Category Archives: Duty of the court

Due process, Duty of the court, Sentencing, Sixth Amendment, Standard of review

Case 001048

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.

First Holding:

CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.

Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.

The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.

Authority:

U.S. Const., Sixth Amend. and Fourteenth Amend.

Calif. Const., art. I

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

Second Holding:

This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Third Holding:

The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Fourth Holding:

On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]

People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4

Amelioration, Duty of the court, Elements of crime, Sentencing, Standard of review

Case 001047

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially applied the wrong standard when it denied the defendant’s motion for recall of his sentence under section 1172.6. We accordingly reverse the order denying the defendant’s petition for resentencing and remand for a new evidentiary hearing.

First Holding:

To the end of ensuring a person’s sentence is commensurate with the person’s individual criminal culpability, SB 1437 (effective January 1, 2019) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

SB 1437 added section 189(e) (limiting application of the felony-murder rule) and section 188(a)(3) (to be convicted of murder, a principal in a crime shall act with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime). Under SB 775, effective January 1, 2022, these ameliorative changes to the law expressly apply to attempted murder and voluntary manslaughter.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 986

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

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

SB 1437 also created a procedure, under section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law.

A defendant commences that procedure by filing a petition containing a declaration that, among other things, the petitioner could not presently be convicted of murder or attempted murder because of the changes to section 188 or 189 made by SB 1437.

Authority:

PEN 1172.6(a)(3)

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

People v. Gentile (2020) 10 Cal.5th 830, 847

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

Third Holding:

At the prima facie stage, the trial court takes as true the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction.

At the prima facie stage, the trial court does not engage in factfinding that involves the weighing of evidence or exercise of discretion. If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing.

Authority:

PEN 1172.6(b)(3), (c), and (d)(1)

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

People v. Duchine (2021) 60 Cal.App.5th 798, 815

People v. Harden (2022) 81 Cal.App.5th 45, 56

Fourth Holding:

A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 579

People v. McCoy (2001) 25 Cal.4th 1111, 1122 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea]

Fifth Holding:

In contrast, a defendant is liable as a direct aider and abettor of implied malice murder if the defendant, by words or conduct, aids the commission of a life-endangering act, not the act’s result. The direct aider and abettor must know that the perpetrator intended to commit the act, intend to aid the perpetrator in committing the act, know that the act is dangerous to human life, and act in conscious disregard to human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Sixth Holding:

Section 1172.6(d)(3) required the trial court to act as an independent factfinder––resolving the disputed facts and determining for itself, beyond a reasonable doubt, whether the defendant was guilty of murder under current law—not to ask whether a jury could or would convict him if the matter were retried. The trial court’s statements show it did not perform that role here.

(Gary note: The appellate court then recited comments by the trial court that reflected the trial court’s apparent belief that its role was to determine whether there was sufficient evidence to support the jury’s finding. The crux of section 1172.6(d)(3) is that the judge reviewing the section 1172.6 petition must determine whether he or she is convinced beyond a reasonable doubt that the evidence shows that the defendant IS guilty (not “could be found guilty”) of murder under the current elements.)

Authority:

PEN 1172.6(d)(3)

Seventh Holding:

The trial court’s failure to perform the factfinding section 1172.6(d)(3) requires is subject to harmless error review. Reversal is required if it is reasonably probable Lopez would have obtained a more favorable result in the absence of the error. We cannot conclude that the error was not prejudicial. The trial court’s order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded for a new evidentiary hearing under section 1172.6(d)

(Gary note: In the course of its discussion on whether the error was prejudicial, the appellate court discussed the various theories potentially arguable as a theory under which the defendant could be guilty of murder as currently defined. It concluded that it is impossible to determine from the trial court’s comments the findings of fact that would support either theory. It stressed that, for the trial court to deny the defendant’s petition for recall, the trial court was required to find facts that led it to conclude beyond a reasonable doubt that the defendant was guilty of murder under current law. And it did not do that factfinding.)

Authority:

People v. Vance (2023) 94 Cal.App.5th 706, 715–716

People v. Watson (1956) 46 Cal.2d 818, 836

Appellate Principles, Duty of the court, Jury instructions

Case 001046

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not sua sponte instruct the jury that, for the defendant to be found guilty of petty theft, the jury must unanimously agree on the item(s) taken.

First Holding:

When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.

