Category Archives: Sixth Amendment

Amelioration, Sentencing, Sixth Amendment

Case 001142

Posted on by Gary McCurdy

Error and/or relief:

The court erred by denying defendant’s petition in violation of his constitutional right to be present at the evidentiary hearing. The order denying defendant’s petition is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing with defendant’s presence or with a valid waiver.

First Holding:

Sentencing and resentencing hearings are critical stages in a criminal proceeding. Courts have consistently held that a defendant has a right to be present at proceedings that are ‘akin to a plenary sentencing hearing. This includes proceedings necessary to determine factual questions bearing on the defendant’s eligibility for resentencing. The defendant’s presence significantly contributes to the fairness of the hearing as a matter of due process. Indeed, the court’s decision at the evidentiary hearing may well turn on disputed issues of fact about which the defendant—as a participant in the events in question—may well have had something to say.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532–534

People v. Basler (2022) 80 Cal.App.5th 46, 59

Second Holding:

If a defendant was not present at the evidentiar] hearing, the reviewing court must determine whether his or her absence was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536

Chapman v. California (1967) 386 U.S. 18, 24

Third Holding:

In line with Basler, Quan, and Jackson, we cannot say defendant’s absence from the hearing was harmless beyond a reasonable doubt.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524,

People v. Basler (2022) 80 Cal.App.5th 46,

People v. Jackson (2025) 110 Cal.App.5th 128,

Fourth Holding:

In Basler, the court noted that the entire purpose of the resentencing hearing was for the court to consider whether to vacate the defendant’s conviction and recall the defendant’s sentence, including by reviewing the record and taking new evidence, if offered, on the issue of the defendant’s actions and mens rea.

For example, the defendant may have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence. Although the trial court may, or may not, have chosen to believe what the defendant might have said, if he said anything, the reviewing court could not conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.

Further, a defendant’s decision not to testify at trial is not dispositive on the prejudice suffered by his absence at the section 1172.6 evidentiary hearing, particularly given the new focus on a defendant’s mental state and the court’s ability to consider new or additional evidence on the point.

Authority:

People v. Basler (2022) 80 Cal.App.5th 46, 59-60

Fifth Holding:

In Quan, the court could not say beyond a reasonable doubt that depriving the defendant of the right to be present at the section 1172.6 hearing was harmless. The court noted the prosecution had the burden of establishing the defendant’s reckless indifference to life, which had an objective and subjective component. Thus, if the defendant was present, he could have addressed what he knew of his confederates willingness to kill in furtherance of their objectives, or the other relevant components of the crime.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 536-537

Sixth Holding:

In Jackson, the court held remand was necessary partly because of the difficulty of evaluating trial records that are often decades old in the light of significant legal changes. The court explained that the arguments of counsel and the presence of the defendant can be critical to judges deciding these issues and to the fairness of the proceeding for the defendant. Where factual and legal issues must be resolved, a hearing enables the court to inform counsel and the parties of its tentative thoughts and allows them, in turn, to respond and potentially to present a different point of view, about both the significance of the evidence and how the law applies to it.

Authority:

People v. Jackson (2025) 110 Cal.App.5th 128, 153

Duty of the court, Retroactivity, Sentencing, Sixth Amendment

Case 001096

Posted on by Gary McCurdy

Error and/or relief

The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.

The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.

First Holding:

Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.

In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

Second Holding:

When a defendant is being resentenced under section 1172.75, a resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

The court shall appoint counsel to represent a defendant at resentencing proceedings.

Authority:

PEN 1172.75(d)(2), (d)(3), (d)(5)

Third Holding:

The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673

Fourth Holding:

Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.

Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.

Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Sentencing, Sixth Amendment, Standard of review

Case 001089

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. Based on the probation report, the court found that the defendant had numerous prior convictions as an adult, had served prior prison terms, and was on postrelease community supervision at the time of the current offenses.

First Holding:

Section 1170(b)(2) provides that a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

The statute permits a court to consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

Second Holding:
With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. Under section 1170(b), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The prior conviction exception to the Sixth Amendment does not permit a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

U.S. Const., Sixth Amend.

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821

Third Holding:

Wiley applied Erlinger and overruled previous decisions finding it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory.

