Category Archives: Standard of review

Amelioration, Discretion, Sentencing, Standard of review

Case: 000261

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing under section 1172.75, the court abused its discretion when it declined to dismiss the prior serious felony conviction enhancements as to each count. Pursuant to section 1465.9, we vacate the balance of the restitution fine.

First Holding:

Section 1385 provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so. It requires that a sentencing court give great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. One or more mitigating circumstances weighs greatly in favor of dismissing the enhancement. The statute provides an exception when the court finds that dismissal of the enhancement would endanger public safety. “Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385

Second Holding:

When a trial court finds that dismissal of an enhancement would endanger public safety, it must not exclusively consider whether the defendant currently poses a danger to the public. Although the current dangerousness of the petitioner is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence. A currently dangerous defendant who will be released from prison within a short timeframe not necessarily the same as a currently dangerous defendant who has no prospect of release from prison until he is elderly. A trial court would find the former to pose a greater danger than the latter.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present. Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in the furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1029, 1036

Fourth Holding:

We review a trial court’s decision not to strike sentencing enhancements under section 1385 for abuse of discretion. We must not disturb an exercise of discretion on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. A court abuses its discretion if it bases its decision on impermissible factors or on an incorrect legal standard.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Fifth Holding:

During the resentencing hearing, the prosecutor argued that the superior court should not reduce the sentence beyond striking the prior prison term enhancement because the defendant posed a threat to public safety based on the underlying facts of the case. In response, defense counsel urged the court not to focus on his current risk to public safety. She reasoned that the defendant would still have to serve three consecutive life sentences even if the court struck the prior serious felony conviction enhancements.

The court’s discussion of the underlying offenses and the defendant’s prior convictions does not suggest a forward-looking inquiry. Instead, the court relied on past conduct to determine the defendant’s present dangerousness. The court applied a legal standard that was not consistent with Gonzalez. The record does not demonstrate that the superior court considered whether the defendant would endanger public safety if the enhancements were stricken and he was still subject to the indeterminate term. We conclude that the superior court abused its discretion by failing to consider his future dangerousness if the enhancements were stricken within the context of his indeterminate sentence.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Sixth Holding:

The Attorney General argues that we should presume that the superior court correctly applied the law and conducted a forward-thinking inquiry as to the defendant’s dangerousness. But the superior court did not have the benefit of Gonzalez on the date of resentencing. We cannot presume the trial court knew a standard that did not yet exist.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 637

People v. Chambers (1982) 136 Cal.App.3d 444, 457 [presumption does not apply when the sentencing law is not yet established]

People v. Jones (2022) 86 Cal.App.5th 1076, 1092

Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000259

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a full resentencing hearing because the trial court unconstitutionally relied upon its own factfinding to impose the upper term on defendant’s conviction, and the error is not harmless beyond a reasonable doubt.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the 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 trial by the jury or by the judge in a court trial. Notwithstanding these provisions, the court may 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:

People v. Lynch (2024) 16 Cal.5th 730, 748

Second Holding:

The trial court’s factfinding role as to a defendant’s prior convictions is specifically exempted from the Sixth Amendment jury trial right. However, any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767

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

Third Holding:

A court’s determination that a defendant has suffered prior criminal convictions on separate occasions, that the offenses were close in time, and that they were similar or intertwined in purpose and character runs afoul of constitutional proscriptions and must be resolved by a unanimous jury beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083 [Error for court to impose additional time based on its qualitative assessment of the offenses time, location, character, and purpose]

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

Fourth 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, 1086 [error not harmless where a rational jury could have concluded that the People failed to prove beyond a reasonable doubt that the defendant’s convictions were of increasing seriousness]

People v. Lynch (2024) 16 Cal.5th 730,742-743, 760-761, 768, 775 [We may find the omission harmless if we can conclude beyond a reasonable doubt ‘that the omitted fact was uncontested and supported by overwhelming evidence]

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

Sentencing, Standard of review

Case: 000254

Posted on by Gary McCurdy

Error and/or relief

Penal Code section 654 prohibits punishment for both the murder and the burglary during which it occurred. In addition, the defendant is entitled to one more day credit for time served.

