Category Archives: Duty of the court

Duty of the court, Jurisdiction, Pleading, Sentencing

Case 001120

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion for a Franklin hearing.

First Holding:

Franklin held that youth offenders must have an opportunity to put on the record information relevant to any eventual Penal Code section 3051 youth offender parole hearing.

Authority:

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

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

Second Holding:

The defendant committed his crime several decades earlier, when he was 21. After the defendant was sentenced, section 3051 became effective in 2014. Section 3051(b) requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a youth offender’s incarceration.

The date of the hearing depends on the youth offender’s controlling offense, defined as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. The section applies to offenders like the defendant who committed their controlling offense when they were 25 years old or younger.

Authority:

PEN 3051

People v. Franklin (2016) 63 Cal.4th 261, 277

Third Holding:

After section 3051’s passage, Franklin held that the section contemplated that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate consideration by the board. Under section 3051(f)(2), persons with information about youth offender may submit statements for review by board. Assembling such mitigating information will typically be more easily done at or near the time of the juvenile’s offense.

Authority:

PEN 3051(f)(2)

People v. Franklin (2016) 63 Cal.4th 261, 283

Fourth Holding:

Cook held that youth offenders whose convictions are final may move in the trial court for a Franklin hearing under section 1203.01. Section 1203.01 provides that postjudgment, a trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation.

Authority:

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

Fifth Holding:

The trial court erred in concluding it did not have jurisdiction to act because the filing of a notice of appeal on an earlier motion for discovery deprived the trial court of jurisdiction to proceed.

Generally, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until it determines the appeal and issues the remittitur, thereby divesting the trial court of jurisdiction over anything affecting the judgment.

However, appellate jurisdiction does not divest the trial court of all power to act. Perfection of an appeal stays proceedings in the trial court only of matters embraced in the matter being appealed. The trial court otherwise may act on any matter embraced in the action and not affected by the judgment or order on appeal.

Authority:

CCP 916

People v. Flores (2003) 30 Cal.4th 1059, 1064

Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089

Sixth Holding:

The Franklin motion was unaffected by and unrelated to the order on appeal. That is, the appeal pending when the defendant filed his Franklin motion concerned a motion for postconviction discovery. In contrast, proceedings under Franklin constitute a remedy of evidence preservation.

Also, Franklin proceedings are unrelated to the validity of the defendant’s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process disturbs the finality of state convictions. Thus, the Franklin hearing the defendant requested was not embraced in the order on appeal and therefore the trial court had jurisdiction to hear his motion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 446-447, 451

People v. Lizarraga (2020) 56 Cal.App.5th 201, 207 [Franklin hearing does not expose a defendant to increase or decrease in sentence]

Seventh Holding:

The court erred in denying the motion as not being in compliance with Cook. The defendant’s motion was sufficient to initiate Franklin proceedings. The requirements for a Franklin motion are minimal, and the motion need not describe in detail the evidence the youth offender seeks to preserve. Instead, where a motion includes relevant criminal case information and legal authority and establishes eligibility for a youth offender parole hearing, the motion should be granted.

Here, the defendant’s motion cited section 1203.01 and 3051 and Cook in his motion. He stated his qualifying age, the original case number. He identified the controlling offense of murder, requested counsel, said he had never had a Frankling hearing, and asked for an opportunity to make a record of his characteristics as a youth offender. Based on this information, the trial court should have granted the defendant’s motion to initiate Franklin proceedings.

We express no opinion on whether the trial court must hold a formal Franklin hearing.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150, 152 [legally sufficient Franklin motion only requires defendant be given opportunity to place additional evidence in record]

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 893–894 [trial court erred by denying Franklin motion that identified original case, relevant law, defendant’s age, sentence, and relief requested]

In re Cook (2019) 7 Cal.5th 439, 446-447, 459 [court has discretion to determine how to conduct process efficiently]

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

Case 001116

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Effective January 1, 2022, B333 amended section 186.22 to impose new substantive and procedural requirements for gang allegations and the substantive offense of gang participation.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

People v. E.H. (2022) 75 Cal.App.5th 467, 477

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Under Estrada, in the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date. When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

AB 333 applies retroactively in this case. AB 333 added new elements to the substantive offense and enhancements in section 186.22.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

When the defendant’s sentence was recalled, his judgments became nonfinal and “the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and [Guzman] regained the right to appeal whatever new sentence was imposed. His judgments thus became nonfinal, and it remains nonfinal in its present posture. His judgments became nonfinal for Estrada purposes and the trial court erred by failing to address the amendments that AB 333 made to the gang enhancement statute.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Salgado (2022) 82 Cal.App.5th 376, 380-381 [the defendant was entitled to benefit of AB 333 because his judgment was no longer final following recall and resentencing under section 1170(d)]

Fourth Holding:

The proper remedy in this case is to remand for the trial court to determine whether the People can establish beyond a reasonable doubt that the error was harmless.

