Category Archives: Sentencing

Discretion, Sentencing, Sixth Amendment

Case: 000189

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by reimposing the upper term sentences based on aggravating factors that were not proven beyond a reasonable doubt to a jury as required under section 1170(b)(2). This error violated his Sixth Amendment right to a jury trial and was not harmless beyond a reasonable doubt. The trial court failed to exercise its discretion under AB 518 (2021-2022 Reg. Sess.) (regarding the choice of sentences to impose when section 654 permits sentencing on only one of the counts it applies to) at the resentencing hearing. The abstract of judgment must be corrected to reflect the correct sentencing date and number of custody credits.

First Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Section 1170(b)(2) similarly provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt’ at a jury or court trial. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Chapman v. California (1967) 386 U.S. 18

Third Holding:

Section 654 prohibits a court from punishing a defendant more than once for the same act or course of conduct. Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former sec. 654(a).) AB 518 amended section 654 effective January 1, 2022, to grant a court discretion to punish such an act under either of such provisions. The trial court erroneously failed to exercise its discretion under Assembly Bill 518 at the resentencing hearing. Since we are again remanding this matter for resentencing under Senate Bill 567, the trial court should conduct a full resentencing as to all counts based on the law and circumstances that apply when resentencing occurs, including the amendments to section 654 under AB 518.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

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

Fourth Holding:

The abstract of judgment will need to be corrected to reflect the correct sentencing date and number of custody credits.

[Gary note: The court did not cite authority for this obviously required order. There are many cases it could have cited. I have listed some of them below.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000188

Posted on by Gary McCurdy

Error and/or relief

The court denied the defendant’s motion for mental health diversion under section 1001.36, and placed him on probation. The evidence is insufficient to support the trial court’s finding that his undisputed mental health disorders were not a motivating, causal, or contributing factor in his involvement in the crime. We will reverse the probation order due to insufficient evidence supporting the trial court’s finding of ineligibility for mental health diversion under Penal Code section 1001.36(b)(2). We will remand the matter for the trial court to exercise its discretion under Penal Code section 1001.36(c) regarding defendant’s suitability for mental health diversion.

First Holding:

Since 2018, Penal Code section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and later amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion. As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense. The presumption can be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890

Second Holding:

We review for substantial evidence a decision that a qualifying mental health disorder (which the trial court found to exist here) was not a motivating factor, causal factor, or contributing factor in the charged conduct—a finding that must be supported by clear and convincing evidence. Given that standard, on appeal we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. We also must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Even considering the record in the light most favorable to the challenged ruling, we conclude it does not contain substantial evidence from which a reasonable trier of fact could have found it highly probable that defendant’s mental disorders were not a motivating factor, causal factor, or contributing factor in his involvement in the crime. A qualifying diagnosis creates a presumption that the defendant’s mental condition contributed to his criminal behavior. And the prosecution can only rebut this presumption by producing clear and convincing evidence that there was no causal connection. he statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime. The statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401, 404

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996

People v. Harlow (2025) 113 Cal.App.5th 485

Equal protection, Juveniles, Probation Parole PRCS, Sentencing

Case: 000187

Posted on by Gary McCurdy

Error and/or relief

The defendant contends on this appeal that the trial court erroneously found he was not entitled to a Franklin hearing in his petition for writ of habeas corpus and erred in denying his Franklin motion as successive. In 2018, the defendant filed a petition for writ of habeas corpus requesting a Franklin hearing.

(The Franklin court had held that a defendant seeking to preserve evidence following a final judgment should be given an opportunity to make a record of information relevant to his youth offender parole hearing.. Franklin authorized trial courts to receive any documents, evaluations or testimony that may be relevant at an eventual youth offender parole hearing.)

That court (in 2018) denied that petition on the basis that he was not eligible for a youth offender parole hearing because he would already be released before reaching the 15 years’ threshold for youth offender parole. In 2024, the defendant filed a motion for a Franklin hearing under section 1203.01. The trial court denied that motion on the grounds that it was a successive motion. The People agree with defendant that the court erred when it denied his motion as successive. We conclude the trial court erred when it denied defendant’s motion for a Franklin hearing as successive. We reverse the court’s order and remand for the court to consider defendant’s motion under Penal Code section 1203.01.

First Holding:

Effective January 1, 2014, SB 260 (2013–2014 Reg. Sess.) enacted sections 3051, 3046(c), and 4801(c) to provide a parole eligibility mechanism for youthful offenders. Defendants who were 25 years old or younger at the time they committed the offense and were convicted of a determinate term are entitled to a youth offender parole hearing during their 15th year of incarceration. The Franklin court had held that a defendant seeking to preserve evidence following a final judgment should be given an opportunity to make a record of information relevant to his youth offender parole hearing.. Franklin authorized trial courts to receive any documents, evaluations or testimony that may be relevant at an eventual youth offender parole hearing. For defendants whose judgments were final, the proper procedure to obtain a Franklin hearing is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision.