Wiley explained that, under Erlinger, the Sixth Amendment entitles a defendant to a jury determination before a court may rely on those aggravating facts to find justification for an upper term sentence, unless the defendant stipulates to their truth or waives a jury trial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1085

Fourth Holding:

A trial court’s reliance on aggravating circumstances found in violation of a defendant’s jury trial right is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the question is whether any rational fact finder could have come to the opposite conclusion.

(Gary note: The court discuss circumstances specific to this defendant and concluded that the error was prejudicial under Chapman.)

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 747, 768, 743 [reversal and remand required unless reviewing court concludes beyond a reasonable doubt that a jury would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified]

People v. Wiley (2025) 17 Cal.5th 1069, 1090

Fifth Holding:

The California Supreme Court has cautioned about the difficulties in ascertaining whether a jury would have found true an aggravating circumstance that calls for an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance.

To the extent a potential aggravating circumstance 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, 775-776

Sixth Holding:

Though Wiley declined to address whether defendants are entitled to have a jury determine if their prior convictions are numerous, we accept the positions of the People that, under the holdings and logic of Erlinger and Wiley, a jury finding on this aggravating fact is required (absent waiver or stipulation), as the question whether a defendant has suffered “numerous” convictions (rule 4.421(b)(2)) involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1084

People v. Wright (2025) 113 Cal.App.5th 832, 847 [error to deny trial by jury on whether defendant suffered ‘numerous’ convictions in the past]

Seventh Holding:

Further proceedings on remand are to be conducted in accordance with the current statutory requirements and the defendant given the opportunity for the jury trial, of which he was deprived.

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court.

The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence.

If it cannot so conclude, it may impose no more than a middle term.

The matter is remanded for a full resentencing consistent with this opinion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 777

Duty of counsel, Sixth Amendment

Case 001082

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not hold a hearing on the defendant’s motion to have his attorney replaced.

First Holding:

Through counsel, the defendant filed a timely notice of appeal in his Case A. About a month later, he filed in pro. per. a notice of appeal in his Case B. The sentencing hearing had encompassed both cases. The prosecution asserts that the appellate court lacks jurisdiction over the appeal in Case B because its notice of appeal was filed after the 60-day deadline.

The notice of appeal must be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. The liberal construction rule exists to implement the strong public policy favoring the hearing of appeals on the merits.

To be sure, a notice of appeal must identify the particular judgment or order being appealed. However, under the liberal construction rule, courts have held that once a notice of appeal is timely filed from one appealable order, a court can construe it as encompassing a separate, related appealable order as to which it is timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the respondent.

As in Jordan, we deem it appropriate, in the interests of justice, to construe the notice of appeal filed in Case A as sufficient to constitute a notice of appeal in both that case and Case B.

Authority:

Cal. Rules of Court, rule 8.304(a)(4)

D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361

K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 878, 882

In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9

Second Holding:

The defendant submitted a motion to replace counsel under Marsden, asserting various claims pertaining to the adequacy of his representation by counsel. The court marked the motion “Received But Not Filed.” The court never held a hearing on the motion.

The law governing a Marsden motion is well-settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.

Authority:

People v. Marsden (1970) 2 Cal.3d 118

People v. Jackson (2009) 45 Cal.4th 662, 682

Third Holding:

A proper and formal Marsden motion is not required—the defendant need only clearly indicate to the trial court in some manner that he or she is requesting the discharge and replacement of the appointed counsel.

Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. Failure to conduct such a hearing is legal error that compels reversal of the defendant’s conviction unless the record shows beyond a reasonable doubt that the error was harmless.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1178-1179

People v. Marsden (1970) 2 Cal.3d 118, 126

Fourth Holding:

When a trial court’s failure to hold a hearing is inadvertent and a defendant fails to press for a hearing, he can abandon his Marsden request. In this case, we conclude that the facts are closer to Armijo (which concluded the defendant did not abandon the motion by failing to press for a ruling) than Jones (which concluded the opposite).

There is nothing in the record suggesting the trial court’s failure to hold a hearing on the Marsden motion was anything other than an inadvertent omission. As in Armijo, the defendant may reasonably have concluded that his motion had been considered by the court and denied.

We cannot speculate on the basis of a silent record that the trial court, after listening to the defendant’s reasons, would decide the appointment of new counsel was unnecessary.

