Category Archives: Gary Musings

Fines and fees, Gary Musings, Sentencing

Case 001000

Posted on by Gary McCurdy

Error and/or relief

The sentence on the defendant’s misdemeanor counts should have been stayed under section 654 as part of the same conduct as the felony.

First Holding:

Under rule 4.412(b), a defendant is estopped from challenging his or her sentence based on section 654’s prohibition of double punishment where the defendant agreed to a specified term in prison or county jail and is sentenced to that term or a shorter one. Rule 4.412(b) codifies one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.

But in this case, the defendant did not expressly agree to any sentencing irregularity in exchange for a benefit. The record shows that it was an open plea, meaning that no promises were made as to his sentence. The defendant agreed that he could be sentenced to up to four years in one case and six years in the other, but those terms represented the maximum permitted for the offenses regardless of any plea agreementg. He faced anything up to and including the maximum term allowed.

Authority:

PEN 654

Cal. Rules of Court, rule 4.412(b)

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

People v. Velasquez (1999) 69 Cal.App.4th 503

People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 574–575

People v. Williams (1998) 17 Cal.4th 148, 156

People v. Henderson (2021) 67 Cal.App.5th 785, 788 [an open plea is one under which there is no promise about the nature or duration of the defendant’s sentence]

Second Holding (and Gary Musings):

In Jones, the defendant agreed to plead no contest to all charges and admit the enhancement allegations in exchange for a lid below the maximum term in sentencing. The lid was not the maximum exposure Jones would otherwise face absent the plea agreement. Rather, it restricted the sentence the trial court could impose but to a term less than Jones’s maximum exposure. It was not an open plea.

In Cole, the defendant pleaded guilty on the condition that his sentence would not exceed 25 years to life, whereas he was exposed to a term of 75 years to life but for the agreed lid. It, too, was not an open plea.

Thus, in Jones and Cole, the estoppel principle described in Hester applied, because the defendants were not permitted to complain on appeal about sentences that were limited by the terms of their pleas to something lower than the maximum that could have been imposed in the absence of their agreements.

That is not the case here, as the agreement did not specify a lid. There was simply a recognition of the maximum possible sentence that could be imposed for each count, regardless of any agreement.

(Gary note: In Jones and Cole, as stated in Jones, had they a problem with their sentences, they should have attempted to withdraw their pleas in the trial court when the sentences were imposed. Though not expressed, implicit in the court’s reliance on Cole and Jones as examples where estoppel applies is the recognition that an appeal from a denied motion to withdraw a plea requires a certificate of probable cause. For a pretty good discussion of certificates of probable cause, I have included Buttram in the Authority listed below, but it was not cited by or discussed in the opinion.

(If your client wishes to appeal after entering a plea agreement of any sort, you need to research whether a certificate of probable cause is required. If there is any chance at all that the appeal would undermine any of the terms of the plea agreement, a certificate is likely required. A common myth is that a certificate is not required to appeal any errors alleged to have occurred after the plea. Don’t fall for it. Instead, the focus is on the plea agreement itself. And the requirement of a certificate of probable cause is separate from the doctrine of estoppel addressed in this opinion. In Jones, there was no disagreement that omission of the application of section 654 created an unauthorized sentence. The obstacle was that the defendant was estopped from raising the issue because of his agreement.

(Although they’re all important, one must-read case is People v. Panizzon (1996) 13 Cal.4th 68, which I’ve listed below but was not cited by the court here. The defendant pleaded guilty with an agreement on the sentence. Unbeknownst to him at the time of his own sentencing, his co-defendants apparently received significantly lower sentences. He appealed, claiming his sentence was disproportionate. Because he had not sought and been issued a certificate of probable cause, the Supreme Court concluded his appeal should have been dismissed. His challenge to his sentence, even on constitutional grounds, was a challenge to his plea, and thus a certificate was required.

(Also note that, under section 1237.5(a), a certificate of probable cause can be issued only where the application for a certificate shows “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”

(Although it is described as a certificate of probable cause, “it is not the trial court’s responsibility to determine if there was error in the proceedings. The trial court’s sole objective is to eliminate those appeals having no possible legal basis by refusing to issue a certificate of probable cause. See People v. Holland (1978) 23 Cal.3d 77, 84, quoting People v. Warburton (1970) 7 Cal.App.3d 815, 819. Holland also reminds us (in footnote 6) that a petition for writ of mandate is the means by which one may challenge a denial of an application for certificate of probable cause. Neither Holland nor Warburton were cited in the opinion, because a certificate of probable cause was not even an issue in the case.

(Until 2022, if it appeared to the clerk of the superior court that a notice of appeal from a guilty plea required a certificate of probable cause, the clerk would mark the notice received but inoperable. To get past that hurdle, the notice would have to reflect that it is a challenge to the sentence and was not a challenge to the plea (or that it was an appeal from a guilty plea after a denial of a motion to suppress evidence on search and seizure grounds under section 1538.5. Rule 8.304(b) was amended effective 1/1/22, and now provides that “If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.” That was a vast improvement, from our defense perspective, because at least the notice of appeal initiated an appeal, albeit only on grounds not requiring a certificate.

(All of this Gary note is triggered by the court’s comment in Jones, cited by this court as distinguishable, that a defendant facing a 654 problem on an agreed-upon sentence must deal with it at the trial court level by moving to withdraw his or her plea timely. So this Gary note is really dealing with sub-sub-nonissues that I think you should nonetheless be aware of. Think of this lengthy aside as getting more for your money. Money? We ain’t got no money! We don’t need no money. You don’t have to show me any stinking money. Oops, sorry, got carried away a bit there.)

Authority:

People v. Jones (2013) 217 Cal.App.4th 735, 739

People v. Cole (2001) 88 Cal.App.4th 850, 856-858

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

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

People v. Panizzon (1996) 13 Cal.4th 68

People v. Holland (1978) 23 Cal.3d 77, 84

People v. Warburton (1970) 7 Cal.App.3d 815, 819

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. 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. If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

People v. Assad (2010) 189 Cal.App.4th 187, 200

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005

Fourth Holding:

As there was no discussion at sentencing of section 654, we must affirm the sentence if an implied finding that section 654 does not apply is supported by substantial evidence. The record demonstrate that the defendant committed the offenses the misdemeanor cases with the objective to steal the contents of his victims’ vehicles. There is no evidence to support a finding that he formed a separate intent and objective for each offense for which he was sentenced. Accordingly, the sentences on the misdemeanor counts must be stayed.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 730–731

People v. Coleman (1989) 48 Cal.3d 112, 162

Fifth Holding:

Separate restitution fines may be imposed for each case that are not consolidated, even if resolved jointly by plea bargain. Defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines. This straightforward application of the requirement that fines be imposed in every case serves the purpose of the state Restitution Fund, as well as the rehabilitative and deterrent functions of restitution fines.

Authority:

People v. Soria (2010) 48 Cal.4th 58, 64-66

Amelioration, Gary Musings, Sentencing, Standard of review

Case 000723

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court was required to revisit whether the gang enhancement attached to the felony assault charge was still valid in light of changes to the gang criminal activity statutes under AB 333. When asked to strike the enhancement, the trial court stated that it did not have discretion to relitigate the facts underlying the gang enhancement. This was error.