First Holding:

Section 654 provides in relevant part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. It bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. It has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. If all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.

Authority:

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042–1043

Second Holding:

On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. We review de novo the legal question of whether section 654 applies.

Authority:

People v. Valli (2010) 187 Cal.App.4th 786, 794

Third Holding:

Burglary consists of entry into a house with the intent to commit a felony. Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. Here, the record reflects that the intent and objective of both the burglary and the murder were the same, and this was the prosecution’s theory of the case at trial. Accordingly, in light of the evidence introduced at trial, the jury instruction on burglary, and the prosecutor’s argument, substantial evidence does not support the trial court’s order to sentence defendant consecutively on these counts. Rather, one of the sentences on counts 1 or 2 should be stayed pursuant to section 654. And, because section 654 provides the court with discretion with regard to which sentence will be stayed, remand is necessary for the court to exercise its discretion in modifying defendant’s sentence.

[GARY NOTE: Don’t ignore the importance of this last statement. While it may be hard to imagine a case in which a judge would sentence on the burglary and stay the sentence for the murder, the judge does have that discretion under section 654. You may have a case where your client may be more sympathetic and the crimes not so divergent in their relative seriousness. It is not inconceivable that you could persuade a judge to impose and execute sentence on the lesser evil committed by your client, staying execution of the sentence on the more serious offense.]

Authority:

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130 [When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes]

Fourth Holding:

Defendant was entitled to one additional day of presentence custody credit because the court failed to include the day of his arrest.

Authority:

PEN 2900.5


People v. Taylor (2004) 119 Cal.App.4th 628, 647


People v. Valdes (2020) 53 Cal.App.5th 953, 955 [the day of arrest counts as a custody credit day]

Elements of crime, Sentencing, Standard of review, Statutory interpretation

Case: 000253

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the defendant’s perjury conviction. We reverse the perjury conviction. His excess presentence custody credits must be applied to reduce his parole period. The record does not permit a determination of the precise number of excess custody credits. Because we are remanding for resentencing, we direct the trial court to calculate and determine the appropriate application of those credits.

First Holding:

A conviction under section 118(a) requires proof that the challenged statement was made under penalty of perjury, and that the sex offender registration form signed by the defendant did not contain such a declaration. Because the statutory element was not established, reversal is required.

Authority:

PEN 118(a)

Second Holding:

When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting that review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Reversal for insufficient evidence is warranted only where it appears that, under no hypothesis whatsoever, is there sufficient evidence to support the verdict.

Authority:

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Section 118(a) provides that a person commits perjury when he or she certifies under penalty of perjury and willfully states as true any material matter that he or she knows to be false. Proof that the false statement was made under penalty of perjury is therefore an essential element of the offense. Here, the Criminal Justice Information System (CJIS) Form 8102S signed by the defendant states: “I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense.” The form does not state that the certification is made under penalty of perjury. Because the prosecution failed to establish this essential statutory element, the evidence is insufficient to support the defendant’s conviction for perjury under section 118(a). Accordingly, the conviction on that count must be reversed, and the matter remanded for resentencing.

Authority:

People v. Tafoya (2025) 109 Cal.App.5th 868, 902

Fourth Holding:

Section 2900.5 requires that all days a defendant spends in custody—including time in jail or a rehabilitation facility—be credited against the defendant’s term of imprisonment, which expressly includes any period of parole prior to discharge. By the time the defendant was sentenced, he had already served enough days in custody to qualify for release on parole.