Authority:

PEN 1203.01

People v. Franklin (2016) 63 Cal.4th 261,283-284

People v. Perez (2016) 3 Cal.App.5th 612, 618

In re Cook (2019) 7 Cal.5th 439

Second Holding:

There is no express bar to successive motions or requests for a Franklin hearing under section 1203.01. The defendant’s section 1203.01 motion should not have been denied as successive.

Authority:

PEN 1203.1

People v. Franklin (2016) 63 Cal.4th 261

In re Cook (2019) 7 Cal.5th 439

Third Holding:

The trial court’s order denying a defendant’s Franklin motion is reviewed under the abuse of discretion standard. In deciding whether the court abused its discretion we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious. Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 459

People v. Benzler (2021) 72 Cal.App.5th 743, 749

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Fourth Holding:

Although defendant originally sought a Franklin hearing by filing a petition for writ of habeas corpus, as Cook explained, habeas corpus was not the proper procedure in the first instance. Accordingly, the court’s order denying the habeas petition did not bar the court from ruling on defendant’s subsequent Franklin motion, which was properly raised under section 1203.01 and Cook. As such, the trial court erred when it denied defendant’s Franklin motion on the sole basis he had already sought a Franklin hearing by filing a habeas petition. Therefore, the court abused its discretion when it denied defendant’s Franklin motion as successive.

Authority:

ADIn re Cook (2019) 7 Cal.5th 439, 457-458

Amelioration, Sentencing

Case: 000186

Posted on by Gary McCurdy

Error and/or relief

The defendant—whom a jury convicted of first degree murder in 1992—appeals the trial court’s order denying his Penal Code section 1172.6 resentencing petition at the prima facie stage. He contends he is entitled to an evidentiary hearing on his petition because the jury might have convicted him as a mere participant—rather than as the actual killer—under a felony murder theory of liability. The record of conviction, however, reveals no path permitting the jury to convict him as anything other than the actual killer. And he puts forth no specific facts that identify someone else as the direct perpetrator. Nor does he challenge any other elements of his conviction. We therefore conclude the court properly denied the petition, but we remand to give the defendant the opportunity to file an amended petition to address its current deficiencies.

Holding:

The record of conviction reveals no path permitting the jury to convict the defendant as anything but the actual killer. Out of an abundance of caution, however, we grant his request for an opportunity on remand to plead additional relevant facts in support of his petition. Accordingly, we conditionally affirm.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

People v. Curiel (2023) 15 Cal.5th 433, 462

People v. Glass (2025) 110 Cal.App.5th 922, 925

Appellate Principles, Duty of the court, Sentencing

Case: 000185

Posted on by Gary McCurdy

Error and/or relief

The defendant’s Penal Code section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions. The trial court held a resentencing hearing, struck the invalid enhancements, but declined to further reduce defendant’s sentence. We reverse for some certain conceded errors in the pronouncement of sentence, including with respect to custody credits, but otherwise affirm.

First Holding:

A trial court conducting a resentencing under section 1172.75 has discretion to dismiss a “strike” allegation under the Three Strikes law. There was no abuse of discretion here.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504

People v. Williams (1998) 17 Cal.4th 148, 161

Second Holding:

The trial court calculated certain elements of the defendant’s sentence by subtracting the one-year prior prison term enhancements from his original sentence as opposed to the later sentence imposed on remand following a determination that it was error to sentence on two–rather than just one–of the counts because of Penal Code section 654. There was some further ambiguity in the sentence imposed at the section 1172.75 hearing. The matter must be remanded to the trial court to strike the prior prison term enhancements on Counts Two and Three, to clarify the sentence on Count Three remains stayed, and to clarify the status of the prior serious felony enhancement on Count Two.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Third Holding:

The trial court improperly delegated calculation of his custody credits to the California Department of Corrections and Rehabilitation.

Authority:

PC 2900.1

PC 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 23-24

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

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

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

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

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

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Retroactivity, Sentencing

Case: 000182

Posted on by Gary McCurdy

Error and/or relief

In light of AB 333, the trial court’s true findings on the prior serious felony enhancement and the strike prior allegations must be reversed. It is undisputed that there was insufficient evidence that defendant’s prior gang-related conviction (sec. 186.22(a)) satisfied the more stringent evidentiary requirements imposed by the change in law. Therefore, the court erred in considering that conviction to double defendant’s sentence. Accordingly, we will vacate the sentence and remand the matter for further proceedings. The defendant’s sentence is vacated and the matter is remanded for further proceedings, including a full resentencing. On remand, the People may elect to retry, under current law, the allegation that defendant’s prior gang-related conviction qualifies as a serious felony and strike prior for purposes of the three strikes law and a prior serious felony enhancement.

First Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) narrowed liability for gang-related offenses by requiring more stringent evidentiary requirements for proving them.

