Category Archives: Sixth Amendment

Amelioration, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Vicarious liability

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

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

Second Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) convicted of murder, attempted murder, or manslaughter; and

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. The court takes 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.

If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

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

Fourth Holding:

A denial at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. This is a purely legal conclusion, which we review de novo.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960

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

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Bocanegra (2026) 122 Cal.App.5th 481

Sentencing, Sixth Amendment, Standard of review

Case 001028

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating facts that were not stipulated to or submitted to a jury for proof beyond a reasonable doubt. Remanded for a full resentencing.

First Holding:

Effective January 1, 2022, SB 567 amended Penal Code section 1170(b)(2) to provide that, when a statute specifies three possible terms of imprisonment, the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by circumstances in aggravation of the crime and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury at trial.

Authority:

PEN 1170(b)(2)

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 70

Second Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements. 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, 1086-1087

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

Third Holding:

The determination that a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. The defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness before the court could rely on this aggravating fact to find justification for an upper term sentence.

Applying the Chapman standard of review, we conclude that failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1085

People v. Lynch (2024) 16 Cal.5th 730, 776 [Because we cannot find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, the defendant’s sentence must be reversed]

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation 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.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth 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. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

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

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

Duty of counsel, Duty of the court, Immigration, Plea bargains, Sixth Amendment, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000994

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to vacate his guilty plea conviction under section 1473.7, because the defendant demonstrated entitlement to relief.

First Holding:

In response to the absence of a legal remedy for individuals who are no longer in custody but find themselves facing unanticipated immigration consequences resulting from a guilty or no contest plea entered years earlier, the Legislature added section 1473.7 to the Penal Code, effective January 1, 2017. The statute was subsequently amended to broaden eligibility for relief beyond the entry of a plea.

In relevant part, the statute now provides that individuals may file a motion for relief from a conviction or sentence on the basis that the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. Relief is not contingent upon establishing ineffective assistance of counsel.

Authority:

PEN 1473.7(a)

People v. Vivar (2021) 11 Cal.5th 510, 522-523

People v. Carrillo (2024) 101 Cal.App.5th 1, 12-13

Second Holding:

A defendant must satisfy three statutory requirements to be eligible to seek relief from a legally invalid conviction or sentence under section 1473.7(a)(1). The movant must show he is no longer in criminal custody, and the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The motion must also be timely.

Authority:

PEN 1473.7

People v. Carrillo (2024) 101 Cal.App.5th 1, 13

Third Holding:

To prevail under section 1473.7, a defendant must demonstrate that his conviction is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.

Next, the defendant must show that his misunderstanding constituted prejudicial error.

Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Vivar (2021) 11 Cal.5th 510, 529

Fourth Holding:

We evaluate prejudicial error under the totality of the circumstances.

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.

The defendant’s probability of obtaining a more favorable outcome if he had rejected the plea and the difference between the bargained-for term and the likely term if he were convicted at trial are also relevant.

These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320-321

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Martinez (2013) 57 Cal.4th 555, 564

Lee v. United States (2017) 582 U.S. 357, 358

Fifth Holding:

On appeal, we apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences.

We exercise independent judgment to determine whether the facts satisfy the rule of law, and defer to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed.

However, when, as in this case, the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

People v. Vivar (2021) 11 Cal.5th 510, 527-528

Sixth Holding:

The focus of this inquiry is the defendant’s own error. Thus, the key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

The defendant is the only one with direct access to his state of mind, but a defendant’s assertion as to his or her state of mind is not accepted at face value by courts evaluating a section 1473.7 motion. Such assertions must be corroborated with objective evidence.

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel.

Authority:

People v. Carrillo (2024) 101 Cal.App.5th 1, 16-17

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Espinoza (2023) 14 Cal.5th 311, 325

People v. Padron (2025) 109 Cal.App.5th 950, 962

Seventh Holding:

The standard section 1016.5 advisement—given to all criminal defendants in California who plead guilty to any offense other than an infraction—that his or her criminal conviction may have adverse immigration consequences does not bar a defendant from seeking relief from his plea on grounds of mistake or ignorance based on immigration consequences. Thus, the fact the superior court advised defendant pursuant to section 1016.5 does not resolve the matter against defendant.