First Holding:

Section 1172.75 rendered legally invalid any prior prison term enhancement imposed before January 1, 2020 (unless the enhancement was imposed for a prior sexually violent conviction), and it created a resentencing procedure for defendants who are currently serving sentences that include such an enhancement. Section 1172.75(c) requires a court to strike any now-invalid prior prison term enhancement and recall the defendant’s sentence.

Section 1172.75(d) provides instructions for resentencing. Among other things, the provision requires the court to resentence the defendant under current law, including any changes in law that reduce sentences.

Authority:

PEN 1172.75

Second Holding:

We review a trial court’s sentencing decisions for abuse of discretion. A court abuses its discretion when it acts arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its discretion such that it does not exercise its discretion at all. We independently review questions of statutory interpretation implicated by the trial court’s decisions.

Authority:

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Mathis (2025) 111 Cal.App.5th 359, 366

Third Holding:

Effective January 1, 2022, AB 333 made several changes to the law governing the gang enhancement.

First, AB 333 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, it changed the requirement that a gang’s members individually or collectively engage in a pattern of criminal activity to now require that any such pattern be collectively engaged in by members of the gang.

Third, it narrowed the definition of a pattern of criminal gang activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date of the currently charged offense; (2) the pattern offenses were committed by two or more gang members, as opposed to just persons; (3) the pattern offenses commonly benefitted a criminal street gang; and (4) none of the pattern offenses is the same as the currently charged offense.

Finally, 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. Examples of a common benefit that are more than reputational, under the amended provision, include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

PEN 186.22

Fourth Holding:

AB 333’s amendments to section 186.22 apply retroactively to the defendant’s case because they are ameliorative changes and the defendant’s case became nonfinal when the court vacated and recalled his sentence under section 1172.75.

Authority:

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

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

People v. Lopez (2025) 17 Cal.5th 388, 396–400

Fifth Holding:

In Stamps, the Supreme Court held that a trial court may not modify a plea agreement because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. But, as the Supreme Court explained in Doe v. Harris, the terms of the plea agreement can be affected by changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Thus, under Doe, the defendant’s 2016 plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333. Consequently, requiring the parties compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. We therefore conclude that the gang-related enhancement findings must be vacated and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 701

Doe v. Harris (2013) 57 Cal.4th 64, 73-74

People v. Harrell (2023) 95 Cal.App.5th 161, 168

People v. Lopez (2021) 73 Cal.App.5th 327, 346

Extensive Gary Note, NOT In The Opinion:

Gary note: I think I first noted this in my summary for Case 000532. But effective 1/1/2025, section 1171 provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a case that originally issued a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?”

On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.”

The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.  As I stated, the “published” opinion also was wiped off the books when the Supreme Court ordered it depublished.

In the recent decision People v. Mitchell (2026) 19 Cal.5th 729, the Supreme Court indicated its awareness of section 1171–as it obviously did when it transferred the Montgomery case–but declined to apply it where the case was a direct appeal from the judgment itself, in which the appellant challenged the stipulated sentence–in which he agreed to and received an upper term before section 1170 was amended to require jury findings for upper terms.

See Mitchell’s footnote 9. Keep in mind that section 1171 was created to guide courts in the handling of newly enacted ameliorative legislation. The Supreme Court in Mitchell seems to have left open the question where the appeal is from the original judgment itself, rather than an appeal from an attempt at securing relief from ameliorative statutes. Its footnote 9 ends, “We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

And for the rest of the story, the Court of Appeal has since, in an unpublished sentence, remanded the matter to the trial court to permit the defendant to seek relief under the ameliorative provisions.  At that time, the defendant may present the argument that section 1171 bars the prosecution or the court from seeking that the plea agreement be set aside if either the prosecutor or the court is not satisfied with any resulting modification of the sentence.

Authority:

Gary has no authority, just musings.

Abstracts and Minutes, Appellate Principles, Gary Musings, Jurisdiction, Sentencing

Case 000701 and Gary Musings

Posted on by Gary McCurdy

Error and/or relief

The court erred when it failed to order joint and several liability for the victim’s restitution. The co-defendant was tried separately and sentenced by a different judge in an earlier proceeding.

First Holding:

In the co-defendant’s proceedings, the court ordered joint and several liability for the victim’s restitution, but in sentencing the defendant in this proceeding, the court (a different judge) made no mention of joint and several liability. A joint and several direct victim restitution order under section 1202.4(f) is not expressly permitted by statute, but is also not prohibited. The trial court therefore has discretion to make the obligation of multiple codefendants joint and several.

Authority:

People v. Arnold (1994) 27 Cal.App.4th 1096, 1099

People v. Neely (2009) 176 Cal.App.4th 787, 800

People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052

Second Holding:

A restitution order is intended to compensate the victim for the actual loss he or she incurred; however, it is not intended to provide the victim with recovery greater than that amount. When multiple defendants are culpable, the issue of double recovery is avoided when the trial court holds codefendants jointly and severally liable for the full amount of a crime victim’s economic loss.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172

People v. Fortune (2005) 129 Cal.App.4th 790, 794–795

People v. Leon (2004) 124 Cal.App.4th 620, 622 [a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Third Holding:

An abstract of judgment may be modified to reflect that the victim restitution order is a joint and several obligation.

Authority:

People v. Cornejo (2016) 3 Cal.App.5th 36, 43

People v. Neely (2009) 176 Cal.App.4th 787, 800–801 [ordering modification of the judgment to expressly state that the restitution order is joint and several as to the defendant and the codefendant]

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [to avoid double recovery, appellate court modified judgment to provide expressly that the direct victim restitution ordered is joint and several]

Fourth Holding:

As a matter of equity, and because there is no double recovery, the matter should be remanded so that the court can modify the restitution order to make liability joint and several. Section 1202.46 confers continuing jurisdiction to modify an order for victim restitution.

Authority:

PEN 1202.46

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

Gary Musings, Triggered By Third Holding:

Gary Musings note: I think the “Third Holding” and the authorities cited by the court demonstrate a prime example of the importance of reading the cases cited, and do not simply rely on what I have written in these summaries. A critical component of this decision that causes me pause is that the trial court did NOT make an order for joint and several liability; it apparently made no comment on it at all. This is not a case where the record shows that the court did so order but the order didn’t get reported properly in the abstract of judgment or minute order. It is not a case where the judge made comments indicating an intent to order joint and several liability, but the order was not expressed by the court. This is a case where the judge simply gave no indication at all regarding joint and several liability with the co-defendant who had been sentenced in a different proceeding.

First, I do not doubt that the Court of Appeal has the authority to modify the judgment OR the abstract of judgment. Section 1260 states, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

But if I had submitted a brief that relied on the Cornejo, Neely, and Blackburn cases as authority for the court to actually change a judgment by ordering modification of the abstract of judgment, I think I could legitimately expect the opposition to point out the following rebuttals.

(A.) One cannot tell from the Cornejo decision whether the trial court had ordered joint and several liability but it wasn’t reflected in the abstract, or whether the trial court was silent and the appellate court simply modified the judgment by modifying the abstract (which is what happened in this Case 000701). Thus, we cannot determine whether the modification simply recorded the actual order in the abstract of judgment or the appellate modified the judgment. We don’t know.