Authority:

PEN 2900.5

In re Ballard (1981) 115 Cal.App.3d 647, 650

Fifth Holding:

The parties and trial court disagreed on how to calculate the time expected to complete a 16-month term against which the known number of days in custody would apply, but approaches proposed are flawed. Section 7(b)(13) defines a “month” as a “calendar month.” A calendar month is not a fixed number of days, but rather the space of time from any day of any such month to the corresponding day of the next, and may therefore vary in length. Consequently, a sentence expressed in months cannot be converted into a predetermined number of days by multiplying months by 30, nor by fractionalizing a year into parts. Instead, the proper calculation depends on the defendant’s actual dates of incarceration and release. Because the record does not disclose the precise date of the defendant’s incarceration, we cannot determine the exact number of days constituting his 16-month term. Accordingly, this issue must be remanded for the trial court to calculate his sentence based on his actual custodial dates and to apply any excess custody credits to reduce his parole period as required by section 2900.5

Authority:

PEN 7(b)(13)

In re Kemper (1980) 112 Cal.App.3d 434, 439, fn. 2

People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 414, fn. 23 [a three-month statutory period may range from 89 to 92 days depending on the specific dates involved]

Sentencing, Sixth Amendment, Standard of review

Case: 000252

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial by imposing the upper term without an express waiver of his right to a jury trial on the aggravating factors. The trial court’s finding that the defendant had consistently violated the law is a decision that goes beyond the bare fact of the prior conviction and its elements and therefore exceeds the scope of the statutory exception to the jury trial right for prior conviction that appears in section 1170(b)(3). Absent a waiver the defendant was entitled to a jury trial on the aggravating factors. The error was not harmless beyond a reasonable doubt.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b) unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

Second Holding:

In 2022, the Legislature amended section 1170, subdivision (b) to limit a trial court’s discretion to impose the upper term of a sentencing triad. Under the current version of the statute, trial courts may impose a sentence that exceeds 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. However, the court may 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

People v. Lynch (2024) 16 Cal.5th 730, 773

Third Holding:

In Erlinger, the United States Supreme Court clarified that the court in Almendarez-Torres v. United States permitted a judge to undertake the job of finding the fact of a prior conviction—and that job alone. The question before the Erlinger court was whether a judge may decide that a defendant’s past offenses were committed on separate occasions or whether the Fifth and Sixth Amendments required a jury to make that determination beyond a reasonable doubt. In holding that Erlinger was entitled to a jury determination on the issue, the court stated that deciding whether those past offenses occurred on three or more different occasions is a fact-laden task, and judges may not assume the jury’s factfinding function for themselves.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 825, 834, 837

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

Fourth Holding:

The California Supreme Court confirmed that virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously beyond a reasonable doubt. Unless the defendant waives the right to a jury trial or stipulates that the aggravating factors are true, the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

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

Fifth Holding:

The Wiley court held that an inquiry of whether 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. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. A defendant is entitled to a jury determination 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 was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

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

Sixth Holding:

Based on our review of the defendant’s prior record—including his CLETS certified rap sheet, certified records of his convictions, and the probation officer’s report—the sentences imposed for his conviction, the age of his felony convictions, and the nature of his recent offenses could lead a jury to conclude that the defendant’s convictions were not of increasing seriousness. On this record, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found these aggravating factors true. Because it is possible a jury could reach the opposite conclusion on one of the aggravating factors the court may have relied on to impose the upper term, the omission of the defendant’s right to a jury trial on the aggravating factors was not harmless beyond a reasonable doubt. We, therefore, reverse his sentence and remand for a trial on the aggravating factors.

Authority:

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

 

Amelioration, Sentencing, Standard of review

Case: 000251

Posted on by Gary McCurdy

Error and/or relief

Though the trial court did not err in concluding that the defendant’s bare assertions of eligibility for relief in his petition to recall his sentence under section 1172.6 were belied by the record of conviction, the matter was remanded to the trial court to give the defendant the opportunity to file an amended petition.

First Holding:

Senate Bill No. 1437 amended the statutes defining malice (section 188) and felony murder (section 189, subd. (e)) to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and limit the scope of the felony-murder rule. It also added former section 1170.95, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Effective January 1, 2022, Senate Bill No. 775 amended section 1170.95 to extend the resentencing procedures to a person convicted under any other theory under which malice is imputed to a person based solely on that person’s participation in a crime. Former section 1170.95 has since been renumbered as section 1172.6, with no substantive changes.

