Category Archives: Standard of review

Appellate Principles, Racial Justice Act, Standard of review

Case 000770

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a motion in the trial court for postjudgment discovery pursuant to Penal Code section 1054.9, in advance of filing a petition for writ of habeas corpus. The defendant alleged he was arrested, charged, and convicted as a result of racial bias by the police department and the district attorney, and that his defense counsel was prejudicially ineffective. He appealed from the court’s denial of a portion of his motion. It was not an appealable order. We treat this as a petition for writ of mandate.

(Gary note: The court denied the petition, but I have included the “gold”–its principles–for educational reasons. Which is really the point of this entire blog, of course.)

First Holding:

A party must seek review of the trial court’s denial of a section 1054.9 motion for postconviction discovery by filing a petition for writ of mandate rather than an appeal.

Authority:

In re Steele (2004) 32 Cal.4th 682, 688

People v. Serrano (2024) 106 Cal.App.5th 276, 292

Second Holding:

Given the procedural background of this case, rather than dismiss the appeal, we exercise our discretion to treat it as a petition for writ of mandate in the interests of judicial economy.

Authority:

People v. Payne (1988) 202 Cal.App.3d 933, 937

People v. Picklesimer (2010) 48 Cal.4th 330, 335

Third Holding:

A motion for postjudgment discovery filed pursuant to section 1054.9 may be made in anticipation of filing a petition for writ of habeas corpus but before the petition is actually filed. However, the statute provides only limited discovery. It does not allow free-floating discovery asking for virtually anything the prosecution possesses.

Authority:

In re Steele (2004) 32 Cal.4th 682, 691

Barnett v. Superior Court (2010) 50 Cal.4th 890, 894

Fourth Holding:

The trial court’s ruling on a motion under section 1054.9 is reviewed for an abuse of discretion.

Authority:

Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366

Gary Note:

(Gary note: I wrote a Gary Musings on the code section at issue here, focusing on the statutory duty it imposes on counsel to retain a copy of [insert appropriate adjective, depending on how YOU read the subdivision, but for lack of a better term at the moment, “certain” will do] clients’ files in a digital format in color. It went up on the blog on June 21, 2026, under the category “Gary Musings.” The article’s title is “To Save, Or Not To Save (the client’s file).”)

Elements of crime, Juveniles, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000768

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the allegation that the minor received stolen property in violation of section 496d(a) (pertaining to the vehicle in which he was a passenger).

First Holding:

The same standard governs review of the sufficiency of the evidence in adult criminal cases and juvenile cases. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

While substantial evidence includes circumstantial evidence and reasonable inferences drawn therefrom, such inferences may not be based on suspicion alone, or on imagination, or speculation.

Authority:

In re Amanda A. (2015) 242 Cal.App.4th 537, 545-546

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

People v. Grant (2020) 57 Cal.App.5th 323, 330

Second Holding:

To sustain the petition on the receiving a stolen vehicle count, the People had to prove: (1) the motor vehicle was stolen; (2) the minor knew it was stolen; and (3) the minor received, concealed, or withheld the stolen vehicle from its owner.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224

In re Anthony J. (2004) 117 Cal.App.4th 718, 728

Third Holding:

Receipt, or possession of stolen property, may be actual or constructive and need not be exclusive. Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.

Constructive possession occurs when the defendant maintains control or a right to control the property; possession may be imputed when the property is found in a place that is immediately and exclusively accessible to the defendant and subject to his or her dominion and control, or to the joint dominion and control of the defendant and another.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224 [construing similar language in context of sec. 496, general receiving stolen property statute]

People v. Rushing (1989) 209 Cal.App.3d 618, 621-622

Fourth Holding:

Possession may be established through circumstantial evidence and resulting reasonable inferences. However, mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. Something more must be shown to support inferring of dominion and control. The necessary additional circumstances may, in some fact contexts, be rather slight.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 224

People v. Myles (1975) 50 Cal.App.3d 423, 429 [evidence the defendant was passenger in car and found standing close to car trunk containing stolen goods insufficient to infer possession for conviction of receiving stolen property]

People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence defendant was passenger in car with stolen chain saw in rear seat insufficient evidence to infer his possession of stolen item]

Fifth Holding:

The car was stolen and the minor knew the car was stolen, but there is no substantial evidence that the minor possessed or aided in withholding the car from its owner.

