Category Archives: Standard of review

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if the 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. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

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

Third Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

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

Amelioration, Discretion, Sentencing, Standard of review

Case: 000210

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s sentence and remand for full resentencing. The trial court abused its discretion when declining to fully strike the firearm enhancement or strike it and impose a lesser firearm enhancement. The trial court errantly focused only on the defendant’s past and present danger to public safety, and not whether striking the enhancement would endanger public safety in the future. The trial court erred in deciding whether striking the enhancement would endanger public safety because, as the record of the sentencing hearing indicates, it focused solely on defendant’s past conduct and the circumstances of the murder. In the context of section 1385, the key question is forward looking—whether striking the enhancement would likely endanger public safety. Thus, even if the trial court struck the enhancement, the defendant would still be serving an indeterminate 15-to-life term with parole eligibility subject to the Parole Board and Governor’s review. The trial court must consider this future-looking issue for purposes of public safety.

First Holding:

A trial court’s decision not to dismiss an enhancement pursuant to section 1385 is reviewed for abuse of discretion. An abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard. A court acting while unaware of the scope of its discretion is understood to have abused it.

Authority:

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

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

People v. Tirado (2022) 12 Cal.5th 688, 694 [reminding that a defendant is entitled to sentencing decisions made by a court exercising informed discretion]

Second Holding:

Effective January 1, 2022,Penal Code section 1385 was amended to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. It reads, in part, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so …. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless 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.” Subparagraphs (A) to (I) list nine distinct mitigating circumstances, including, as is relevant here, subparagraph (C) where the application of an enhancement could result in a sentence of over 20 years. Subparagraph (C) states in this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

People v. Sek (2022) 74 Cal.App.5th 657, 674

Third Holding:

Although the current dangerousness of the defendant 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. For a defendant facing a lengthy indeterminate sentence, the inquiry should also take into account that the defendant’s release from prison is contingent on review by the Board of Parole Hearings (and for murder convictions, by the Governor), who will have the opportunity to assess the defendant’s dangerousness at that time. This future review will act as a safety valve against a release that would endanger the public and is relevant to a trial court’s analysis of whether the dismissal of an enhancement imposed on a defendant serving an indeterminate prison term will endanger public safety.

Authority:

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

 

Amelioration, Duty of the court, Fifth Amendment, Retroactivity, Sentencing, Standard of review

Case: 000206

Posted on by Gary McCurdy

Error and/or relief

The true findings on the gang enhancements and gang-related firearm enhancements are vacated. The sentence is vacated, and the case is remanded. On remand, the People may retry the enhancement allegations under the law as amended by AB 333. If the People do not retry the enhancements, or at the conclusion of a retrial, the trial court shall conduct a full resentencing.

First Holding:

Several years after the defendant was sentenced, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) recommended recall and resentencing pursuant to Penal Code section 1172.1(a)(1), based on the defendant’s exceptional conduct while incarcerated. The trial court recalled the sentence and resentenced him to 40 years to life, despite the recommendation by both parties that the sentence be reduced to a determinate term less than half that 40-year minimum. The trial court erred in not examining the impact of AB 333, which amended the gang activity statutes significantly. When the defendant’s sentence was recalled, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and the defendant regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture. The defendant is entitled to the benefits of AB 333’s ameliorative changes to section 186.22.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161–162

People v. Corpening (2016) 2 Cal.5th 307, 312 [the application of law to undisputed facts is a question of law subject to de novo review]

Second Holding:

The evidence adduced at the defendant’s trial was insufficient to establish that the predicate offenses benefitted the gang beyond enhancing its reputation. Accordingly, we must vacate the true findings on the gang enhancements under section 186.22(b)(1), as well as the true findings on the gang-related firearm enhancements under section 12022.53(b), (c), (d), and (e)(1).

Authority:

People v. Lee (2022) 81 Cal.App.5th 232, 239–240

People v. Perez (2022) 78 Cal.App.5th 192, 206, fn. 11

Third Holding:

Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial. Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 669-670

Fourth Holding:

Whether the People decide not to retry the enhancements, or at the conclusion of such a retrial, the defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000202

Posted on by Gary McCurdy

Error and/or relief

The trial court’s finding that the People provided clear and convincing evidence to rebut the statutory presumption that defendant’s mental disorder was a significant factor in his commission of the offenses was not supported by substantial evidence. We remand to the trial court for a new diversion eligibility hearing under section 1001.36. If the court determines that defendant is eligible for diversion, it may grant his application. If the court determines defendant is ineligible, defendant’s convictions and sentence shall be reinstated.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants with qualifying mental disorders. To be eligible for mental health diversion, a defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders and the defendant’s mental disorder must be a significant factor in the commission of the offense. There is a presumption that a defendant’s mental disorder diagnosis, if the diagnosis occurred within the past five years, was a significant factor in the commission of the offense. Once a presumption is established, it is the People’s burden to provide clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor to overcome it.

Authority:

PEN 1001.35

PEN 1001.36

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 678

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

We review a trial court’s ruling on an application for mental health diversion for an abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

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

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Third Holding:

In reviewing a trial court’s finding that a fact has been proven by clear and convincing evidence, the question before us is whether the record contains evidence from which a reasonable fact finder could have found it highly probable that the disputed fact was true. We view the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence. Those inferences must be drawn from evidence rather than speculation

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fourth Holding:

The absence of evidence proving that defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.

Authority:

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000200

Posted on by Gary McCurdy

Error and/or relief

The defendant’s sentence on two firearm enhancements and one possession of an explosive device should have been imposed and stayed pursuant to Penal Code section 654. We modify the judgment accordingly.

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.

Authority:

PEN 654

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. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

Authority:

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

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses.

Authority:

People v. Islas (2012) 210 Cal.App.4th 116, 129

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fourth Holding:

The sentences on each of three counts were based on his simultaneous possession of two completed assault rifles, and we assume that such possession can constitute two physical acts for the purposes of section 654. Even so, multiple punishment can be imposed consistent with section 654—on two of the three counts —only if substantial evidence in the record supports an implied finding that he had a separate objective in possessing one firearm versus the other. Our review of the record reveals no such evidence. Section 654 also prohibits multiple punishment for both possession of an explosive device and possession of ingredients to make an explosive device, because the explosives the defendant possessed were not actually capable of exploding, and thus identical evidence supported both counts. Both counts were based on the defendant’s possession of the ingredients in the box truck, at the same time and place, and under the same circumstances. Both counts were based on, essentially, the same course of conduct.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 358 [suggesting simultaneous possession of different items of contraband’ are separate acts for purposes of section 654]

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fifth Holding:

Because it is apparent from the sentence imposed that the sentence would be little changed as a result of remand, in the interests of judicial economy, and given that the parties agree on this remedy, we will modify the judgment to stay the sentences on counts 5 and 6 rather than remand for resentencing.

Authority:

PEN 1260 [authority to modify unauthorized sentence]

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of the penalty imposed is the preferred remedy for section 654 error where the reduction in sentence would be relatively minor because in such cases, it would not serve the interests of justice or judicial economy to require remand]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority to modify judgment to impose and stay sentence under section 654 rather than remand for resentencing that will not change defendant’s actual prison time]