Authority:

PEN 1172.6

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

Second Holding:

If a section 1172.6 petition contains all required information (e.g., declaration of eligibility, case information, any request for appointed counsel), the trial court must review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of section 1172.6. If the petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested, and the prosecutor must file a response, and the petitioner may file a reply. The court then reviews the petition a second time. If it concludes in light of this briefing that the petitioner has made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and recall the sentence and resentence the petitioner on any remaining counts.

Authority:

People v. Roldan (2020) 56 Cal.App.5th 997, 1003

Third Holding:

When conducting the prima facie review, the trial court must assume the truth of the petition’s allegations unless they are refuted by the record of conviction. If a petition is supported only by conclusory, checkbox allegations and the preliminary hearing transcript contains unchallenged, relief-foreclosing facts, then the trial court may deny the petition at the prima facie stage. This is because a section 1172.6 petitioner who, despite having access to counsel upon submission of a facially sufficient petition, offers only conclusory allegations of entitlement to relief, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 564-566

Fourth Holding:

However, petitioners need not, at the prima facie stage, meet an evidentiary burden of proof to establish entitlement to relief, such as the burden of proof applicable to the People if trying to defeat relief at the later section 1172.6, subdivision (d)(3) evidentiary hearing. Rather, petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Fifth Holding:

We review de novo whether the record of conviction establishes that the petitioner is ineligible for resentencing relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Sixth Holding:

The court properly considered the preliminary hearing transcript to make a prima facie determination that defendant was the actual killer and thus ineligible for resentencing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Seventh Holding:

Defendant requests that, if we affirm, we should remand with directions to afford him 30 days to amend his petition to plead additional facts. Because defendant did not have the benefit of Patton’s guidance during the prima facie stage before the trial court, we grant his request.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

People v. Glass (2025) 110 Cal.App.5th 922, 930

Sentencing, Standard of review

Case: 000245

Posted on by Gary McCurdy

Error and/or relief

Section 654 required the court to stay the punishment for one of his two criminal threat convictions. The record is devoid of any evidence suggesting that the defendant had sufficient time to reflect and renew his intent between his act of sending the first set of text messages giving rise to count 2 and his act of sending the second set of text messages giving rise to count 3. Therefore, we modify the judgment to stay the punishment for one of the counts.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 protects against multiple punishment, not multiple conviction. To avoid double punishment, a sentencing court applying section 654 will impose the sentence for one offense while staying the imposition of the sentence on the other offense.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 336

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311–312

People v. Mathis (2025) 111 Cal.App.5th 359, 367

Third Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. The court’s express or implied findings in support of its determination that section 654 does not apply will be upheld on appeal if substantial evidence supports them. The applicability of section 654 to settled facts presents a question of law.

Authority:

People v. Cruz (2020) 46 Cal.App.5th 715, 737

People v. Harrison (1989) 48 Cal.3d 321, 335

Fourth Holding:

Where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654. However, in the absence of some circumstance foreclosing its sentencing discretion a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. Indeed, a court may even rely on facts underlying verdicts of acquittal in making sentencing choices.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1339-1340

Fifth Holding:

If multiple offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. However, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Gaynor (2019) 42 Cal.App.5th 794, 800 [even if a course of conduct is directed to one objective, it may give rise to multiple violations and punishment if it is divisible in time]

People v. Goode (2015) 243 Cal.App.4th 484, 492 [If the offenses were committed on different occasions, they may be punished separately]

People v. Gaio (2000) 81 Cal.App.4th 919, 935

People v. Louie (2012) 203 Cal.App.4th 388, 399 [If the separation in time afforded the defendant an opportunity to reflect and to renew the defendant’s intent before committing the next crime, a new and separate crime is committed.]