While it is true that conscious possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen, the issue here is whether, as a mere passenger, he actually or constructively possessed the stolen car as a section 496d conviction requires.

Aiding and abetting the commission of a crime requires some affirmative action. Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

There was no evidence to show the minor directed the driver to speed away from the pursuing officers or otherwise directed any movement of the Infiniti as a passenger. There was no evidence that the minor had an opportunity to get out of the car before the traffic stop, or once the driver sped away from the officers.

The record is also devoid of any evidence regarding the minor’s relationship to any of the other occupants of the car, and the gang expert conceded the minor had no documented gang-related contacts apart from this one incident.

Absent evidence showing the nature and extent of the relationship between the minor and the other occupants, or the circumstances of the minor’s affirmative actions beyond simply running from the Infiniti, we conclude the evidence established nothing more than that the minor was a passenger in the stolen car, but not that he aided and abetted in the vehicle theft or in withholding the stolen vehicle from its rightful owner.

Authority:

People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574

People v. Anderson (1989) 210 Cal.App.3d 414, 420-421

People v. Partee (2020) 8 Cal.5th 860, 868

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1039 [presence at crime scene, by itself, is insufficient to establish aiding and abetting; relevant factors for determining aider and abettor liability may include presence, companionship, and conduct before and after offense]

Abstracts and Minutes, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Sentencing, Standard of review

Case 000764

Posted on by Gary McCurdy

Error and/or relief

The court erred by not staying punishment for the second count under section 654. Also, the court must recalculate the credit for time served on resentencing. Further, the abstract of judgment erroneously reflects that the defendant stands convicted of a count that was reversed in the prior appeal.

(Gary note: This was mentioned only in a footnote, and there was no express direction for correction. But the court did order resentencing “consistent with this opinion,” which most likely implies a direction that the subsequent abstract of judgment accurately reflect the record.)

First Holding:

Section 654(a) states 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.

Authority:

PEN 654(a)

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. At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.

When those facts are undisputed the application of section 654 raises a question of law we review de novo. However, we review the trial court’s factual findings for substantial evidence.

Authority:

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

People v. Washington (2021) 61 Cal.App.5th 776, 795

Third Holding:

A review of the record indicates that there was but one act constituting the crime. Accordingly, the sentence on count 2 should have been stayed.

Authority:

PEN 654

Fourth Holding:

While we do not address the trial court’s failure to recalculate the defendant’s actual days of presentence custody credits because it was not raised by the defendant and we are remanding the matter for resentencing, we note that trial courts are required to do so.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Fifth Holding:

(Gary note: the court mentioned in a footnote that the abstract incorrectly lists a conviction of an offense that was reversed in a prior appeal. It made no express direction for correct of the abstract, but there is much authority that would have supported such an order, some of which I set forth below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Sentencing, Standard of review

Case 000757

Posted on by Gary McCurdy

Error and/or relief

While affirming the lower court’s finding that section 654 did not apply, it did find that the sentence for the second count was unauthorized, as the trial court purported to impose one-third the middle term to be served concurrently with the other count. It should have imposed a full term to run concurrently, as the one-third the middle term calculation applies only when sentences are to be served consecutively.

First Holding:

A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. An appellate court can correct an unauthorized sentence on appeal when such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3 [vacating and correcting the unauthorized sentence rather than remanding for resentencing because the record clearly reflects the trial judge’s intention to run the unauthorized sentence concurrently and not impose any additional consecutive time]

Second Holding:

The imposition of one-third the middle term for subordinate offenses applies in case of consecutive, but not concurrent, sentences. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

As such, imposition of one-third the midterm sentence on a concurrent term is an unauthorized sentence. However, remand for resentencing is unnecessary because the record clearly indicates that the trial court intended to run the sentence on his possession of a firearm conviction concurrently and not impose any additional consecutive time.

