Sentencing

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

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

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Discretion, Sentencing, Sufficiency of and substantial evidence

Case 000657

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

The court erred in denying the medically eligible defendant’s petition for compassionate release under section 1172.2, because there was insufficient evidence to support the court’s finding that there was an unreasonable risk that the defendant would commit a super strike.

First Holding:

The Penal Code imposes a presumption favoring compassionate release for medically-eligible individuals and, as to the risk of re-offense, requires an assessment not of whether a new crime would be theoretically possible, but whether there would be an unreasonable risk of a super strike as defined by the law. On this record, we conclude there is insufficient evidence of an unreasonable risk that defendant would commit a super strike if granted compassionate release. Accordingly, we will reverse the trial court’s order denying the petition for compassionate release and direct the trial court to recall defendant’s sentence in accordance with section 1172.2.

Authority:

PEN 1172.2

Second Holding:

A superior court abuses its discretion when the factual findings essential to its decision lack evidentiary support. The superior court’s factual findings are reviewed for substantial evidence.

Authority:

People v. Cluff (2001) 87 Cal.App.4th 991, 998

In re White (2020) 9 Cal.5th 455, 470

Third Holding:

Section 1172.2 authorizes a trial court to recall the sentence of an incarcerated person who is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living. If the trial court finds that an incarcerated person satisfies this criterion, the statute establishes a presumption favoring recall and resentencing that may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision section 1170.18(c), based on the incarcerated person’s current physical and mental condition.

Authority:

PEN 1172.2(b)(2)

Fourth Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony offense punishable by life imprisonment or death, and certain sexually violent offenses.

Authority:

PEN 1170.18(c)

Fifth Holding:

After reviewing the evidence of the physical and mental condition of the defendant, the court concluded that there was insufficient evidence to support the finding that he was capable of committing a super strike. The appellate court relied on Lewis, a case in which it was held to be an abuse of discretion to deny compassionate release on evidence that showed that the defendant perhaps had the capacity to commit a super strike, but that did not necessarily establish an unreasonable risk that he would commit such an offense.

Authority:

People v. Lewis (2024) 101 Cal.App.5th 401, 407-409

Amelioration, Fines and fees, Sentencing

Case 000656

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the restitution fine, now older than 10 years, must be vacated.

Holding:

Under section 1465.9(d), the restitution fine must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)

Appellate Principles, Probation Parole PRCS, Sentencing

Case 000655

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

The probation condition ordering treatment but permitting the probation officer to decide whether such treatment should be residential was an improper delegation of the court’s authority.

First Holding:

Under the state constitution, judicial powers may not be delegated to nonjudicial officers. Allowing the probation officer discretion to decide whether the probationer had to attend a residential program, as opposed to outpatient treatment, improperly delegated judicial authority in violation of the separation of powers doctrine.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

Second Holding:

The defendant did not object to this probation condition with the trial court, but his appellate claim is not forfeited because he claims a facial constitutional violation.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888–889 [appellate claim that a probation condition was unconstitutionally vague and overbroad was not forfeited by failure to object below where the facial challenge was a pure question of law]

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

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

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Case 000653

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

On remand for full resentencing, it was error for the trial court to impose the upper term on the firearm enhancement where there was no jury determination beyond a reasonable doubt that the factors in aggravation relied on by the court were true.

First Holding:

If an enhancement (such as section 12022.5) is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless there are circumstances in aggravation that justify the imposition of the upper term and the facts underlying those cirucmstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury of by the judge in a court trial.

Authority:

PEN 1170.1

Second Holding:

Where the court imposes the upper term based on factors that have not been stipulated to or found true beyond a reasonable doubt by a jury, the defendant is entitled to a reversal and remand for resentencing unless, after examining the entire cause, including the evidence as to all relevant circumstances, the appellate court can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

In making this determination, we may examine what the jury necessarily did find and ask whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well. In other words, if no reasonable jury would have found in favor of the defendant on the missing fact, given the jury’s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt. We may also find the omission harmless if we can conclude beyond a reasonable doubt that the omitted fact was uncontested and supported by overwhelming evidence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775

Third Holding:

Whether the defendant has engaged in violent conduct that indicates a serious danger to society or the crime involved athreat of great bodily harm are subjective factual determinations. To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775

Sentencing

Case 000652

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

The court failed to give the defendant credit for time served while in custody on this matter in another state.

First Holding:

The defendant was entitled to credit against his sentence for all actual days of presentence custody, beginning on the day of his arrest and continuing through the day of sentencing. Defendant was taken into custody in another state, where he was held for 13 days before his arrival in California. He is entitled to credit for that time.

Authority:

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Sentencing

Case 000651

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 25 years to life for the murder (doubled to 50 years to life because of a prior strike) and two terms oflife without the possiblity of parole (LWOP) for the murder because of true findings on two separate special circumstance, even though the court stayed the 50 years to life term and one of the LWOP terms.

First Holding:

Once a defendant has been found guilty of first degree murder and an accompanying special circumstance allegation under section 190.2 has been found true, the penalty is death or imprisonment in the state prison for life without the possibility of parole. A special circumstance finding removes the possibility of penalty less than life without parole. Thus, the trial court’s imposition and stay of the 50-years-to-life sentence on the murder count was unauthorized and must be stricken.

Authority:

PEN 190.2(a)

People v. Noble (1981) 126 Cal.App.3d 1011, 1016

Second Holding:

Appellate court can correct a legal error resulting in an unauthorized sentence at any time.

Authority:

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13

Third Holding:

The defendant should not have received two life without parole sentences based on the two special circumstance findings. Under section 190.2(a), a defendant is sentenced to death or life imprisonment without parole if one or more of the enumerated special circumstances has been found true. Defendants do not receive additional punishment based on additional special circumstance findings.