Authority:

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

People v. Rojas (2023) 15 Cal.5th 561, 576

Second Holding:

AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It applies to the analogous determination under section 667(a) for prior serious felony enhancements. Thus, AB 333’s amendments to section 186.22 apply to the current determination of whether the prosecution has proven the prior serious felony enhancement allegations in this case. In other words, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 605, 607

Third Holding:

Where, as here, AB 333 applies retroactively to the determination of whether a prior gang-related conviction qualifies as a serious felony for purposes of the three strikes law and a prior serious felony enhancement we review for harmless error pursuant to Chapman. Vacating a true finding is required unless it appears beyond a reasonable doubt that the finding would have been the same under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

Chapman v. California (1967) 386 U.S. 18

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

People v. Lewis (2006) 139 Cal.App.4th 874, 887

Fourth Holding:

At the time the defendant entered his guilty plea, the People were not required to prove, and defendant did not admit, the current evidentiary requirements of that provision, as amended by AB 333. Under these circumstances, the appropriate remedy is to vacate the true findings on the allegations that defendant’s prior gang-related conviction qualifies as a prior serious felony for purposes of the three strikes law and the prior serious felony enhancement and remand the matter to the trial court to allow the People the opportunity to retry those allegations under current law, considering the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

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

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) 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. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

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

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632

Sentencing

Case: 000177

Posted on by Gary McCurdy

Error and/or relief

The court erred in its calculation of credit for time served. The miscalculation appears to be the result of the trial court failing to include the fact defendant was in custody from his initial arrest for an earlier period before he was arrested a second time.

Holding:

The appellate court accepted the People’s concession regarding the credit for time served error and modify the judgment to include the correct number of days.

Authority:

People v. Guillen (1994) 25 Cal.App.4th 756, 764

Abstracts and Minutes, Eighth Amendment, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000176

Posted on by Gary McCurdy

Error and/or relief

The $150 restitution fine and the parole revocation fine imposed on count three are unauthorized and must be vacated or stayed. The fine had been imposed on a count that was stayed under Penal Code section 654. Aside from that problem, a separate parole revocation fine cannot be imposed on a misdemeanor offense. Also, the abstract of judgment must be corrected because it incorrectly states that he has a prior strike and was sentenced under Penal Code section 667(b) through (i), or section 1170.12.

First Holding:

When a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized sentence that can be challenged for the first time on appeal.

Authority:

People v. Soto (2016) 245 Cal.App.4th 1219, 1234

Second Holding:

Defendant is not subject to parole separately for the misdemeanor and is thus not subject to a parole revocation restitution fine on it.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 547

Third Holding:

The abstract of judgment must be corrected because it erroneously states that he has a prior strike and that he was sentenced under section 667(b) through (i), or section 1170.12. There is no indication in the record defendant has sustained a prior strike conviction. We will order the abstract of judgment corrected to reflect that he does not have a strike prior, and he was not sentenced pursuant to section 667(b) through (i), or section 1170.12.

[Gary note: The court cited no authority for the obvious proposition that the abstract of judgment needs to be corrected. I have listed below some of many cases that the court could have relied on.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The meaning of a statute is a question of law that we review de novo.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Amelioration, Sentencing

Case: 000173

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from an order finding her ineligible for resentencing under Penal Code section 1172.75. The trial court found her ineligible because the prior prison term enhancement had been stayed and not executed. We reverse with instructions that the trial court conduct further proceedings under that section.

First Holding:

The defendant is not requesting resentencing under the Three Strikes Reform Act. She was not even eligible for the Three Strikes Reform Act process because her current felony is a serious felony, to which the Reform Act is inapplicable. She is requesting the trial court exercise its discretion under in the furtherance of justice under Romero to strike one of her prior strike offenses. Because she is not eligible for (and is not seeking relief under) the Three Strikes Reform Act, section 1172.75 does not unconstitutionally conflict with it.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 347, 363-364

People v. Superior Court (Romero) 13 Cal.4th 497

Second Holding:

A defendant is entitled to the provisions of section 1172.75 even when execution was stayed for the now-invalid enhancement for a prior prison term.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Third Holding:

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken (why do I think of a secret agent when I write that?), which was directly addressed by Rhodius.]

Authority:

People v. Espino (2026) ___ Cal.5th ___ (S286987)

Fourth Holding:

In 2020, the Legislature enacted section 1172.75, which limits the circumstances when section 667.5, subdivision (b) sentencing enhancements may be imposed. Someone serving a sentence that includes an enhancement that section 1172.75 now renders invalid is eligible for possible resentencing.

Authority:

PEN 1172.75

People v. Renteria (2023) 96 Cal.App.5th 1276, 1282

Fifth Holding:

Though inapplicable here because the defendant is ineligible for relief under the Three Strikes Reform Act, the Reform Act’s revised penalty provisions may be applied at a section 1172.25 resentencing if section 1170.126’s substantive requirements are satisfied.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 861