Authority:

People v. Copper (2023) 14 Cal.5th 735, 738, 742-744, 746 [applying Chapman to conclude that lack of jury instruction on AB 333’s new elements was not harmless beyond a reasonable doubt]

People v. E.H. (2022) 75 Cal.App.5th 467, 480 [The proper remedy for this type of failure of proof—where newly required elements were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges]

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

Fifth Holding:

The defendant concedes that retrial is not automatic and requests that we assess the trial court’s error instead of remanding to the trial court. Although some appellate courts have engaged in harmless error analysis in similar situations (e.g., Sek), we conclude that in this case, the trial court is well-situated to make the prejudice determination.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 668-669

Sixth Holding:

Regardless of the outcome on the question of AB 333, the defendant is entitled to full resentencing on remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-393 [a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively]

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

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

Case 001115

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in failing to consider whether the criminal gang activity enhancements were still valid with the passage of AB 333 after the initial conviction and sentencing.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) (with one exception) is legally invalid. The sentencing court, upon being notified that a person in custody is currently serving a prison term that includes a now-invalid section 667.5(b) enhancement, becomes vested with jurisdiction to review the judgment, verify the existence of an invalid enhancement, recall the sentence, and resentence the defendant.

Section 1172.75(d)(2) directs the court to conduct a full resentencing, regardless of whether the enhancement was executed or stayed, and apply any other changes in the law.

Authority:

1172.5

People v. Rhodius (2025) 17 Cal.5th 1050, 1054, 1061–1062

Second Holding:

Once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence. A full resentencing requires the court to consider all sentencing options available under the law at the time of the resentencing hearing.

This includes any ameliorative amendments to criminal statutes (unless otherwise expressed by the Legislature). The amendments to section 186.22 brought about by ABB 333 are ameliorative and apply retroactively.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 163

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

People v. Lopez (2025) 17 Cal.5th 388, 392

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Tran (2022) 13 Cal.5th 1169, 1206‒1207

Third Holding:

A trial court’s resentencing decision under section 1172.75 is reviewed for abuse of discretion. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.

In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 856

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

Fourth Holding:

When the defendant was resentenced under section 1172.75, the court had the jurisdiction and duty to consider the ameliorative effects of AB 333 on the gang enhancements found true by the jury in the pre-AB 333 era. A review of the record from the resentnecing hearing indicates the court did not consider defendant’s section 186.22 arguments. The court’s failure to consider this issue when resentencing defendant requires remand.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 393 [Because the judgment in this case was not final for Estrada purposes, the appellant was entitled to the retroactive application of AB 333]

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

Duty of the court, Sentencing

Case 001114

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court failed to recalculate the defendant’s credit for time served. The matter is remanded for that purpose.

Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.

Authority:

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

People v. Rojas (2023) 95 Cal.App.5th 48, 55 [We accordingly remand so the trial court may calculate the correct credits and prepare a new abstract of judgment]

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

Case 001112

Posted on by Gary McCurdy

Error and/or relief

It was error for the juvenile court to order the minor to pay restitution to the victim at the rate of (a specific dollar amount was named) per month, where the court had not ordered an amount of restitution that was owed, and had not declared that the amount could not be determined at the present time.

Remanded to the juvenile court. For the purposes of making an order regarding the amount of restitution payable by the minor, the court needs to determine what the amount of loss is, or if, instead, the loss cannot be ascertained at the time of disposition.

First Holding:

Welfare and Institutions Code section 730.6(a)(2) provides that upon a minor being found to be a person described in section 602, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, restitution to the victim or victims, if any, in accordance with subdivision (b).

Authority:

WIC 730.6(a)(2)

Second Holding:

Section 730.6(b)(1) provides that restitution to the victim, who incurs an economic loss as a result of the minor’s conduct, shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.

Authority:

WIC 730.6(b)(2)

Third Holding:

Because the statute authorizes the restitution amount to be determined at any time during the term of the commitment or probation, restitution orders may be made after the disposition order, even years later.

Authority:

In re A.R. (2022) 78 Cal.App.5th 184, 187-188 [court affirmed 2021 restitution order where disposition order was made in 2016]

Fourth Holding:

Restitution in a juvenile wardship case may be ordered either pursuant to section 730.6, or alternatively as a condition of probation.

Authority:

WIC 730(a)(1)

In re T.C. (2009) 173 Cal.App.4th 837, 844-845 [holding that section 730.6 specifies when restitution must be imposed, and section 730 states when restitution may be imposed as a condition of probation]

Fifth Holding:

Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. The court abuses its discretion when it acts contrary to law or fails to use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.

Authority:

In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016

Sixth Holding:

The record should be harmonized if possible, including consideration of the probation report. However, we do not believe it is possible in this instance to do so.

(Gary note: The appellate court noted that the probation report’s observations and recommendations were inconsistent because of the lack of determination of the amount of restitution.)

Because of inconsistencies in the probation report, we cannot assume that the court incorporated its recommendations. We must remand to the juvenile court to make the necessary findings.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

In re P.O. (2016) 246 Cal.App.4th 288, 292 fn. 4 [where the probation conditions in question only appear in a probation department form and nowhere else in the record, the reviewing court would nevertheless assume that these conditions were in fact imposed]