(B.) In Neely, the trial court DID order joint and several liability, and the abstract simply did not reflect that, so the appellate court ordered the abstract amended to reflect what the trial court ordered. (That is NOT what happened in this Case 000701.)

(C.) In Blackburn–a case somewhat similar to this Case 000701 in that both defendants were sentenced at different times–the appellate court concluded that the trial court DID intend joint and several liability. Blackburn said, “The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. It seems glaringly obvious that is what it did here. In this light, there is no double recovery; nor is Jackson entitled to have Blackburn’s restitution obligation credited against his. Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.”

In other words, Blackburn approached it by clarifying what was “glaringly obvious”–that the trial court actually did order joint and several liability.

I think this points out the importance of actually reading the cases that you, as the defense attorney, intend to rely on, AND of actually reading the cases that your opposition cites.

And don’t stop there. Suppose Case 000701 was actually a published opinion, and you wanted to rely on it to get the appellate court in your client’s case to modify the abstract of judgment. If all you cited was the published decision in People v. Case 000701, you MIGHT prevail. But if your opposing party delved deeper, it could respond with an argument discounting the authority of People v. Case 000701, because Case 000701 (arguably) relied on cases that were not authority because they really did not have the same situation as People v. Case 000701. Remember the appellate principle: A case is not authority for propositions not considered. (People v. Chavez (2020) 54 Cal.App.5th 477, 480).

 

Gary Musings, Retroactivity

Gary Musings on Pedro T. and Estrada (no case 000317)

Posted on by Gary McCurdy

Gary Musings,  on Pedro T., because there is no summary for Case 000317

I (Gary) decided not to include a summary on this what I have coded as Case 000317, because it contained very few new nuggets of legal principles, was very fact specific, and the facts were very convoluted. But of SOME possible interest, you may wish to review In re Pedro T. (1994) 8 Cal.4th 1041, which was mentioned in the case I’m not posting.

In essence, the question in Pedro T. was what happens when a defendant commits a new offense (in Pedro’s case, vehicle theft under section 10851) during a time when the penalty had been temporarily increased by the Legislature, with a sunset provision that would revert the available punishment to its previous status in the event the Legislature chose not to extend or remove the sunset provision.

In Pedro’s case, Vehicle Code section 10851 had been amended (before he committed his crime) to increase the range of punishment from a 16-month, 2-year, 3-year triad to a 2-year, 3-year, 4-year triad. He committed his crime under the new triad. During the course of the juvenile court’s efforts to rehabilitate the minor, he reached the limits of the court’s patience and was committed to the California Youth Authority for a term that was based on the increased tier.

While Pedro was serving his time, the sun set and the penalty range reverted to the former lower triad. Because his judgment was not final (he was still under the jurisdiction of the juvenile court, which could modify his disposition at any time), he sought to have his term lowered in keeping with the newly restored lower range, relying on In re Estrada (1965) 63 Cal.2d 740.

You may recall that Estrada firmly established the presumption that, in the absence of clear indication that the Legislature intended otherwise, ameliorative legislation is retroactive to any person whose judgment was not final when it took effect.

Pedro T. points out a very important aspect of Estrada: “The basis of our decision in Estrada was our quest for legislative intent.”

In other words, Estrada does NOT establish a rule that ameliorative provisions apply retroactively to defendants whose judgments are final. Instead, it holds that the courts will assume that the Legislature meant amelioration to apply to any that it could, UNLESS there is something that indicates that the Legislature did NOT intend it to apply retroactively.

So why didn’t the Supreme Court agree with Pedro that he should get the benefit of the reduced tier? “Ordinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest. In the case of a “sunset” provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.” (Pedro T., at p. 1045.)

The court noted the practical effect of a contrary rule. The purpose of increasing the triad was to make the consequences more severe so the average car thief would be discouraged from stealing cars. (I have thoughts running through my mind trying to pinpoint clients I had who refrained from misconduct because they carefully considered the penalty that potentially could be inflicted were they to be caught. I’m even trying to think whether I ever had a client who thought he (or she) might be caught. Nope, can’t think of any. But surly there must be SOME people who were willing to steal cars when the range was 16-2-3 but decided it wasn’t worth it when the penalty rose to 2-3-4. I suppose I simply never met the ones who didn’t do the crime because they didn’t want to do THAT much more time.)

But I digressed. Sorry ’bout that. The practical effect stated by Pedro T. is that a three-year legislative experiment in enhanced penalties might be seriously undermined if those penalties, instead of applying to all offenders during the three years, could be imposed only on those whose convictions became final before the sunset date. A rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term.

All in all, then, the Pedro T. majority (four of the seven justices; there was a dissenting opinion by Justice Arabian, in which Justices Kennard and Mosk concurred) concluded that it was the intent of the Legislature that all persons convicted of committing the crime during the three years of the increased triad were to be punished with that triad in mind, and the reversion to the lower triad was not to be considered retroactive to those whose judgments were not final when the sun set and the penalty lowered to its former self.

Many years ago (2013 and 2014), I wrote a few articles in the Forum (the publication produced by the California Attorneys For Criminal Justice) tracing the development of Estrada. Four cases were decided at that time, with variations on whether the factual scenario supported retroactivity.

In re Daup (1965) 63 Cal.2d 754 had the same result as Estrada. Daup escaped from prison at a time when the penalty for escape without force or violence was a term in prison of not less than one year (meaning the maximum was life). Prior to his trial, the statute was amended and the penalty for that crime was six months to five years in prison. Mr. Daup got the benefit of the reduction.

In re Griffin (1965) 63 Cal.2d 757, reiterated the holding in Estrada, but found that the statute in question was not ameliorative as to the defendant. The defendant had been sentenced to prison for 10 years to life on the current drug offense (Health & Saf. Code, sec. 11351) because he had a prior conviction of a type that triggered that sentence. Before judgment was final, however, the Legislature lowered the term to five years to life, but increased the minimum time that must be served before the inmate could be paroled. Thus, it ameliorated the punishment in some respects, and increased it in others. Since he had already been paroled, application of retroactivity would actually have sent him back to prison because he had been paroled earlier than under the new law. The Court concluded that the overall effect of the change in the law was harsher, and declined to apply it to the defendant. I’d like to say I’ve often wondered whether the result would have been different had he not yet been paroled. But I can’t honestly say I’ve often wondered about it. Maybe just once or twice?

In re Kirk (1965) 63 Cal.2d 761 again upheld the presumption in Estrada, and reached the same result as Estrada. He committed his theft when the felony trigger was $50 (less than would be petty theft, a misdemeanor), and he’d stolen $75. Before his judgment became final, though, the threshold rose to $100. The Supreme Court deemed the change applicable to him, reducing his offense from felony to misdemeanor status.

Note that all four cases arose by way of habeas corpus petitions. Back in the day, the judges did not set felony sentences when probation was not granted. If not granted probation, the person was sentence to imprisonment in the state prison for the term prescribed by law. Assault with a deadly weapon carried a penalty of six months to life. Assault with intent to kill (under section 217, which was repealed decades ago) carried 1 year to 14 years. In Daup’s case, the penalty changed from “a term in prison of not less than one year,” which meant potentially a life term. Then it was changed to six months to five years.