Authority:

People v. Montes (2014) 58 Cal.4th 809, 874 [a defendant faces no additional punishment merely as a result of additional special circumstance finding]

Amelioration, Fines and fees, Sentencing

Case 000649

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

In 2025, the trial court resentenced defendant pursuant to section 1172.75—striking the two prior prison term enhancements—and otherwise reimposed the prior judgment from 1996, including a $10,000 restitution fine. The trial court erred by reimposing the restitution fine and it must be vacated.

First Holding:

Section 1465.9(d) provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” Resentencing does not reset the 10-year expiration of a section 1202.4 restitution fine.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on other grounds Mar. 11, 2026, S295038

Appellate Principles, Fines and fees, Sentencing

Case 000647

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

The court should have granted the defendant’s motion to vacate the restitution fine, which was more than 10 years old.

First Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d). The statute now provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.”

Authority:

PEN 1465.9(d)

Second Holding:

Defendant’s restitution fine was effectively vacated when section 1465.9(d) went into effect. The defendant’s motion, however, was filed a few months before the law took effect. For the statute to apply, it is not clear that a motion is even required, as the law declares the fine uncollectible and that any portion of a judgment imposing those fines is to be vacated. In the interests of judicial economy, we will direct the trial court to correct the abstract of judgment to reflect that the restitution fine has been vacated.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000646

Posted on August 26, 2026August 20, 2026 by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have vacated the restitution fine, as it was more than 10 years old.

Holding:

Authority:

PEN 1465.9(d)

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

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000645

Posted on August 25, 2026August 19, 2026 by Gary McCurdy

Error and/or relief

As to the section 1172.6 petition, the trial court denied the petition. This ruling was in error because the record of conviction does not establish as a matter of law that the defendant is ineligible for relief.

First Holding:

Under Penal Code section 1172.6, a defendant is entitled to an evidentiary hearing unless the record of conviction at the prima facie stage conclusively refutes—as a matter of law—defendant’s claim that he was convicted of a homicide offense under a now invalid legal theory.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Second Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

Third Holding:

On the plea form in 1994, the defendant stated that he was both an aider and abettor and the shooter. These statements are internally inconsistent. A defendant cannot be both an aider and abettor, and a direct perpetrator (the shooter). The defendant’s admission to the personal use of a firearm does not resolve the issue because a defendant can personally use a firearm without shooting it (e.g., brandishing a firearm).

Authority:

PEN 31

People v. Arzate (2003) 114 Cal.App.4th 390, 400

Fourth Holding:

While we could reject his statement that he was an aider and abettor and accept his statement that he was the shooter, we cannot engage in judicial discretion at the prima facie stage.

Authority:

People v. Garcia (1995) 32 Cal.App.4th 1756, 1771 [an exercise of discretion means different courts may reasonably arrive at different decisions, even on the same facts]

Fifth Holding:

We review de novo a trial court’s denial of a section 1172.6 petition at the prima facie stage. Appellate courts also interpret statutes under a de novo standard.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

John v. Superior Court (2016) 63 Cal.4th 91, 95

Sixth Holding:

Generally, a person may be liable for a crime either as a direct perpetrator or as an aider and abettor. A person can be held liable for crimes that were intentionally aided and abetted (target offenses); a person can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). Liability for an intentional, target offense is known as direct aider and abettor liability; liability for an unintentional, nontarget offense is known as the natural and probable consequences doctrine.

Authority:

PEN 31

People v. Laster (1997) 52 Cal.App.4th 1450, 1462–1463

People v. Montes (1999) 74 Cal.App.4th 1050, 1055

Seventh Holding:

Effective January 1, 2019, the Legislature narrowed accomplice liability theories for murder and attempted murder.The Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The Legislature also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

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

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

Eighth Holding:

Direct aider and liability is still a valid legal theory for homicide offenses after the Legislature amended sections 188 and 189. We have generally described the requisite mens rea for direct aiding and abetting as knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends.

Authority:

People v. Medrano (2021) 68 Cal.App.5th 177, 183

People v. Curiel (2023) 15 Cal.5th 433, 468

Ninth Holding:

Under section 1172.6, if the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing. At the prima facie stage, the trial court examines the underlying record of conviction, but the court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

Tenth Holding:

The trial court accepts the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief.

If the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner at the prima facie stage. For example, if the record of conviction irrefutably establishes as a matter of law that the jury determined that the petitioner was the actual killer, the trial court may properly deny the petition at the prima facie stage.

Authority:

People v. Flores (2023) 96 Cal.App.5th 1164, 1170

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

People v. Harden (2022) 81 Cal.App.5th 45, 56, 60

Eleventh Holding:

When a petitioner’s conviction results from a guilty plea, the record of conviction includes facts “the defendant admitted as the factual basis for a guilty plea. And when a defendant pleads guilty, he or she admits every element of the charged offense. However, in a section 1172.6 petition at the prima facie stage, the court may ordinarily only consider the facts the defendant has stipulated to as part of the guilty plea to determine the theory under which the defendant was convicted.

Authority:

People v. Gallardo (2017) 4 Cal.5th 120, 136

People v. Rivera (2021) 62 Cal.App.5th 217, 234

People v. Davenport (2021) 71 Cal.App.5th 476, 484

Twelfth Holding:

The defendant’s ambiguous statement in his felony plea form that he was both an aider and abettor and the shooter does not refute as a matter of law his later averment in his section 1172.6 petition that he was convicted as an aider and abettor under the natural and probable consequences doctrine. In order to resolve the defendant’s factual claim there must be an evidentiary hearing.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101