The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 464-465

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

Second Holding:

The failure to give a unanimity instruction may be harmless error if the appellate court can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 466

People v. Napoles (2002) 104 Cal.App.4th 108, 119 [erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors s not reasonably possible]

Third Holding:

(Gary note: The court described the ambiguity of the defendant’s intent in conjunction with moving Item A from the house to the garage, where he left it before fleeing. It concluded that the error was therefore not harmless. But it made an interesting comment regarding the respondent’s argument, which I set forth in this Third Holding.)

Because the Attorney General addresses only the [Item A], we take it as a concession there is reasonable doubt as to whether the jury could have come to a unanimous decision on the other possible acts of theft.

Authority:

People v. Bouzas (1991) 53 Cal.3d 467, 480 [state’s failure to respond to appellant’s point concedes it]

Duty of the court, Probation Parole PRCS, Sentencing

Case 001038

Posted on by Gary McCurdy

Error and/or relief

It was a violation of separation of powers for the trial court to delegate authority to the probation department the decision of which counseling or rehabilitation program deemed appropriate by the probation officer. The trial court is directed to modify the treatment condition by either specifically identifying the type of treatment program(s) or striking the condition altogether.

First Holding:

The California Constitution states that the powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety.

Authority:

Calif. Const., art. III, sec. 3

PEN 1203.1

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

But no statutory provision sanctions a delegation of unlimited discretion to a probation officer to implement or interpret probationary terms. These determinations are essentially judicial functions. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

The defendant’s treatment condition delegates unlimited discretion to his probation officer to determine and implement the nature and amount of treatment that the defendant may be required to complete, including whether a program is residential or outpatient. Because the treatment condition does not identify the type of counseling or treatment that he is required to complete, the trial court’s imposition of the condition is an improper delegation of authority.

Authority:

People v. Cervantes (1984) 154 Cal.App.3d 353, 358

People v. Smith (2022) 79 Cal.App.5th 897, 902

Duty of the court, Plea bargains, Sentencing

Case 001035

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s failure to appear for sentencing, the court declined to reduce the felony to a misdemeanor as contemplated by the plea agreement that was accompanied by a Cruz waiver. This was error, as the court did not find that the defendant wilfully failed to appear for sentencing.

First Holding:

In Cruz, our Supreme Court held a defendant who pleads guilty pursuant to a plea bargain that is subsequently disapproved by the trial court for defendant’s failure to appear is entitled to withdraw his or her plea. But if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained for term.

Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

People v. Jones (2026) 119 Cal.App.5th 261, 265

Second Holding:

Here, the trial court did not advise the defendant of his right to withdraw his plea if the court imposed a more severe sentence. Nor did the court advise him that his conviction would not be reduced to a misdemeanor if he willfully failed to appear for sentencing. But the defendant’s written plea form stated that he would not be allowed to withdraw his guilty plea and that his negotiated disposition would be cancelled if he willfully failed to appear at sentencing.

To deprive him of the benefit of his plea bargain, the trial court must find that the defendant willfully failed to appear at his sentencing hearing. A defendant acts willfully if he knows what he is doing and intends to do it. The term ‘willful’ requires only that the prohibited act occur intentionally.

Authority:

PEN 7(b)(1)

People v. Atkins (2001) 25 Cal.4th 76, 85–86

In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438

Third Holding:

It is the People’s burden to prove a defendant willfully failed to appear for sentencing after being released pursuant to a Cruz waiver. This burden requires the People to present admissible evidence.

The People concede they did not present sufficient evidence to show appellant willfully failed to appear for sentencing. In fact, they presented no evidence. The People relied on the prosecutor’s conclusion that there’s a willful failure to appear because the defendant is responsible for getting to court for sentencing.

Authority:

People v. Jones (2026) 119 Cal.App.5th 261, 265

Fourth Holding:

From our review of the record, it does not appear that the trial court found, explicitly or implicitly, that the defendant’s failure to appear was willful. We presume that a trial court understands and properly carries out its duties. But the trial court’s statements here suggest that it did not consider whether the defendant’s failure to appear was willful. On this record, we must conclude that the trial court imposed the greater term of a felony conviction exclusively on the fact of the defendant’s failure to appear for the hearing, without determining whether the failure to appear was willful.

The matter is remanded to the superior court so that it can give the parties the opportunity to present evidence and to make a finding of whether the defendat’s failure to appear at his sentencing hearing was willful.

Authority:

EVID 664

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Jones (2026) 119 Cal.App.5th 261, 266