Authority:

People v. Patterson (2017) 2 Cal.5th 885, 889, 895

People v. Lopez (2021) 66 Cal.App.5th 561, 577-578

People v. Espinoza (2023) 14 Cal.5th 311, 320

People v. Padron (2025) 109 Cal.App.5th 950, 962

Eighth Holding:

Prior to Padilla, there was no Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. Rather, most courts had determined that no such duty existed.

As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.

(Gary note:  I think we all know what the court means by “Prior to Padilla, there was no Sixth Amendment obligation ….”  But I think a more accurate statement would be something like, “Padilla was the first pronouncement by the United States Supreme Court recognizing that the Sixth Amendment places an obligation on the part of defense counsel to ….”  The Sixth Amendment was certainly not amended to add any provision generating a new obligation.  The Sixth Amendment has been around for centuries, unchanged.  It was only its import that hadn’t been seen in the past, at least by the High Court.

(The court’s phrasing as I’ve set out in the Ninth Holding tracks what I’m saying.

(I mention this because I think sometimes it is important to argue that something is NOT new law, and that it has BEEN the law all along, notwithstanding that it had not previously been understood to be the law.  Why is that important?  It can make the difference in whether a court recognizes that your client’s rights were violated, even though it was only through a later appellate analysis that the nature of the violation was discovered.  We don’t want the court to assume that, because no court had seen it before, your client is not entitled to its benefit.

(There have been decisions, of course, that decline to revisit cases where, had the law been understood at the time, there would have been a different result.  But that is generally related to the principle of finality of judgment and the jurisdiction of the court to act on the case.  While not directly the same, think of the Estrada presumption of retroactivity of ameliorative changes in the law to those whose judgments are not final, in the absence of clear intent that the change was to be applied prospectively only.  

(Just sayin’.

(Of course, with respect to Padilla, the practical effect is that yes, the Sixth Amendment imposes the obligation on the attorney to provide the advice, but the failure to do so prior to Padilla is not tantamount to ineffective assistance of counsel as that principle has been described in the past.  As the court in this case said, relying on In re Grinder, “As a general rule, a failure to anticipate changes in the law is not considered ineffective assistance of counsel.”

(Was there a change in the law?  Or simply a change in the understanding of the Sixth Amendment?  Of course, the opposition might argue that court pronouncements dictate what is the law, and therefore they represent the law, and thererfore it wasn’t until Padilla that the Sixth Amendment created the obligation.  An interesting debate, or not, but for another time.)  

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

Chaidez v. United States (2013) 568 U.S. 342, 353

People v. Carrillo (2024) 101 Cal.App.5th 1, 17

In re Grinder (2025) 114 Cal.App.5th 845, 872

Ninth Holding:

Here, defendant entered his plea 15 years before the United States Supreme Court held in Padilla that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. As such, defendant’s attestation that his attorney did not advise him about the immigration consequences of his plea is consistent with the state of the law at that time.

(Gary note: The appellate court examined and analyzed extensively many facts in the record from which it concluded that, based primarily on the principles I have extracted in this summary, the defendant was entitled to relief because his plea was not entered knowingly and intelligently within the contemplation of section 1473.7. I have omitted those details, some of which included citations to other cases apparently relevant to those details. Since this was an unpublished decision and cannot be cited for comparison, and since this is supposed to be a summary and not a copy of the entire decision, I have to stop about here.)

Authority:

PEN 1016.2

People v. Carrillo (2024) 101 Cal.App.5th 1, 18

People v. Rodriguez (2021) 68 Cal.App.5th 301, 307–312

 

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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.

Authority:

PEN 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

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

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Almendarez-Torrez v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466

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

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

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

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

Eighth Holding:

The Sixth Amendment is violated 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.

Authority:

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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848