Discretion, Probation Parole PRCS, Standard of review

Case: 000244

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing a probation condition that required the defendant to submit to searches of her computers, recordable media, and electronic devices. The electronic search condition is not reasonably related to criminality. Because we conclude the electronic search condition is unreasonable under the Lent test, we do not consider whether it is unconstitutionally overbroad. Accordingly, we reverse the judgment of conviction in part and remand with instructions to strike the electronic search condition and consider whether a more narrowly tailored or alternative condition would be reasonable.

First Holding:

In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid. Generally, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Second Holding:

A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Third Holding:

We review conditions of probation for abuse of discretion. Specifically, we review a probation condition for an indication that the condition is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

Fourth Amendment, Standard of review

Case: 000241

Posted on by Gary McCurdy

Error and/or relief

The officer stopped the defendant’s vehicle for having a nonfunctioning rear license plate light. The detaining officer prolonged the stop without the reasonable suspicion necessary to justify detouring from the traffic stop’s mission. Accordingly, we reverse the judgment, and we remand the matter to allow the defendant to withdraw the guilty plea and with directions to the trial court to enter a new order granting his suppression motion.

First Holding:

In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. In doing so we do not consider each fact in isolation. Instead, we must consider the totality of the circumstances—the whole picture.

Authority:

PEN 1538.5

People v. Flores (2024) 15 Cal.5th 1032, 1043

Second Holding:

A traffic stop that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure for a traffic violation justifies a relatively brief encounter for police investigation of the traffic violation.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669–670

Third Holding:

The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669–670

Fourth Holding:

Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. The temporary detention may also include a criminal history check, which is done by consulting an in-car computer terminal or radioing dispatch. And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer. These tasks are included within the officer’s mission during a traffic stop because they serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669–670

Fifth Holding:

An officer may also require a lawfully stopped driver to exit the vehicle for officer safety to complete his traffic stop mission. On-scene investigation into other crimes, however, detours from the traffic stop’s mission. So too do safety precautions taken in order to facilitate such detours. While an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, the officer may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669–670

Duty of counsel, Immigration, Standard of review

Case: 000240

Posted on by Gary McCurdy

Error and/or relief

The defendant entered the United States in 1991 and obtained permanent residency in the mid-2000s. She was convicted by plea in 2009 of grand theft and was ordered to serve one year in the county jail as a condition of probation. At the time of her plea, she was advised under section 1016.5 that conviction may have the consequences of deportation, exclusion of admission to the United States, or denial of naturalization. There was no indication that her then-attorney discussed immigration consequences with her. She was not aware that a jail term of 364 days instead of 365 days would have made a difference regarding her immigration status.

Because service of at least 365 days in custody constitutes an aggravated felony, in 2010 she was notified by immigration authorities that she was subject to removal. She conceded removability and was deported. In 2023, someone she had kept in contact with over the years suggested she contact the public defender. She did, and a petition to vacate her conviction was filed under section 1473.7 Based on our independent review, we conclude the defendant has shown prejudicial error based on the totality of the circumstances. It was error to deny the defendant’s petition under section 1473.7 to vacate her conviction because prejudicial error impaired her ability to understand the immigration consequences of her plea.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. If the required showings are made, the court must vacate the conviction or sentence.

Authority:

PEN 1473.7(a)(1), (e)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

Appeals from section 1473.7 hearings are subject to independent review. Under this standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. We give deference to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed. But when 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

Third Holding:

Subject to statutory exceptions, a motion to vacate based on immigration consequences shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody. The exceptions state the motion may be deemed untimely filed if it was not filed with reasonable diligence after the later of several events: receipt of a notice to appear in immigration court, notice from immigration authorities asserting adverse consequences from the conviction or sentence, or notice of a final removal order.