Authority:

People v. Jones (2012) 210 Cal.App.4th 355, 361

People v. Vera (2004) 122 Cal.App.4th 970, 982

Fifth Holding:

We therefore will conditionally to reverse the orders of probation in both superior court cases and remand to the trial court with the following directions:

(1) the court shall hold a hearing on the defendant’s Marsden motion concerning his representation by his attorney;

(2) if the court finds that the defendant has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and

(3) if newly appointed counsel makes no motions, any motions made are denied, or defendant’s Marsden motion is denied, the court shall reinstate the orders of probation.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 92–93

People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 and fn. 6

Jury trial, Sixth Amendment

Case 001080

Posted on by Gary McCurdy

Error and/or relief

The court’s closure of the courtroom to the entire public during the testimony of at least two accomplice witnesses (who claimed fear of retaliation by the defendant’s fellow gang members for their testimony) violated the defendant’s constitutional right under the federal and state constitutions to a public trial.

First Holding:

Four requirements are necessary to justify exclusion of the entire public from a courtroom:

(1) the existence of an overriding interest that is likely to be prejudiced absent the closure;

(2) the closure is narrowly tailored, i.e., no broader than necessary to protect that interest;

(3) no reasonable alternatives to closing the proceeding are available; and

(4) the trial court must make findings adequate to support the closure.

Authority:

Waller v. Georgia, (1984) 467 U.S. 39, 48

Second Holding:

A partial closure of the courtroom requires only a substantial reason for the exclusion of certain spectators, and that the exclusion be narrowly tailored.

Authority:

People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. 1

Third Holding:

The United States Constitution and the California Constitution guarantee a criminal defendant the right to a public trial, including the right to have friends and relatives present during the proceedings.

The right to a public trial serves two important interests. It protects those who are accused of a crime by helping to ensure that the innocent are not unjustly convicted and that the guilty are given a fair trial. Second, there is a strong societal interest in public trials; they provide an opportunity for spectators to observe the judicial system, improve the quality of testimony, encourage witnesses to come forward with relevant testimony, and prompt judges, lawyers, witnesses, and jurors to perform their duties conscientiously.

Authority:

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, sec. 15;

In re Oliver (1948) 333 U.S. 257, 271-272, 272, fn. 29 [noting special concern for assuring attendance of a defendant’s family members and friends]

People v. Scott (2017) 10 Cal.App.5th 524, 530

Fourth Holding:

In general, there are two types of exclusions: a total closure where all spectators are directed to leave the courtroom, and a partial closure where some, but not all, spectators are asked to leave.

Authority:

People v. Esquibel (2008) 166 Cal.App.4th 539, 552

Fifth Holding:

While California statutes permit both exclusion and closure orders, rulings applying those statutes are still subject to the fundamental constitutional right to a public trial under the federal and California constitutions. We thus analyze the court’s Closure Order (excluding the entire public during the testimony of certain witnesses) using the factors the Supreme Court identified as relevant to balancing the important public interest in open courtrooms against any higher values or overriding interest.

Authority:

PEN 686.2

PEN 868,7

Waller v. Georgia, (1984) 467 U.S. 39, 45

Sixth Holding:

Protecting trial witnesses from threats, harassment, or physical harm is an overriding interest and deserving of protection. Substantial evidence supports the trial court’s factual determination that one of the witnesses felt intimidated by the presence of individuals in the courtroom on the second day of his testimony.

(Gary note: The court went on to compare the conclusions of the trial court with the remaining requirements of Waller, and determined that the initial partial exclusion order by the trial court–excluding only certain named individuals–was likely reasonable under Waller. The additional information the trial court received about the defendant’s purported involvement in securing the presence of those spectators did not add anything to the analysis of the threat as to warrant closure to the entire public. The appellate court’s analysis under Waller is fact specific and not particularly informative in the context of these summaries of unpublished opinions.)

Authority:

NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223

Seventh Holding:

It has been a longstanding aspect of criminal law that exclusion of witnesses does not violate a defendant’s right to a public trial, even if the witnesses are the defendant’s close relations.

Authority:

EVID 777 [the trial court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses]

People v. Sprague (1879) 53 Cal. 491, 493 [The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination]

United States v. Ricker (8th Cir. 2020) 983 F.3d 987, 994 [rejecting the defendant’s Sixth Amendment argument after the defendant’s father was excluded from the courtroom as a potential witness but was not called; explaining that the Supreme Court has said that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged., but that entitlement is not absolute, and does not necessarily prohibit the sequestration of the defendant’s friends or relatives who may be called as witnesses.]