Category Archives: Duty of the court

Duty of the court, Fines and fees, Sentencing

Case 001072

Posted on by Gary McCurdy

Error and/or relief

This is an appeal following a resentencing under section 1172.75. The restitution fine must be vacated because it is more than 10 years old. The trial court erred in failing to calculate the credit for time served and leaving it up to the Department of Corrections and Rehabilitation to correct. The court did not err in selecting the triad 16 months, 2 years, or 3 years for attempted robbery.

First Holding:

Section 1465.9(d) provides for the elimination of any unpaid balance of a restitution fine imposed under section 1202.4 once 10 years has elapsed from the date it was initially ordered.

Authority:

PEN 1465.9(d)

People v. Kopp (2025) 19 Cal.5th 1, 24 [vacating unpaid balance of the restitution fine as required by Penal Code section 1465.9(d)]

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted March 11, 2026, S295038 on a different issue

Second Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand or resentencing, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [a defendant is entitled to custody credit that includes the date of sentencing]

Third Holding:

While section 664 states that, in general, the punishment for an attempted crime is half that prescribed for the completed crime, that only applies where no other provision is made. Section 213(b) provides that the punishment for attempted robbery is punishable “by imprisonment in state prison.”

Under section 18, except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison.

Because section 213(b) specifically provides for the punishment of attempted second degree robbery, the appropriate triad terms for attempted second degree robbery offense are 16 months, two years, or three years.

Authority:

PEN 664

PEN 213(b)

PEN 18

People v. Moody (2002) 96 Cal.App.4th 987, 990

People v. Neely (2009) 176 Cal.App.4th 787, 797 [Section 213(b), when combined with section 18, provides that attempted second degree robbery is punishable by 16 months, two years, or three years in state prison.]

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case 001069

Posted on by Gary McCurdy

Error and/or relief

The court erred by engaging in factfinding at the prima facie stage of the proceedings on the defendant motion to vacate his manslaughter conviction under section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

SB 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to seek retroactive relief under the law as amended.

SB 775 (2021-2022 Reg. Sess.) later expanded the statute to apply to attempted murder under the natural and probable consequence doctrine and manslaughter.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

Second Holding:

Section 1172.6(a) applies to those convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime or a person convicted of attempted murder based on the natural and probable consequences doctrine. To be eligible for relief, the petitioner must make a prima facie showing that he could not presently be convicted of murder or attempted murder under changes to these theories of murder liability made effective on January 1, 2019, by SB 1437.

If the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing where the prosecution bears the burden of proving beyond a reasonable doubt that the defendant could still be convicted of murder under current law.

Authority:

PEN 1172.6

Third Holding:

At the prima facie stage, the court may deny a resentencing petition only if the petitioner is ineligible for relief as a matter of law. That is, the petition and the record of conviction must establish conclusively that the defendant is ineligible for relief. This is a pure question of law we review de novo.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

While the trial court may look to the record of conviction after appointing defense counsel, the prima facie inquiry is limited. The court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if those factual allegations were proved. If so, the court must issue an order to show cause.

At that early stage, the trial court should not reject the petitioner’s factual allegations on credibility grounds or engage in factfinding that involves the weighing of evidence or the exercise of discretion. But if the record contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

(Gary note: For the most part, the balance of the opinion discusses facts specific to this case to show that the preliminary examination, the defendant’s admission that he personally used a firearm, and that he admitted that manslaughter is a serious felony did not establish that the defendant was the actual killer. For the trial court to have reached a conclusion that the defendant was the actual killer, it would have had to engage in factfinding that is not permitted at the prima facie stage. The court should have issued an order to show cause and held and evidentiary hearing, which is what the appellate court remanded the matter for.)

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Jones (2005) 30 Cal. 4th 1084, 1120 [the finding of personal use does not in itself prove defendant was the actual killer]

Abstracts and Minutes, Duty of the court, Plea bargains, Sentencing

Case 001063

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term. As we are remanding for a full resentencing, the parties may address their issues in the trial court with the accuracy of the abstract of judgment.

First Holding:

Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause.

