Category Archives: Duty of the court

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

People v. Heard (2022) 83 Cal.App.5th 608,

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Duty of the court, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000611

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to instruct the jury about how a defendant who is an initial aggressor can regain the right to self-defense.

First Holding:

The defendant’s defense was self-defense, and the trial court accordingly instructed the jury on perfect and imperfect self-defense under CALCRIM No. 505. Over his objection, the trial court also instructed the jury with CALCRIM No. 3471 regarding an initial aggressor’s right to self-defense. However, the trial court omitted language from CALCRIM No. 3471 about how an initial aggressor can regain the right to self-defense. Omission of that language was prejudicial error. Whether a trial court properly instructed a jury is a question of law that we review de novo.

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1210

Second Holding:

A trial court in a criminal case must instruct on the general principles of law that are closely and openly connected to the facts before the court and are necessary for the jury’s understanding of the case. This includes a sua sponte duty to instruct the jury on an affirmative defense if it appears the defendant is relying on such a defense or if substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Hovarter (2008) 44 Cal.4th 983, 1021

People v. Boyer (2006) 38 Cal.4th 412, 469

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Third Holding:

It is error to give an instruction that is not supported by substantial evidence. Substantial evidence is evidence of reasonable, credible value sufficient to deserve consideration by the jury. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.

Authority:

People v. Marshall (1997) 15 Cal.4th 1, 39–40

People v. Guiton (1993) 4 Cal.4th 1116, 1129

People v. Wilson (2005) 36 Cal.4th 309, 331

People v. Crew (2003) 31 Cal.4th 822, 835

People v. Salas (2006) 37 Cal.4th 967, 982

Fourth Holding:

As an initial matter, the Attorney General contends the defendant forfeited his contention that it was error to omit the language on how an initial aggressor can regain his right to self defense, because he failed to ask the trial court to include the omitted language. Assuming forfeiture applies, we nonetheless may decline to apply it if the instructional error affected the defendant’s substantial rights. Because the contention affects the defendant’s substantial rights, we consider it.

Authority:

PEN 1259

People v. Jennings (2010) 50 Cal.4th 616, 671 [party may not complain on appeal that instruction correct in law and responsive to evidence was too general or incomplete in absence of request for clarifying language]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Fifth Holding:

When a defendant engages in simple assault or trespass and his opponent responds with deadly force so suddenly that the person cannot withdraw, a defendant may immediately use deadly force in self-defense. The qualification in the language omitted from the jury instruction thus applies where the defendant commits a simple assault. But if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.

Authority:

People v. Quach (2004) 116 Cal.App.4th 294, 301

People v. Conkling (1896) 111 Cal. 616, 626–627

People v. Hecker (1895) 109 Cal. 451, 464 [Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

People v. Gleghorn (1987) 193 Cal.App.3d 196, 201

People v. Salazar (2016) 63 Cal.4th 214, 249-250 [exception did not apply where defendant approached victim with cocked gun]

Sixth Holding:

We apply the harmless-beyond-a-reasonable-doubt standard in Chapman to determine whether the error merits reversal. The Chapman standard requires us to determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. We must reverse the conviction under that standard unless we conclude that no rational juror who made the findings reflected in the verdict and heard the evidence at trial court could have had a reasonable doubt regarding the findings necessary to convict the defendant, absent the instructional error.

Authority:

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

People v. Quach (2004) 116 Cal.App.4th 294, 303

People v. Ramirez (2015) 233 Cal.App.4th 940, 953

People v. Merritt (2017) 2 Cal.5th 819, 831

People v. Schuller (2023) 15 Cal.5th 237, 244

Seventh Holding:

Simple assault requires an act that by its nature would directly and probably result in the application of physical force to another person, and the crime does not require actual physical injury or contact to the victim.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 503

Eighth Holding:

An instruction is inconsistent with defendant’s theory of case if it requires acknowledging, if only inferentially, existence of facts which defendant otherwise denied. The language omitted from the instruction was not inconsistent with the defendant’s defense.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1168–1169

People v. Salas (2006) 37 Cal.4th 967, 982–983 [trial court has no duty to instruct on affirmative defense inconsistent with defendant’s theory of case]

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

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

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. 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.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

Amelioration, Discretion, Duty of the court, Sentencing

Case 000585

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court declined to consider dismissing a firearm enhancement, citing its desire not to get involved in changing the sentence of the original sentencing court and not to usurp the role of the parole board in assessing when defendant was ready for release. Because these rationales reflect an abdication of the court’s duty to exercise its sentencing discretion, we must reverse and remand for the court to exercise that discretion at a new, full resentencing.

First Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Second Holding:

Where, as here, a defendant was originally sentenced for a prior prison term enhancement that arose from a conviction that was not a sexually violent offense, that defendant is entitled to a full resentencing where that enhancement is to be stricken and where the trial court is to 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.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 875

Third Holding:

The law regarding the 25 years-to-life firearm enhancement has changed since defendant’s original sentencing hearing in 2004: At that time, a trial court did not have discretion to dismiss that enhancement; since January 1, 2018, trial courts have had the power to dismiss firearm enhancements under section 12022.53 entirely or to substitute a lesser firearm enhancement in their place.

Authority:

PEN 12022.53

People v. Tirado (2022) 12 Cal.5th 688, 695-696

Fourth Holding:

Although we review a trial court’s discretionary sentencing decisions for an abuse of discretion a trial court abuses its discretion when it refuses to exercise that discretion. That is what happened here: What was supposed to be a full resentencing was merely a reaffirmation of a prior sentence and an abdication of discretionary decision-making to others whom the trial court believed were (or had been) better suited to the task. Section 1172.75 requires trial courts to get involved where, as here, the governing law has changed in a way that makes a lower sentence a possibility. What is more, section 1172.75 also enables a trial court to consider postconviction factors, which would be given no weight were a trial court to defer to the original sentence entered before any postconviction conduct comes to pass.

Authority:

PEN 1172.75

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Bigelow (1984) 37 Cal.3d 731, 744

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

Fifth Holding:

The presumption of regularity is rebutted when a trial court affirmatively indicates that it is not following the law.

Authority:

People v. Carter (2014) 227 Cal.App.4th 322, 324

People v. Panozo (2021) 59 Cal.App.5th 825, 839 [where the record is not silent, but rather is ‘at the very least ambiguous as to whether the court understood its statutory obligation, remand is appropriate]

Sixth Holding:

Upon remand, the court is to conduct the full resentencing mandated by section 1172.75. At that time, the court should calculate defendant’s actual custody credits from the date of arrest through the date of resentencing.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000569

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing on a prior strike where the defendant did not waive a trial and did not admit the prior. Errors in the minute order must be corrected to reflect that a sentence on one count was 364 days in the county jail, not 365 days.

First Holding:

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The prosecution bears the burden of proving a strike prior allegation beyond a reasonable doubt.

Authority:

PEN 1158

People v. Frierson (2017) 4 Cal.5th 225, 233

Second Holding:

This procedure was not followed here. While the defendant expressed his intention to admit the strike prior, the record shows he never actually did so. Nor did a jury or the trial court find beyond a reasonable doubt that the defendant suffered the alleged strike prior. Accordingly, we must reverse the true finding as to the strike prior allegation and remand for the trial court to hold a hearing on whether the defendant elects to admit the strike prior allegation or proceed to trial on it and hold further proceedings accordingly.

Authority:

People v. Strike (2020) 45 Cal.App.5th 143, 154 [when true finding on strike prior allegation is reversed, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation]

Third Holding:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. Count 2 is subject to this 364-day limit on imprisonment. Yet here, the Felony Minutes—Pronouncement of Judgment dated specify the defendant’s term of imprisonment for count 2 to be 365 days. Under section 18.5, this length of imprisonment is improper. Accordingly, on remand we direct the trial court to amend the Felony Minutes—Pronouncement of Judgment to reflect a term of imprisonment of 364 days on count 2.

[GARY Note: the court listed no authority for directing the correction of the minute order, so I have listed some cases that it could have relied on.]

Authority:

PEN 18.5

People v. Zackery (2007) 147 Cal.App.4th 380, 387-38

People v. Mitchell (2001) 26 Cal.4th 181, 185