Category Archives: Standard of review

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

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

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

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

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

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

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Jurisdiction, Standard of review, Sufficiency of and substantial evidence

Case 000682

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to establish that one of the charged counts of aggravated sexual assault of a child based on sexual penetration took place within the jurisdiction of the superior court, and reverse the conviction on that count.

Holding:

There was insufficient evidence that more than one of the two counts of aggravated sexual assault of a child by sexual penetration occurred in a city in California, as opposed to Mexico.

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment and determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The victim’s answers to the questions indicated that at least one of the incidents occurred in California, but did not exclude the possibility that the other occurred in Mexico, outside the superior court’s jurisdiction.

Authority:

People v. Maciel (2013) 57 Cal.4th 482, 514–515

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

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Arellano (2024) 16 Cal.5th 457, 467–468

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

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

People v. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000673

Posted on by Gary McCurdy

Error and/or relief

The defense attorney provided ineffective assistance of counsel by failing to object to this inadmissible opinion testimony. On this unusual record, the defendant has established both deficient performance and prejudice under the Strickland standard for ineffective assistance. Accordingly, we reverse the judgment and remand for a new trial.

[Gary note: It is highly unusual for a court on direct appeal to find that counsel prejudicially provided ineffective assistance. Normally such challenges are denied on appeal, with the court perhaps mentioning that the defendant could pursue the claim through habeas corpus. I have chosen to include extensive passages, because even though any case is fact-specific, the principles announced along with the facts may be of value, should you at some point need to consider raising an IAC claim on direct appeal.]

First Holding:

The defendant’s evidentiary objections are forfeited because defense counsel did not object to any of the testimony that Seevers now challenges on appeal. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Accordingly, it is generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726

Second Holding:

We must therefore decide the defendant’s alternative claim of ineffective assistance of counsel. To prevail on his ineffective assistance claim under the Sixth Amendment, the defendant must establish that (1) his counsel’s performance was deficient, and (2) he was prejudiced as a result.

Deficient performance is established by showing that the attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Under Strickland’s prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694

Third Holding:

In assessing whether an attorney’s performance was deficient, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.

Further, competent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.  Thus, a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Nonetheless, deference to counsel’s performance is not the same as abdication. It must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. We may conclude, on direct appeal, that counsel’s performance was deficient if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Riel (2000) 22 Cal.4th 1153, 1197

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Jasso (2025) 17 Cal.5th 646, 676

Fourth Holding:

A lay witness may offer opinion testimony if it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’s testimony.However, lay opinion about the veracity of particular statements by another is inadmissible on that issue.

Authority:

EVID 800

People v. Jones (2017) 3 Cal.5th 583, 602

People v. Melton (1988) 44 Cal.3d 713, 744

Fifth Holding:

A lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence, nor does it bear on any of the other matters listed by statute as most commonly affecting credibility. Thus, such an opinion has no tendency in reason to disprove or prove the veracity of the statements. A lay witness may not express an opinion about the veracity of another person’s statement because the statement’s veracity is for the jury to decide.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1221

Sixth Holding:

A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. The reason for employing this rule is not because guilt is the “ultimate issue of fact” to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case.

Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

Authority:

People v. Duong (2020) 10 Cal.5th 36, 60

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

Seventh Holding:

The same rationale that prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.

Authority:

People v. Torres (1995) 33 Cal.App.4th 37, 47 [witness improperly expressed the opinion the crimes committed were robberies]

Eighth Holding:

Our inquiry is whether a witness has offered testimony that is tantamount to expressing an opinion as to defendant’s guilt.

Authority:

People v. Ward (2005) 36 Cal.4th 186, 210

People v. Vang (2011) 52 Cal.4th 1038, 1048

People v. Duong (2020) 10 Cal.5th 36, 61

Ninth Holding:

The investigator improperly expressed an opinion on the defendant’s guilt throughout his testimony. By asking the investigator whether any evidence exonerated the defendant, the prosecutor improperly elicited testimony that commented on the strength of the case against the defendant and the issue of whether he was guilty of the victim’s murder. By responding that he found no exonerating evidence, the investigator improperly expressed his personal opinion on evidence a factfinder could have viewed as exonerating.

Authority:

People v. Spence (2012) 212 Cal.App.4th 478

Tenth Holding:

Having determined that portions of the investigator’s testimony were objectionable because they either opined on witness credibility or opined on the defendant’s guilt, we conclude that there simply could be no satisfactory explanation for the failure of defense counsel to object.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 676

Eleventh Holding:

The investigator’s testimony opining on the defendant’s guilt and on the witnesses credibility was so central to the issues at trial and so damaging to the defense that any competent counsel would have objected.

We can conceive of no satisfactory explanation for defense counsel’s failure to object. The defendant has therefore satisfied the deficient performance prong of the Strickland standard.

Authority:

People v. Yates (2018) 25 Cal.App.5th 474, 488 [finding on direct appeal no conceivable satisfactory explanation for defense counsel’s failure to object to every instance in which prosecution experts related as true case-specific facts contained in hearsay statements]

Twelfth Holding:

Given the investigator’s lead role and extensive participation in the investigation and presence in court during the trial, his opinions on witness credibility, the absence of any exonerating evidence, and the conclusions to be drawn from the defendant’s statement were likely to hold special weight for the jury and created a risk that the jury would abdicate its role as the arbiter of credibility and guilt.

Authority:

People v. Rouston (2024) 99 Cal.App.5th 997, 1012

Thirteenth Holding:

The case against the defendant was weak because it rested primarily on the inconsistent testimony of witnesses with motives to be untruthful, no physical evidence corroborated any of their stories or otherwise implicated the defendant, no body was ever found, and no crime scene was ever identified.

Although, in certain circumstances, an investigating officer’s opinion on the defendant’s guilt may not have influenced the verdict in light of the overwhelming evidence against defendant, that situation is not present here. Because the case against the defendant was based on such a precarious foundation, jurors could well have been influenced by the investigator’s personal opinions as an experienced law enforcement officer who had spent countless hours on the investigation.

It is therefore reasonably probable that the defendant would have obtained a more favorable result at trial if defense counsel had objected to the investigator’s improper testimony opining on the veracity of the two witnesses’ statements, identifying the defendant as the person who committed the homicide, assuring the jurors he knew he had the right person, and concluding that no evidence exonerated the defendant.

Authority:

In re Edward S. (2009) 173 Cal.App.4th 387, 418 [the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility]

People v. Riggs (2008) 44 Cal.4th 248, 301

Discretion, Standard of review

Case 000672

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying his motion for mental health diversion because substantial evidence does not support the trial court’s finding that he posed an unreasonable risk of danger to public safety, as defined under section 1001.36.

First Holding:

In 2018, the Legislature enacted sections 1001.35 and 1001.36 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:

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

Second Holding:

As presently enacted, section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert.

Second, 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.

Authority:

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

Third Holding:

If a defendant meets these eligibility requirements, the court also must find that 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. 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:

PEN 1001.36(b)

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

Fourth Holding:

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). That provision of section 667 sets forth eight categories of offenses that are commonly referred to as “super strikes,” including any homicide offense, and including any attempted homicide offense, defined in sections 187 to 191.5, inclusive.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [noting that the “super strikes” include murder and attempted murder]

Fifth Holding:

Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the statutory requirements are met.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

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

Sixth 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.

In addition, we review a trial court’s factual findings in support of its ruling for substantial evidence.

On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

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

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

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Seventh Holding:

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals. Further, in the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893