Authority:

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Third Holding:

Section 654(a) provides 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. The statute therefore precludes multiple punishments for a single act or indivisible course of conduct. Multiple punishment includes the imposition of both concurrent and consecutive sentences because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Jones (2012) 54 Cal.4th 350, 353, 358

Fourth Holding:

The proscription against double punishment in section 654 is applicable where there is a course of conduct which … comprises an indivisible transaction punishable under more than one statute.… The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.

Authority:

People v. Bauer (1969) 1 Cal.3d 368, 376

Fifth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. In the context of a conviction for possession of a firearm by a felon, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268

People v. Bradford (1976) 17 Cal.3d 8, 22

Sixth 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. Its findings will not be reversed on appeal if there is any substantial evidence to support them. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. The evidence in this case indicates that the defendant bought the firearm and possessed it for a substantial period before the shooting, not simply during the shooting.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 [courts have determined that section 654 applies where the defendant obtained the prohibited weapon during the assault in which he used the weapon]

Jury trial, Standard of review

Case 000754

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously overruled the defendant’s objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror because the main reason given by the prosecutor for exercising the challenge was presumptively invalid under Code of Civil Procedure section 231.7. The record did not contain clear and convincing evidence rebutting the presumptive invalidity of the challenge.

First Holding:

Code of Civil Procedure section 231.7 prohibits the use of a peremptory challenge on the basis of a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Authority:

CCP 231.7

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Second Holding:

Upon objection to the exercise of a peremptory challenge pursuant to CCP 231.7, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court must then evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given.

If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. For purposes of section 231.7, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

Authority:

CCP 231.7

Third Holding:

Section 231.7 also contains two separate provisions describing presumptively invalid reasons for the exercise of a peremptory challenge. Each subdivision sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

The challenge of a prospective juror who expresses a distrust of or having a negative experience with law enforcement or the criminal legal system is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case

Authority:

CCP 231.7(e) and (g)

People v. Alston (2026) 118 Cal.App.5th 575, 581

Fourth Holding:

The denial of an objection made under CCP section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.

The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fifth Holding:

The defendant did not forfeit review of this issue, because his attorney’s general objection to the exercise of the peremptory challenge was sufficient to preserve the issue in this case.

Authority:

People v. Jaime (2023) 91 Cal.App.5th 941, 946 [forfeiture rule applies to section 231.7 claims]

People v. Espiritu (2026) 119 Cal.App.5th 1128 [The court was not confronted with a situation in which a defendant wholly failed to object “under the applicable statute. Rather, the defendant’s general objection was sufficient to preserve an argument alleging error based on a category of presumptively invalid reasons not brought to the trial court’s attention by defense counsel.]

Sixth Holding:

An objection to a peremptory challenge must be sustained whenever any reason identified for the challenge becomes conclusively invalid under section 231.7(g), regardless of whether the party exercising the peremptory challenge also identifies facially neutral reasons that do not fall within the scope of subdivision (g). Under the circumstances in this case, the defendant’s objection to the peremptory challenge was erroneously overruled, and prejudicially so. We reverse the judgment and remand for a new trial.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 896

Amelioration, Standard of review

Case 000750

Posted on by Gary McCurdy

Error and/or relief

The trial court erred because the record of his conviction does not establish his ineligibility for resentencing under section 1172.6 as a matter of law. Remanded for the court to hold an evidentiary hearing on the defendant’s petition.

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas. First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189, subdivision (e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (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. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

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

Second Holding:

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine, which makes an accomplice guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the natural and probable consequence of the crime the accomplice aided and abetted (i.e., the nontarget offense). Thus, under prior law, a defendant who aided and abetted an intended assault could be liable for murder, if the murder was the natural and probable consequence of the intended assault.

Authority:

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

Third Holding:

SB 1437 also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to ask the trial court to vacate their conviction and resentence them. As relevant here, the statute provides that a person convicted of felony murder may file a petition to have his or her conviction vacated when: (1) the charges filed against the person allowed the prosecution to proceed on a theory of felony murder; (2) the person was convicted of murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of murder; and (3) the person could not presently be convicted of murder because of changes to section 189 made effective January 1, 2019.