The Adult Authority was the body that decided when a prisoner could be released on parole. When the Determinate Sentence Law (DSL) was enacted in 1976-1977, the terms specified as the tiers were based on the terms that normally had been fixed by the Adult Authority for release on parole. Or at least, the practices were examined and were influential in decisions on the triads.

Did you know that for a short time, until around 1978, second degree murder was assigned a range of 5-6-7 years under the Determinate Sentence Law? If you have a cold case pop up, it’s very important to look at the exact statutes in effect at the time of the offense. Until the early 1980s, life terms could not be ordered to be served consecutively. Who knew, eh? For a few years back in the day, if a defendant on a wobbler was committed to the California Youth Authority, it immediately rendered the offense a misdemeanor. There was no requirement of successful completion. Also, there were limitations on the combined length of determinate terms where consecutive sentences were imposed. Every hear of “double the base term”? Or five-year limitations on prior prison term enhancements?

I have no official source for the following claim, and I have no idea whether it is even remotely true, but I heard that prosecutors and judges approached the Legislature in at least the 1980s and 1990s to do away with as many of the limitations as possible because the DSL was too complicated. Seriously? Anyone read the tax codes and successfully get them simplified? Again, I do NOT know whether that claim has any truth. It may be simply a result of myths and legends generated by and kept alive by defense attorneys lamenting the loss.

And in my admittedly biased opinion, the DSL was nowhere nearly as complex as some of the “hard on crime and criminals” statutes that were enacted in the decades since.

It has been refreshing (again, I’m biased) to see the reasonable move by the Legislature in recent years to restore justice over vengeance (yes, “meow”) to the extent it (and the initiative process as well, I guess) has.

Gary Musings

To Save, Or Not To Save (the client’s file)

Posted on by Gary McCurdy

How This Article Came About.

I was placing a “Gary note” for a summary I was writing on an unpublished opinion filed recently, but won’t be posted on my summary for, well, maybe a couple ‘nother months.  I wasn’t sure whether I was going to use the case as a summary, because it didn’t really constitute a victory, even under my very liberal connotation for the term. But it may be important to trial counsel, and as soon as July 1, 2026. I will probably post the summary when it comes up to the top of the chronological list, but I figured it’s worthy of mention now.

Get On With It, Gary!

It pertains to Penal Code section 1054.9, whose impact is mainly on the process for post-conviction discovery, but it carries a new obligation on either ALL or MANY (aye, that’s the question!) trial court attorneys whose clients are punished for felonies.  (Well, the section used to impose the requirement but only where the defendant has been sentenced to a term of at least 15 years.  That minimum has been eliminated.  But read on.)

Here is Penal Code section 1054.9, subdivision (g), the focus of this article:  

“(g) In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”

I Have To Do WHAT?

Sneak preview: Does the section require trial counsel to retain a copy the client’s file in every single felony case? Or does the requirement extend to only those felony cases in which a defendant was sent to the California Department of Corrections and Rehabilitation, and then, only for the term of incarceration? (Classic state prison.) Or does it also apply to felons sentenced under Realignment to what would formerly have been “prison terms” but are served in local county jails under Penal Code section 1170, subdivision (h)?

Say Again?

Equivocal answer: If the statute is interpreted literally and is determined not to be ambiguous (by interpreting the final sentence of subdivision (g) only in context of its first sentence), then it would seem to apply to only those committed to CDCR (classic state prison). If the section is deemed ambiguous (because the final sentence does not seem to be limited to those mentioned in the first sentence), then the appellate court will have to resolve the ambiguity, most likely by examining the legislative history to determine the Legislature’s intent. But going back to “if the statute is interpreted literally and is determined not to be ambiguous” (by determining that the first sentence has a meaning and the last sentence has a different meaning but they are nonetheless reconcilable), well, then, I’m not sure what the duty is.

WWGD?*

I know what I would do, but that’s only because when I want to be in compliance with a rule, I would much rather do far more than I’m required by the rule to do than to fall short of what it requires. Until it was clarified, I would keep a copy of all my felony clients’ files, whether sent to prison or to county jail or even if just granted probation with no time ordered as a condition. That is not a recommendation. That is merely a recitation of what I would do.

That’s The Spirit!

The spirit behind subdivision (g) is to make it easy for a defendant to get some sort of relief from a judgment imposed some time in the past. One can never predict what legislation will be enacted down the road that might favor the client. In the 1980s and maybe especially the 1990s, who would have imagined that a felon denied probation could at worst be sentenced to local confinement, and even then have a split sentence (maybe not having to serve the whole period ordered)? Who would have predicted the Three Strikes Reform Act of 2012? Who would have predicted Proposition 47? Who would have dreamed that a getaway driver could no longer be considered guilty of felony murder except under seriously culpable circumstances?

Defense attorneys may have dreamed of those things (and obviously, some defense-minded folks DID, in order to get the ball rolling on the amelioration). But the era was such that it made them seem like pipe dreams. (Whatever a pipe dream is.)

And many’s the time trial counsel has had to reconstruct “what happened back then” in order to demonstrate that the client is eligible for relief. Having access to trial counsel’s file from years earlier can be critical for new counsel seeking to get some new ameliorative benefit for the client, or even to revisit the basis of the conviction under its law at that time, because new evidence has come to light. Think of the incidents we have all read about from time to time, where a previously-respected forensic analyst–or even the employing lab–is discovered to have been perhaps less reliable than warranted at the time of the conviction. Or where questionable practices of police agencies came to light years later. It doesn’t necessarily take new legislation to trigger a need for the defendant to get a thorough review of the evidence on which the conviction was based long ago.

But Don’t We Already?

There is likely already a duty for the attorney to maintain the client’s file, because the operative word is “the client’s file.” Unlike the medical profession, where apparently the medical file belongs to the doctor, not the patient, the files attorneys keep belong to the clients, at least to the extent that the file contains information pertinent to the client’s cause. Maybe it doesn’t include administrative materials related to the case but irrelevant to the merits of the case, I don’t know. I just know that if a client ever asks for his or her file, the attorney is required to provide everything related to the client’s case that might assist the client in further proceedings.

Here’s what the California Rules of Professional Conduct, rule 1.16(e)(1) says, upon the termination of a representation for any reason: Subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.

Permissive vs. Directory.

But section 1065.9 makes it a statutory duty in whatever cases it applies to, and even a little more. That is, under the State Bar professional responsibility approach, the attorney has to turn over to the client the files on the client’s request. The attorney is permitted to keep a copy at the attorney’s expense (implying that the attorney cannot charge the client for the handing off of the file, and if the attorney wants to make a copy, that’ll be at the attorney’s expense), but by “permitted,” it implies “not required” to make a copy. Under section 1065.9, if the client falls into the class it applies to, the attorney MUST KEEP A COPY. And in the format specified.

Tell Me More.

Though the summary discusses the discovery process and review of the court’s denial, there isn’t much to elucidate the extent of counsel’s obligation.  The appellate case concluded that the denial of discovery under section 1054.9 was not an appealable order, but the denial may be reviewed by petition for writ of mandamus.  It exercised its discretion to treat the appeal as a petition for writ of mandate, and proceeded to affirm the action taken (i.e., denial) by the lower court.  So it didn’t touch on the questions I have about the section.