Authority:

PEN 1473.7(b)(1) and (b)(2)

Fourth Holding:

The statutory exceptions to timeliness do not apply here. Because the defendant was given notice of immigration consequences before the 2017 effective date of section 1473.7, the test is: What event in her life that occurred after section 1473.7 became effective would have given her a reason to look for the existence of new legal grounds for relief or, at a minimum, put her on notice of the need to investigate? We assess the reasonableness of the petitioner’s diligence from that point forward. In so doing, we must take into account the totality of the circumstances. The record does not suggest some event occurred between the time the legislation became effective in 2017 and her contact with her attorney in 2023 that put her on notice. We conclude the motion was timely.

Authority:

People v. Alatorre (2021) 70 Cal.App.5th 747, 762, 765-766

Fifth Holding:

Relief pursuant to section 1473.7 requires that the defendant show 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. Because the defendant’s conviction of theft with a one-year sentence constituted an aggravated felony, she was subject to mandatory deportation and permanent exclusion from the United States and was also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country.

Authority:

8 U.S.C. 1101(a)(43)(G)

8 U.S.C. 1227(a)(2)(A)(iii)

8 U.S.C. 1229b(a)(3), (b)(1)(C)

People v. Carrillo (2024) 101 Cal.App.5th 1, 15

Sixth Holding:

A defendant seeking section 1473.7 relief must demonstrate that the error is prejudicial, meaning a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. This might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences. Relief is available if the defendant establishes he or she would have rejected the existing bargain to accept or attempt to negotiate another.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316

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

People v. Martinez (2013) 57 Cal.4th 555, 559

Seventh Holding:

Her ignorance of the immigration consequences of her conviction and sentence was an error that damaged her ability to meaningfully understand and knowingly accept those consequences. A showing of ineffective assistance of counsel was not required because the motion was based on the inadequate advisement by the trial court that the conviction may have immigration consequences and the defendant’s own error in not knowing that her plea would subject her to mandatory deportation and permanent exclusion from the United States. There was no indication her attorney considered the immigration consequences of her plea even though a social worker had expressed concern and the defendant had expressed concern to probation. This failure impeded the defendant’s ability to understand the consequences of her plea.

Authority:

PEN 1473.7(a)(1)

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

People v. Padron (2025) 109 Cal.App.5th 950, 960–961

Eighth Holding:

Defense counsel has a duty to advise criminal defendant clients of the immigration consequences.

Authority:

PEN 1016.2

PEN 1016.3

Padilla v. Kentucky (2010) 559 U.S. 356, 371

People v. Carrillo (2024) 101 Cal.App.5th 1, 17-18

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

Case: 000232

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for mental health diversion because substantial evidence did not support the court’s conclusion that his mental illnesses were not a significant factor in the commission of the underlying offenses.

First Holding:

In 2018, the Legislature enacted provisions to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

PEN 1001.35

PEN 1001.36

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

Section 1001.36 provides that a defendant is eligible for pretrial diversion if the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert, and the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

If the defendant is eligible, the court also must determine whether the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. Therefore, we review a trial court’s factual findings in support of its ruling for substantial evidence.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Fourth Holding:

The trial court failed to apply the presumption that, given the timely diagnoses of mental health disorders, the mental condition contributed to his behavior. The burden then was on the prosecution to rebut the presumption by producing clear and convincing evidence tha there was no causal connection.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fifth Holding:

However, while eligibility and suitability are preconditions, mental health diversion remains discretionary even if they are met. Because of the existence of this residual discretion, the proper remedy is to remand with instructions for the trial court to consider both eligibility and suitability, along with making relevant findings, in accordance with the current law.

Authority:

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Discretion, Sentencing, Standard of review

Case: 000230

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on the recall of his sentence under section 1172.75, the court failed to recalculate his custody credits upon resentencing. We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. When a defendant is imprisoned and later resentenced, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

We review a trial court’s decision not to strike a prior felony conviction for abuse of discretion. It is the defendant’s burden on appeal to show that the sentencing decision was irrational or arbitrary. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. In addition, we will not reverse a trial court’s sentencing decision merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371, 376-377