Authority:

PEN 1172.6

People v. Das (2023) 96 Cal.App.5th 954, 959

Fourth Holding:

After briefing on a defendant’s petition, the trial court must hold a hearing and determine whether the petitioner has made out a prima facie case for relief. If the petition and record “establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty under a still-valid theory of murder. If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6

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

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. At the prima facie 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.

Authority:

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

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

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Seventh Holding:

Contrary to the trial court’s finding, the bare record does not establish that the defendant was the actual killer. Section 12022.53(b) does not require personal use of a firearm causing death or great bodily injury. Rather, the enhancement only requires that the defendant personally uses a firearm in the commission of a felony. Our Supreme Court has held that the similar enhancement for personal use of a firearm in section 12022.5 does not in itself prove a defendant was the actual killer. In fact, section 12022.53(b) states that the firearm need not be operable or loaded for the enhancement to apply.

Accordingly, defendant’s admission to this enhancement cannot establish conclusively that he actually killed the murder victim. Also, the generic murder charge in the information did not limit the People to prosecuting defendant under any particular theory of murder because neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded.

And the defendant’s plea by itself establishes only that a murder with malice was committed and that he committed an act with the necessary intent to render him liable for that murder under then-existing law. The record contains no preliminary hearing transcript or plea hearing transcript from which we can discern any further information about the basis for defendant’s plea. Nor does the defendant’s plea to attempted murder necessarily establish that he had the intent to kill.

Authority:

People v. Jones (2003) 30 Cal.4th 1084, 1120

People v. Rivera (2021) 62 Cal.App.5th 217, 233, review granted June 9, 2021, S268405

People v. Eynon (2021) 68 Cal.App.5th 967, 977

People v. Patton (2025) 17 Cal.5th 549, 564 [unchallenged, relief-foreclosing facts within a preliminary hearing transcript may refute conclusory, checkbox allegations at prima facie stage]

People v. Ramos (2024) 103 Cal.App.5th 460, 463, 466 [defendant admitted during plea hearing that he aided/abetted, with the specific intent to kill, the attempt to kill the victim]

People v. Fisher (2023) 95 Cal.App.5th 1022, 1025, 1030 [defendant admitted during plea hearing that he shot and killed both murder victims and shot and injured the attempted murder victim]

People v. Montes (2021) 71 Cal.App.5th 1001, 1007 [because jury was instructed on natural and probable consequences doctrine, guilty verdict for attempted murder does not necessarily establish intent to kill]

Discretion, Standard of review

Case 000749

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion by basing its denial on findings not supported by substantial evidence and by exercising its discretion in a manner inconsistent with the principles and purpose of the statute.

(Gary’s note: The conclusion that the court abused its discretion relied extensively on facts reviewed by the Court of Appeal. These summaries are designed more to recite the various principles than to ferret out exactly how the principles achieved the result in the particular case. Sometimes it is obvious, but many times the outcome is very fact-dependent. Since these unpublished opinions cannot be cited as authority, it serves little purpose to recite the extensive details that led to the result in a particular case.)

First Holding:

We review a trial court’s order denying 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.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

People v. Moine (2021) 62 Cal.App.5th 440, 448

Second Holding:

Mental health diversion under section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. A defendant is eligible for mental health diversion if both of the following criteria are met: (1) defendant presents evidence he or she has been diagnosed with a mental disorder by a qualified mental health expert, identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSMD), within the last five years and (2) defendant’s mental disorder was a significant factor in the commission of the charged offense.

A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

Authority:

PEN 1001.36(b)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

As to suitability, each of the following criteria must be met: (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 their 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.

In determining whether the defendant poses an unreasonable risk of danger to public safety, the court may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Authority:

PEN 1001.36(c)

Fourth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. This residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134-135

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891 [court’s discretion must be informed by legal principles and purpose of statute]

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 [all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue]

Fifth Holding:

The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved. 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.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

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

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

Discretion, Due process, Duty of the court, Standard of review

Case 000745

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion and violated his right to due process when it denied a continuance to investigate and file a motion for a new trial after granting his motion to represent himself.