To me, subdivision (g) is a bit ambiguous, because the first sentence refers trial counsel having to retain a copy of their client’s files for the term of that defendant’s imprisonment in cases resulting in a CDCR prison sentence. But the last sentence could be read as requiring counsel to retain physical files and digital color copies of all evidence in ALL felony convictions, with no mention of a limitation to those where the client has been committed to CDCR.

Looking At Some Legislative Analyses.

Here’s how the Legislative Counsel’s Digest expresses it: “The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026, that result in a sentence of incarceration in the Department of Corrections and Rehabilitation to retain digital color copies of every item in the file.”

First There Was A Mountain, Then ….

But the final Assembly Floor Analysis dated 9/12/2025 states, in part, under “Major Provisions: 4) Clarified that a defendant’s trial counsel maintain a copy of a former client’s case file for any felony for which the defendant was sentenced to state prison or county jail.” I don’t see a reference to county jail in the first portion of the subdivision, only those to CDCR, which is state prison, not county jail. Does that sentence then contemplate that the final sentence that ” … trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions…”?

On page 2 of that Assembly Floor Analysis dated 9/12/2025, under “According to the Author,” it states, “AB 1036 seeks to address these inequities by expanding access to post-conviction discovery to all individuals convicted of felonies with sentences of one year or more. It eliminates the burdensome requirement of first seeking discovery from trial counsel and broadens the definition of “discovery materials” to include exculpatory and mitigating evidence and jury selection notes. Additionally, this bill ensures transparency and accountability by requiring trial counsel to maintain digital color copies of case files, preventing the loss of crucial records.” There is no reference or limitation to sentences to the California Department of Corrections and Rehabilitation. Once Realignment was enacted effective for all sentenced on or after 10/1/2011 (shifting incarceration on low level felonies to local county facilities instead of state prison), many felony sentences are served in county jails, not in the custody of the CDCR.

Then There Was No Mountain ….

The Senate Floor Analysis of 9/2/2025 characterizes it as “8) Clarifies that a defendant’s trial counsel shall maintain a copy of a former client’s case file for any felony conviction resulting in incarceration in state prison. Digital copies must be preserved in color. 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.” So the Senate analysis does not refer to any county jail sentence, and it seems to read into the last sentence that the duty on trial counsel is to retain the files only for those convictions resulting in incarceration in state prison, and does not seem as expansive to ALL convictions as the last sentence of subdivision (g) might be interpreted. I don’t have an answer.

In The Big Inning ….

According to the first Bill Analysis by the Assembly Public Safety Committee, submitted 3/31/2025, this bill (as it was first introduced, before amendments) “4) Clarifies that a defendant’s trial counsel maintain a copy of a former client’s case file for any felony for which the defendant was sentenced for up to [sic] one year. 5) States, beginning January 1, 2026, the electronic copies are sufficient only if every item in the file is digitally copied in color and preserved.”

On pages 4 and 5, the author states, “Finally, this bill proposes to require criminal defense attorneys to retain records for any felony resulting in a sentence of a year or more [sic] for the term of the defendant’s incarceration. Over the past ten years, California has enacted several post-conviction remedies, including the opportunity for re-sentencing if a person is the defendant suffered racial bias during their case, suffered a sentence that is disproportionately harsh giving the facts, was under the age of 18 at the time of sentencing, where it is in the interests of justice, and re-sentencing in gang cases where there was insufficient evidence of gang involvement. (See Pen. Code, secs. 1109, 1172.1, 1385, and 1437.) Given the plethora of new opportunities for post-conviction relief, this bill requires an opportunity for post-conviction discovery beyond just Brady material at the time of trial. For instance, the Racial Justice Act (Pen. Code, sec. 1437) confronts the possibility that a defendant suffered racial bias in their charge, conviction, or sentence. Therefore, something more than just Brady material may be necessary to demonstrate the bias.

Darwin and Evolution At Work?

So it seems that the bill contemplated originally that trial counsel retain copies of the file if the client was sentenced to one year or more. When the bill was introduced, it read “for a felony resulting in a sentence of one year of incarceration or more.” That was subsequently amended to “incarceration in the Department of Corrections and Rehabilitation,” which suggests the subdivision may not apply to anyone sentenced on a felony to incarceration in county jail under section 1170(h) (commonly referred to as “under realignment”) no matter how long the term. In the Senate Public Safety Committee analysis of 6/30/2025, it does state at page 4, “This bill allows for post-conviction discovery in any felony case resulting in incarceration in state prison ….”  So at THAT stage, the author of the analysis had “state prison” in mind as an important eligibility facrtor.

The Long And The Short And The Tall.

The long and the short of it is, I don’t know what the answer is. I see what the statute says in subdivision (g), but I get mixed senses when I read the legislative analyses. Does it apply to ONLY those whose sentences are served in facilities under the jurisdiction of the Department of Corrections and Rehabilitation?

That seems to be the clarity in the first sentence of section 1054.9(g), and the reference to CDCR first appeared in the amended version passed by the Senate on 8/29/2026. Or does it apply to ALL felony convictions (as of July 1, 2026), the language in the last sentence? Does it NOT apply to felons whose terms are served in the local county jails under Realignment? Is there a legitimate rationale for providing the requirement if a defendant is sentenced to state prison for two years (state prisons falling under the oversight of the California Department of Corrections and Rehabilitation) but not if a defendant was sentenced to, say, eight years in the county jail for a different felony governed by section 1170, subdivision (h)?

If It Is A Distinction With A Difference …

For answers to these questions and more, you probably need to ask someone else, for I’m certainly confused. If this is a question that needs a briefable answer, you probably should obtain a legislative history fully researched by and  available through any of the reputable legislative research firms in the state. I have my favorite, but I’m not going to identify it here in the blog, because I have to confess that it’s my favorite because I’m a friend of its founders and have used the firm’s services over the years with satisfaction. But I have not used any of its competitors to see whether one is any better than another. I have my bias, but I’m not educated enough to validate it. The companies that do provide legislative intent research have access to a huge amount of documents that are not posted on the Legislature’s website. Or at least, anywhere that I can find it all.

 

*”What Would Gary Do?”

 

 

Abstracts and Minutes, Gary Musings

The Abstract Is Concrete

Posted on by Gary McCurdy

Some Words About Abstracts Of Judgment And Minute Orders

I run across many, many cases where the abstracts of judgment and minute orders are incorrect in ways that could harm the defendants’ interests. CDCR and parole authorities are going to accept what they see on the abstract of judgment as a true and accurate account. Errors might affect an inmate’s housing and job assignments and may even result in denial of the proper calculation for good behavior and work credits, not to mention result in depletion of inmate funds for the repaying of debts no longer or never owed.  And the abstract of judgment is part of the record of conviction, which may be relied on when the prosecution decides to seek enhancements to the range available on the current offense because the defendant has been convicted of certain types of crimes in the past.  As well as when the court or jury decides whether the allegation is true.

I personally believe attorneys should obtain a copy of the abstract of judgment and minute orders–because minute orders, too, have been seen to contain errors, and they, too, can be used to guide the decisions that affect inmates–and check out their accuracy immediately. Where wrong, it should be brought to the attention of the proper person or court to get the correction.  

