Category Archives: Sentencing

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

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

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

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

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

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

Sentencing, Statutory interpretation

Case 001045

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to decline to award conduct credit on two of the counts, because their offenses were not ineligible for conduct credit at the time they were committed. Further, it was error to issue a no-visitation order on behalf of a person who is no longer a minor.

First Holding:

As a result of amendments to the One Strike Law in 2006 (section 667.61) persons serving an indeterminate sentence under that section are not entitled to credit for time served beyond the actual days they were in custody. There is no reduction for good behavior or performing work.

Although section 667.61 as amended makes no mention of conduct credit, the amendment deleted a previous reference that limited the conduct credit to 15% of the sentence imposed. The legislative history does make it abundantly clear that the intent was to eliminate conduct credit for such persons.

Authority:

Penal Code section 667.61

People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268

People v. Adams (2018) 28 Cal.App.5th 170, 182

Second Holding:

The amendment cannot be applied retroactively. Both the federal and the California Constitutions prohibit ex post facto laws. The federal and California ex post facto clauses do not just bar retroactively increased prison terms. They also prohibit any law that retroactively disadvantages the offender by increasing the punishment for crimes committed before the law’s enactment.

Consequently, the ex post facto clauses prohibit any law that constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. As it is unclear whether the offenses described in two of the counts were committed before or after the amendment’s effective z People (September 20, 2006, as urgency legislation), conduct credit cannot be denied on those counts.

Authority:

U.S. Const., art. I, sec. 10, cl. 1

Cal. Const., art. I, sec. 9

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Weaver v. Graham (1981) 450 U.S. 24, 35-36

People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [agreeing that a change in law ending the defendant’s ability to earn good conduct credit violated the proscription against ex post facto laws]

Third Holding:

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. Consequently, when the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261 [Verdicts cannot be deemed sufficient to establish the z People of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurred on or after the z People of the punishment’s enactment]

Fourth Holding:

Under section 1202.5, if a defendant is sentenced to prison for committing a lewd act under section 288, and the victim is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.

As this section authorizes prohibitions against visitation with a child victim, it has been interpreted to apply only to victims who are under the age of 18 at the time of the contemplated visitation. Here, the victim was in her 20s at the time of sentencing, and the court therefore lacked authority to include her in the no-visitation order.

Authority:

PEN 1202.05

People v. Scott (2012) 203 Cal.App.4th 1303, 1323

Eighth Amendment, Equal protection, Plea bargains, Probation Parole PRCS, Sentencing

Case 001044

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 16 months in jail as a condition of probation. The matter must be remanded for resentencing, and for the court to determine the issue of the amount of the restitution fine in light of Kopp.

First Holding:

The trial court imposed a jail term of 16 months as a condition of probation because he had missed his appointment with his probation officer and failed to appear at the sentencing hearing. However, section 19.2 provides that, except in situations not here relevant, in no case shall any person sentenced to confinement in a county or city jail, as a condition of probation upon conviction of either a felony or a misdemeanor, be committed for a period in excess of one year.

Authority:

PEN 19.2

Second Holding:

Although Bailey held that the one-year limit may be waived by the defendant, Bailey is distinguishable because the defendant Bailey entered a knowing and intelligent waiver. There is no evidence here that the defendant was informed of the 12-month limit under section 19.2, and his agreement to the longer term was therefore not a knowing and intelligent waiver.

Authority:

People v. Bailey (1983) 140 Cal.App.3d 828, 831

People v. Arnold (2004) 33 Cal.4th 294, 308 [regarding waiver of credit for time served, the gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5]

People v. Sivongxxay (2017) 3 Cal.5th 151, 166 [criminal defendant’s waiver of right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it]

Third Holding:

On remand, the defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state constitutions. As to ancillary costs, if requested by the defendat, the trial court shall consider his inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1), allowing the parties to present any relevant evidence or argument on the matter.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 30-31