevant here, subdivision (g) lists three categories of presumptively invalid reasons that have historically been associated with improper discrimination in jury selection. Those reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or those of counsel for the objecting party.

Authority:

CCP 231.7

Second Holding:

On appeal, we review the overruling of a section 231.7 objection de novo, with the trial court’s express factual findings reviewed for substantial evidence. We may only consider those reasons given by the party exercising the peremptory challenge and those factual findings expressly made by the trial court. If we conclude the trial court erred by overruling an objection, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Third Holding:

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.

But that rule is not automatic. Further, courts have recognized there are circumstances in which it should not apply. Among those circumstances are when its application would be incompatible with the fundamental purposes of a statutory scheme.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 589–590

In re L.C. (2023) 90 Cal.App.5th 728, 738,

In re S.B. (2004) 32 Cal.4th 1287, 1293

In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]

In re Frank R. (2011) 192 Cal.App.4th 532, 539 [conflict with due process]

Fourth Holding:

As explained in Espiritu, the Legislature enacted section 231.7 in response to shortcomings of the inquiry under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, overruled in part in Johnson v. California (2005) 545 U.S. 162.

Whereas Batson/Wheeler targets purposeful discrimination only, section 231.7 aims to eliminate purposeful and unconscious bias. And, whereas Batson/Wheeler employs a largely deferential burden shifting evaluation which places the ultimate burden of persuasion on the objecting party, section 231.7 sets forth a comprehensive process that expressly imposes virtually all burdens on the party exercising the peremptory challenge or the trial court.

Authority:

CCP 231.7

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1139

People v. Lenix (2008) 44 Cal.4th 602

People v. Lomax (2010) 49 Cal.4th 530, 569

Fifth Holding:

Although not expressly stated in the statute, it logically flows from the legislative purpose and established scheme that the first required step in such an evaluation is to consider whether any of the reasons fall into a presumptively invalid category listed in subdivision (e) or subdivision (g).

Stated differently, the presumptively invalid categories embody circumstances in which the Legislature has declared the court must presume an objectively reasonable person would view membership or perceived membership in a listed group as a factor in the use of the peremptory challenge, unless the party exercising the challenge overcomes the presumption in the statutorily specified manner.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 893 [after party objects under sec. 237.1, it is trial court’s responsibility to apply correct procedure to decide whether to sustain objection]

Sixth Holding:

(Gary note: The opinion then sets forth the specifics of the questions and answers and exercise of the peremptory challenge. Those details are unnecessary in this type of summary that focuses on the principles relied on rather than specific application, so I have chosen to omit them. Having found error in overruling the defense objection to the exercise, the court reversed and remanded for a new trial. Erroneously overruled objections under section 231.7 are not subject to harmless error analysis.)

Authority:

People v. Aguilar (2026) 118 Cal.App.5th 1, 10

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

Appellate Principles, Discretion, Duty of the court, Plea bargains, Sentencing

Case 000863

Posted on by Gary McCurdy

Error and/or relief

We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.

First Holding:

After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.

The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.

Authority:

PEN 1385(b)(1)

People v. Haykel (2002) 96 Cal.App.4th 146, 151

People v. Lopez (2004) 119 Cal.App.4th 355, 364-365

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123

People v. Bradley (1998) 64 Cal.App.4th 386, 391

Second Holding:

A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.

The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).

Authority:

PEN 1260

People v. Vieira (2005) 35 Cal.4th 264, 294

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