I do recognize that the paperwork is prepared after the sentencing hearing, so obtaining it would require a little post-judgment effort.  But errors are not uncommon.  As of the writing of this post, I have collected and summarized just under 860 unpublished opinions that have provided some sort of relief to the defendant.  In nearly 140 of those, the abstract or minute order contained information that not only was incorrect, it made the defendant’s plight appear worse than it was.  Reflecting fines due that in fact the court waived.  Misstating the crime as kidnapping when it was actually false imprisonment.  Adding years to the sentence over what was imposed.  Shorting the amount of credit for time served ordered by the court.

I’m not suggesting these errors were intentional.  They are simply a result of human error in a situation where the clerk must process tons of paperwork, often by marking a checkbox, invariably several hours or maybe days after the event took place, mixed in with several other similar events conducted on the same day.  I also recognize that the 860 “victory” cases represent roughly 38% of the total criminal cases I have looked at as of this writing, but that still reflects that about 6% of the criminal cases have abstracts of judgment or minute orders that were incorrect in a way that adversely impacted the defendant.

As an example of how something can go terribly wrong, suppose a defendant was convicted years ago of violating Penal Code section 245, which (at the time in my hypothetical) could be violated by assaulting a person EITHER by use of a deadly weapon OR by means likely to cause great bodily harm, because the then-wording of section 245 started out, “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury,” rather than having the two methods separated in different parts of the section as the section now reads.

Decades later, the defendant commits a robbery, only his second offense ever. If the abstract of judgment erroneously indicates that his prior violation of section 245 was by use of a deadly weapon–rather than by means of force, as it actually was (in my hypothetical)–it would appear that the defendant would have a strike, resulting in a doubled sentence. Or if the defendant’s record was a bit worse and that old conviction is seen to count toward a total of two prior strikes, he’s possibly looking at a minimum of 25 years to life, depending on the nature of the new offense. All because of an incorrect abstract of judgment “proving” that he had that as a strike. Isn’t avoiding that risk worth securing a correct abstract of judgment and related minute orders? Okay, I see I’ve bent the planks in my soapbox, so I’ll dismount, for now.

Stop the Presses! Back up on the soapbox! Since the original drafting of this  a few months ago (when I was prototyping the website on my own while the real deal was being constructed by my pro), I ran across an unpublished case (Case 000300, so it will be a while before you see that summary) where the abstract of judgment incorrectly stated the defendant had been convicted of a serious or violent felony! The appellate court has ordered its correction, but my, my! That mistake might have resulted in all sorts of problems should the defendant ever be convicted of yet another crime in the future. Sure, I’m certain there are those who think people get what they deserve and shouldn’t complain when their poor judgment results in worse punishment than the law permits. That’s not how I feel, however. There’s enough injustice out there already, and the Legislature has spoken on what the punishment may be. There’s no call for someone to be subjected to beyond what the law permits. Okay, I’m done for now. I’ve worn out the soapbox so much it couldn’t qualify for a derby.  Back to summarizing.

 

Gary Musings

That Which Goes Awry 6/11/2026

Posted on by Gary McCurdy

What I Don’t Know Could Fill The Universe.

I recognize that I tend to be somewhat of a snoot when it comes to the English language. I’m not an expert in it, by any means, and frankly, short of probably being able to call something a noun or a verb or a preposition or an article, I do not have a handle on the grammarian’s patois. Restrictive, nonrestrictive, antecedent, dependent, independent,subordinate, appositive, absolute, and so on. I think I generally know how to use English, but I couldn’t tell you (with any confidence) what the names of its parts are. I don’t even qualify for Potter Stewart’s “I know it when I see it.” Maybe I’m more of a “Smoke’em if you got’em” kinda guy. (Though I don’t smoke, whether or not I got’em.) I know that old-fashioned watches kept time by spring-action moving various gears, but I couldn’t tell you the name of any of the parts.

Oxfords or Loafers, Anyone?

But I do recognize that I definitely have some biases on a few of those earth-shaking controversies. I like, for example, to set off by a comma the penultimate item in a series. Who doesn’t love a good Oxford comma, right? “John, Mary and I went to the park.” “John, Mary, and I went to the park.” Those two sentences could mean exactly the same thing, or they could mean two different things. In the first sentence, either two or three people went to the park. Either I told John that Mary and I went to the park, or all three of us went to the park. In the second sentence, most of the time it would mean that all three of us went to the park. (A possible exception: If I’m speaking to John AND Mary, then only I went to the park. But who comes up to two people and say, “John comma Mary comma I went to the park”? More likely, “Hey kids, I went to the park.”)

The REAL Battle of the Century?

Anyway, I know there are raging defenses from both sides on it. I remember a popular trend in the 1950s or 1960s toward dropping that last comma. I resisted. (Fortunately, my English teachers were rather meh about it all, so I wasn’t dinged for going up the flow instead of with it.) Over the years, I have found more instances of ambiguity in sentences without the Oxford comma than in those with it.

I Like To Think I’m Simply, Well, Anchored.

Maybe that’s just a shortcoming of my own thought processes. I admit I tend to cringe when I hear “She graduated high school in 2015.” (A long way from the original usage, “She was graduated from high school in [an 18th or 19th century date].) I confess, though, that I never adopted the “was,” and tend to say “She graduated from high school.” There’s no more justification for me to cringe at the evolution dropping the “from” than there was for my grandparents (or great-grandparents) to cringe at the dropping of the “was.” (I believe the original idea was that the institution bestowed the graduation by conferring a degree, so it did the graduating, and the person was graduated from the school by the institution.)

Why Do They Call The End The Start?

Then again, disclosure here: For a long time, I never really thought about the meaning of “Commencement” at graduation. For years (I won’t say whether it was years after graduating from high school or from law school), I blithely associated “Commencement ceremonies” as meaning the end of the road. I’m not sure what made me realize that nope, it’s the beginning of a new life (or some such positive bromide).

And Now Back To Our Regular Programming.

Which brings me to That Which goes awry. I’ve mentioned elsewhere on this site that I do a lot of copying and pasting from opinions, and that I reorganize and even substitute some of the words. I intend to convey the same principle, but because I am not presenting the entire opinion, sometimes I have to tinker to give some context, or maybe I’ll slap a couple of sentences together because they share a significance but in the opinion they were several paragraphs apart. One of the things I’ve been doing more and more is changing what I perceive to be the use of the word “which” where I think the word “that” is more formally the correct term.

Anyone Darwinian?

I do keep in mind that our language evolves. Thank goodness for that. I remember reciting a passage from Chaucer’s Canterbury Tales as an English assignment. I did not have the luxury of listening to a digital recording of a native 14th century English speaker, so I’m guessing my accent was a tad off, but my goodness, I had to trust my English teacher that it was written in English, because you couldn’t prove it by me. I suppose it’s like speaking any foreign language when you don’t know how, but I’m sure I sprayed a few students in the front row as I spat out the words the best I could. So amen to change, right?

Me, A Culpa? Never!

Keeping in mind my opening confession of snootiness, I do believe that the that/which enigma has not yet been formally accepted by most grammarians to consider that the two words are easily interchangeable and mean the same thing (or signal the same thing to the reader, perhaps).

Ding Dong, The Witch Is … Oh, Wait! Wrong Song!