Courts have recognized two exceptions to this certificate requirement. A certificate is not required for: (1) issues involving a search and seizure, the validity of which was contested under section 1538.5, and (2) issues regarding proceedings held after the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Regarding this latter category, the the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 781-782, 785

Second Holding:

Where a defendant has agreed to a specified sentence in return for his or her plea, the defendant must obtain a certificate of probable cause to challenge the trial court’s imposition of that exact sentence on appeal.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 73, 78 [one who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment]

People v. Hester (2000) 22 Cal.4th 290, 295 [defendants are estopped from complaining of sentences to which they agreed]

Third Holding:

But where a defendant negotiates a plea term which provides for a maximum sentence, rather than a specified sentence, which necessarily contemplates further adversary proceedings in which the trial court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain, a certificate of probable cause is not required because, in substance, the defendant’s appeal of the selected sentence is not an attack upon the plea itself.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 785

Fourth Holding:

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term.

The defendant was convicted of burglary by taking the firearm and then of possessing the firearm after she took it. Under these circumstances, there is a course of conduct pursuant to one criminal objective—to possess the firearm by stealing it from the hotel room—and based on that defendant cannot be punished for both offenses under section 654.

Authority:

PEN 654

People v. Atencio (2012) 208 Cal.App.4th 1239, 1239 [sec. 654 precluded punishment for both grand theft of a firearm and being a felon in possession of the same firearm]

People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [recognizing sec. 654 has been held to preclude punishment for both burglary and theft where the burglary is based on an entry with intent to commit that theft]

Fifth Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. At its simplest, section 654 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Previously, trial courts were required to impose the longest possible term when section 654 applied. In January 2022, the statute was amended to provide courts with discretion to select either the greater or the lesser term and stay execution of the remaining term.

(Gary note, of marginal historical interest at best–noted also in my summary of case 000855: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed. Now you know.)

Authority:

PEN 654(a)

People v. Atencio (2012) 208 Cal.App.4th 1239, 1243

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Sixth Holding:

A sentence in violation of section 654 is an unauthorized sentence that generally may be corrected on appeal without an objection by the defendant in the trial court. This general rule, however, is subject to an exception. Where a defendant has pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The exception does not preclude defendant from raising section 654 on appeal where the plea does not have the defendant agreeing to a specific term.

Authority:

Cal. Rules of Court, rule 4.412(b) [By agreeing to a specified term in prison personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record]

People v. Hester (2000) 22 Cal.4th 290, 295

Seventh Holding:

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. Upon remand, the trial court may revisit all of its sentencing choices in formulating an aggregate term, and must impose a sentence for each of defendant’s convictions.

Authority:

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

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

Eighth Holding:

Both parties agree that the abstract of judgment contains errors. They do not necessarily agree on the errors. Because we are remanding the case for a full resentencing hearing, which will necessitate a new abstract of judgment, we need not address the parties’ contentions regarding alleged errors in the current abstract. The parties may address any arguments regarding the correct amount of the fees and fines to the trial court during the resentencing hearing.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court’s oral pronouncement of judgment]

Appellate Principles, Duty of the court, Plea bargains

Case 001057

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to dismiss defendant’s misdemeanor conviction as contemplated by the parties’ plea agreement and affirm the judgment as modified.

Holding:

The terms of the parties’ plea agreement required the trial court to dismiss the misdemeanor count for carrying a dirk or dagger (count 2) because defendant failed to successfully complete probation, leaving the felony count remaining. While the trial court sentenced defendant to two years on the felony count, it did not address the misdemeanor count. In accordance with the parties’ plea agreement, we shall dismiss defendant’s misdemeanor conviction for carrying a dirk or dagger.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931 [a plea agreement is a contract that is binding upon the parties and the court]

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

Case 001053

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.

First Holding:

Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged. The trial court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Second Holding:

A defendant is suitable for diversion if:

(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment;

(2) the defendant agrees to waive their speedy trial rights;

(3) the defendant agrees to comply with treatment requirements; and

(4) the defendant will not pose an unreasonable risk of danger to public safety as defined.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Third Holding:

But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Fourth Holding:

When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.

(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.

(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”

(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”

(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Fifth Holding:

The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment

In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.

Authority:

People v. Calabar (2025) 117 Cal.App.5th 41, 58

Sixth Holding:

We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.

Authority:

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Seventh Holding:

When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892

People v. Moine (2021) 62 Cal.App.5th 440, 452

People v. Frahs (2020) 9 Cal.5th 618, 640-641

People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]