Generally speaking, “which” will introduce a clause that the sentence could do without and still have meaning. “The manual, which comes in paper and electronic format, tells me how to assemble the chair.” I could write that as “The manual tells me how to assemble the chair,” and that’s a perfectly fine sentence. The “which” clause adds interesting and related information, but it is not the answer to “What should I read to learn how to assemble the chair?”

That That Is, Is; That That Is Not, Is Not That Is. (Or IS That?)

On the other hand, “that” introduces something that is vital to the sentence. “The book that says “This is how to assemble the chair” is the droid you’re looking for.” If I take out the “that” clause, it says, “The book is the droid you are looking for.” If my question is “What should I read to learn how to assemble the chair?” I’m not going to learn much without the “that” clause.

You’ve Got To Punc-Tu-U-Ate The Positive (Oh Wait, Another Wrong Song!)

And normally, a “which” clause is going to be set off by punctuation. (Not to be confused with Santa Claus, who sets off with a team of reindeer.) If it is in the middle of the sentence, a pair of commas will usually do the trick. “The book, which has a yellow cover, is on the table.” Or a period could work, depending on location. “Look on the table for the book, which has a yellow cover.”

Accept Except?

There are, of course, many times when “which” is appropriate in slightly other contexts. “I don’t know which book to pick up.” “That which is the most reliable is often the most overlooked.” Neither of those sentences would sound good substituting “that” for “which.”  There are probably a few other exceptions, too.

Everywhere I Go Egos.

I think it is my ego that instigated the writing of this article. When I see “which” where I think “that” ought to do, I change the language used by the courts in many opinions–in fact, some of the language appears in quotations from cases cited by the opinion as seminal authority–because I don’t want to sound like I don’t know when to use “which” and when to use “that.” Fully recognizing that usage is more of a guideline than an actual law, of course. And I don’t mean to cast disrespect on the courts that have chosen to use “which” where I think “that” is the more correct word. As the declarers of the law, what they say IS the law, right? So who am I to nitpick on a point on which (see, there’s a place where which works and that doesn’t) it’s probably just a matter of time before I’m wrong, or I’m right AND they’re right.

Why Stop With The Teeth?

I do have authority supporting my view, of course. (Never go armed without authority. Especially when sometimes it’s easy to find authority supporting either side of opposing and incompatible views.) From oldest to most recent of the weapons in my writing arsenal:

Guide to Modern English
Corbin, Perrin
Pub by Scott, Foresman and Company
1960

A Dictionary of Modern English Usage
H.H. Fowler, Second edition
Pub by Oxford at the Clarendon Press
1965

Line by Line
Clair Kehrwald Cook
Pub by Houghton Mifflin Company
1985

Woe Is I
Patricia T. O’Conner
Pub by Riverhead Books, New York
1996

Garner’s Modern American Usage
Bryan A. Garner, Third Edition
Pub by Oxford University Press
2009

The Internet
2026

And with that, I’m back to my which hunt!

 

Gary Musings, Trivia by Gary

Trivia by Gary 6/4/2026

Posted on by Gary McCurdy

Trivia by Gary June 4, 2026

I’m pretty sure most of us know that a person who serves any time in jail up through sentencing gets credit for that pre-sentence time, assuming it’s attibutable to the reason the person is in jail. Prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971.

It was originally to be applied prospectively only, but that was held to violate equal protection guarantees.

Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released.

Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.”

Alas, that restriction is nowhere to be found today.

Duty of counsel, Gary Musings

Case 000015

Posted on by Gary McCurdy

Error and/or relief

You might want to draw a cuppa joe for this one.  It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients.  The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me.  “Gary Musings.”

This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already).

And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation.

What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding:

Counsel has a duty to turn over client’s file to client.

Authority:

State Bar proposed opinion 19-0004 (duty to retain files while client is alive)

State Bar Rules of Professional Conduct rule 1.16

Second Holding:

As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.

Authority:

PEN 1054.9

Barnett v. Superior Court (2010) 50 Cal.4th 890

People v. Superior Court (Morales) (2017) 2 Cal.5th 523

Satele v. Superior Court (2019) 7 Cal.5th 852

Third Holding:

Review of nonappealable order is by petition for writ of mandate.

Authority:

In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]

Fourth Holding:

The appellate Court can treat the appellate opening brief as a petition for writ of mandate.

Authority:

Olson v. Cory (1983) 35 Cal.3d 390, 401

Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222

Fifth Holding:

Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.

Authority:

Legislative history, AB 1987 in 2018

Sixth Holding:

The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.

Authority:

Rose v. State Bar (1989) 49 Cal.3d 646, 653–655

White v. Molfetta (2021) 64 Cal.App.5th 628

Seventh Holding:

Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Authority:

PEN 1054.9

Eighth Holding-Gary Musings:

Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”  I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”

That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.”

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.”

Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.

Authority:

Not much of one, Just Gary’s Brain

Gary Musings

Welcome Post

Posted on by Gary McCurdy

Welcome to my case summaries! I’m reviewing California Court of Appeal opinions that are NOT published, and pulling out of them gems of wisdom from any case in which the court has provided some level of relief to a defendant (even if so little as getting an abstract of judgment to properly reflect the sentence or the crimes of conviction).  On occasion I have included a not-a-win but something struck me about the case that caused me to decide to include it anyway.  

And once in a while, I post a “Gary Musing” that consists of my own thoughts du jour.  

The site is searchable through the WordPress standard search function, through categories, and through tags.  It is also set up so you can do the RSS thing if you’re set up for it.  

(I’ve seen it, I believe it exists, I actually have it RSS’ing on my own devices, but I’m not sophisticated enough to explain to someone else what it is.  What I do know is that I have an RSS app on my iPhone, and I have set it to notify me when I have released a new post (summary or Gary Musing).  Daily I get up to 10 new summaries showing up on my phone, and I can read them.  Yay!)

Because the courts generally post their opinions Monday through Friday, I plan to post case summaries only Monday through Friday.  There will be a lag of about a week, to give me a little buffer of time in the event I’m offline for a few days.

I’m open to suggestions on categories and tags.  For that matter, I’m open to any thoughts designed to improve the usefulness of my site.  

Simply email your thoughts to me.  In keeping with my privacy statement, I will do nothing with your email address beyond using it to respond to you if a response is called for.  Since it would be sent by your email program to my email program, it will not appear or be stored on this website, because it will never pass through this website.

What You’ll Find in These Summaries

As I’ve said more elaborately elsewhere on this site, the unpublished opinions cannot be cited, but they have to base their decisions on cases that HAVE been published. So for each tidbit I have extracted from the opinion, I have listed the citable authority relied on by the Court of Appeal. Because the opinion cannot be cited as authority, my focus is not so much on the reasoning behind the result.

This means I likely will not recite all the facts that show, for instance, why the officers did not have probable cause for a warrantless search.  Instead, I will pull out principles that might be useful in ANY search and seizure appeal, or even in any criminal appeal no matter the issue.  (Of course, my perspective is from the appellate side of the judgment, but the principles often discuss the “rules of the road,” so to speak, that the trial courts have to navigate.  So this site is not just for appellate attorneys.)

For example, from an appellate attorney’s perspective, what is the standard of review? When does the appellate court defer to the reasoning of the superior court? When does the appellate court conduct independent review? De novo review? Is this Watson error or Chapman error (important in deciding whether an acknowledged error results in relief or is found to not have made a difference, so no harm, no foul)? When is a kill zone theory appropriate? Did the trial court engage in improper factfinding at the prima facie stage? What was the trial court permitted to consider at that stage? When does the exercise of discretion–or lack of same–constitute abuse?

From a trial attorney’s perspective, the earlier principles may be nice to know, but the hope is that your case never needs to be appealed, right? Well, the summaries also list principles of law you need to know in the trial court, such as the elements a court must consider when decide whether mental health diversion is appropriate, or whether a prior conviction still qualifies as a strike or prior serious felony in light of AB 333’s changes to criminal gang activity law, or whether the court properly considered your client’s recall petition at the prima facie stage, or whether the court is required to sustain your objection to a DA’s exercise of a peremptory challenge, given CCP 231.7, or whether section 654 applies (and an understanding that the judge once again has a choice on WHICH count is to be punished and which is to be stayed–no longer must the court impose punishment on only one with the greatest sentence and stay the other), or whether the court forgot to update credits, etc.

In other words, these summaries can provide guidance at both the trial court and the appellate level stages.

Not Your Typical Summaries

Some summaries will lay out the context in which the issue arises. Maybe include some background on laws regarding the recall of the sentence in light of changes in the definitions of murder. Or how enhancements or selection of sentencing scheme may have to be reexamined in light of changes in the elements required for conduct to be criminal (such as whether a strike conviction for a gang offense is still a valid strike in light of changes in the gang offense statute). And so on.

So these summaries are likely different from what you might be used to reading in legal newspapers that summarize published opinions, or the summaries you might run across in publications by various defense-oriented organizations. I’m less interested in pointing out the reason the court ruled the way it did, and more interested in what “universal” rules it applied in reaching its result. (The same principles are cited in the unpublished decisions that do NOT result in relief, but I can’t read and summarize them all!)

Why Universal Rules, Not Case-Specific Facts?

Why that focus?

The value is there for both appellate attorneys and trial attorneys.

Appeals
On appeal, every appellate brief has to inform the appellate court of the applicable rules! And since it is expected, it is important to know the options so you can intelligently argue in favor of the option that most favors your client or, if there is only one option, how YOUR client is entitled to win even given that principle. For example, if you know that there was no objection in the trial court to preserve what would otherwise be a good issue (thus subjecting it to not being even considered by the court, as it was forfeited for lack of timely objection), then you can frame your argument to demonstrate how an objection would have been futile, or how the issue is a straight question of law that the court can consider despite the lack of objection, or why, in your client’s case, the court should exercise its discretion and treat the issue anyway (which it has the right to do). And you may find authority in the PUBLISHED cases cited in the unpublished cases,

If you can characterize an error as a violation of a federal constitutional right, then it is likely that the Chapman standard applies (reversal unless the error is harmless beyond a reasonable doubt). If it is argued as a state error, then prejudice will be assessed under Watson–no reversal unless, but for the error, there is a reasonable probability that there would have been an outcome more favorable to the defense. So whatever your error is, you want to persuade the court–based on the law, of course, not just on desire–that the Chapman standard applies, not Watson. Or if you can’t, then you need to actively demonstrate just how a better result for your client would likely have been the outcome had the error not been committed. Courts of Appeal are seldom swayed by bald statements “and my client was prejudiced by the error.” Maybe the citations following the summaries on prejudice will give you the info you need to make your best case for a suitable finding of prejudice.

Trial court
The summaries show you the types of errors commonly made in the trial courts. Most errors are considered harmless. After all, if Officer A testifies as to what Witness B said, but then Witness B is called to the stand and says the same thing, the error in overruling counsel’s hearsay objection to Officer A’s testimony is harmless, right? Unless, of course, there is something more to it than just getting a statement in. If Officer A adds, “and I think she was telling the truth,” then maybe that is an error unto itself that is NOT harmless. But it won’t even be considered on appeal if your client is convicted and you did not object to it timely and on the proper grounds.

Since I’m generally not relating information from the unpublished cases that affirmed the conviction entirely, trial counsel may not get a complete sense of how often convictions are affirmed that had arguable issues that the courts refuse to even consider because there was no objection. You kinda have to take my word for it, if you’re not getting that sense from the published cases. But my summaries of the unpublished “wins” should alert trial counsel to possibilities for objections.

Yes, there are a FEW cases in which the appellate courts have considered forfeited issues, usually with a phrase something like “to forestall unnecessary ineffective assistance of counsel claims.” Much to my own surprise, I don’t have any statistics on whether appellate courts are more likely to dispose of a forfeited issue by treating it on the merits and ruling against the issue, but I know I have seen many such instances. And my feeling (which I admit may be tainted by my defense attorney bent) is that those “we’ll treat it anyway” instances occur far more frequently when the court then rules against the issue than when a court treats the forfeited issue and grants relief on account of it.

I welcome being set straight on that if my bias has led me astray.

But it all goes back to trial counsel. If there is a proper objection, then at least the issue will be considered if the appellate attorney presents it to the court.

And the summaries certainly should remind trial counsel that credit for time served is important. When I was in trial practice, I treated credit for time served very seriously. Though I have never been confined, I know it would matter to me whether I was eligible for release in 1 day or 2 days or 20 days or 60 days. I wouldn’t want to be kept an extra day. Not even if it was rainy outside.

Also, the summaries should alert the trial attorneys to the importance of checking the written abstracts of judgment, minutes, and probation orders. Checking my stats recently, I determined that around 20% of the case summaries in which there was a win had errors in the abstracts, minutes, and/or probation orders, and those errors painted a worse picture of the defendants’ plights. Sometimes characterizing a straight life term to an LWOP. Reflecting a $10,000 fine that wasn’t ordered. Shorting thousands of days of credit for time served. Recognizing that the 20% was of only the wins, I also computed that roughly 5% of all the appellate criminal opinions contained errors in the abstracts and minutes. And that was of only cases on appeal. I think it’s fair to conclude that the percentage is probably of all criminal cases, whether or not appealed. Trial counsel is the only one who can spot those unappealed cases and get them corrected by the trial court.

Using Citations as a Research Springboard

While you cannot cite the unpublished opinion itself, you can review the citations I have listed below the discussion of the lack of objection or prejudice (or whatever). While not universally true, it is not unusual for the published opinion the court relied on to have a factual situation somewhat like the case it is deciding. Maybe that citation will be a springboard for you to find one or more cases very close to your own. The closer your research relies on cases similar to your own, the harder it is for the opposition to argue that the cited case is so distinguishable as to be not helpful.

How to Read These Summaries

My plan is to have a brief statement of context (a statement of the error and relief granted) at the beginning of each post, but I hope you consider it to be simply the context in which the principles were announced, and that you read the full summary to see those “rules” that the courts generally follow to guide their analyses. Don’t look at a summary that mentions burglary and ignore it because your case is a drug offense. The summary itself may have little to do with the law of burglary, and instead it will contain “binding” maxims that you’ll need to be aware of (and address) in your briefing or at trial, whether your case is a burglary or a drug sale or a homicide or ….

Want the Full Opinion?

Remember also that, if you are an attorney, I will, on your request, send you the full unpublished decision to the email address you have showing on the state bar website. (Unless, of course, there is an overwhelming demand for this service, in which case I’d probably have to rescind the offer.)

Happy Hunting!

Gary