First Holding:

We review a trial court’s decision granting or denying a continuance for an abuse of discretion. Absent a showing of an abuse of discretion and prejudice, we will not reverse the trial court’s decision.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Doolin (2009) 45 Cal.4th 390, 450

Second Holding:

A trial court’s decision that is deemed an abuse of discretion has been described as a decision that exceeds the bounds of reason or as one that is arbitrary, capricious, patently absurd, or even whimsical. A court’s discretion, however, is not a whimsical, uncontrolled power. T

he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of the action. The court’s proper exercise of its discretion, therefore, requires knowledge and consideration of the legal principles essential to an informed, intelligent and just decision.

Where a ruling transgresses the confines of the applicable principles of law defining the scope of discretion, the court abuses its discretion.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 609

People v. Jacobs (2007) 156 Cal.App.4th 728, 737

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

People v. Lara (2001) 86 Cal.App.4th 139, 165

Third Holding:

In deciding whether to grant a continuance, trial courts may not exercise their discretion in such a manner as to deprive the defendant or defendant’s counsel of a reasonable opportunity to prepare.

That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel. The opportunity to prepare is no less fundamental when a defendant elects to proceed pro se.

While it is true that a defendant, who chooses to conduct his defense in pro. per. does so subject to the disabilities normally attendant upon the status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.

The denial of a continuance after a trial court grants a defendant’s request for self-representation could deprive a defendant of the opportunity to prepare a defense. To deny him that opportunity would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.

Therefore, when a trial court grants a defendant’s request to proceed pro se, it has been held an abuse of discretion and a denial of due process to deny a request for a reasonable continuance to allow the in propria persona defendant to prepare a defense.

Authority:

People v. Sakarias (2000) 22 Cal.4th 596, 646

People v. Maddox (1967) 67 Cal.2d 647, 652, 653-655

People v. Cruz (1978) 83 Cal.App.3d 308, 324

People v. Wilkins (1990) 225 Cal.App.3d 299, 304-305

People v. Hill (1983) 148 Cal.App.3d 744, 756, 757

Fourth Holding:

Courts have made an exception only where the record demonstrates the trial court expressly conditioned the granting of an untimely Faretta motion on the defendant’s express waiver of a continuance.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Jenkins (2000) 22 Cal.4th 900, 1038 [court warned the defendant that a request for a continuance would be a basis for denying Faretta motion, and the defendant accepted pro se status on the understanding that no additional time would be granted]

People v. Clark (1992) 3 Cal.4th 41, 110 [court granted Faretta motion only after the defendant “expressly represented he was able to proceed without a continuance], overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462

People v. Rudd (1998) 63 Cal.App.4th 620, 626 [Faretta motion granted only after the defendant expressly stated he would be able to proceed without a continuance]

Fifth Holding:

The denial of a continuance may be so arbitrary as to deny due process. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Instead, the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 921

Sixth Holding:

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. Such an abuse of discretion occurs when the court bases its decision on an incorrect legal standard.

Authority:

People v. Iraheta (2014) 227 Cal.App.4th 611, 619

Seventh Holding:

To be sure, the text of section 1181 expressly limits the grant of a motion for new trial to the nine grounds enumerated in the statute. And ineffectiveness of trial counsel is not one of them.

Trial courts, however, have a duty to ensure that a trial is conducted with solicitude for the essential rights of the accused. That includes the right to effective counsel.

The Legislature has no authority to limit by statute a court’s constitutional obligation to ensure that a defendant is accorded due process. Therefore, our Supreme Court has stated that section 1181 should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.

In appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.

Authority:

People v. Fosselman (1983) 33 Cal.3d 572, 582

People v. Clark (2016) 63 Cal.4th 522, 630

People v. Watts (2018) 22 Cal.App.5th 102, 117

Eighth Holding:

We take issue with the trial court’s determination that the defendant could raise the issues of ineffective assistance of counsel and late discovered evidence on appeal. Unless the record on appeal includes an explanation as to why trial counsel acted or failed to act in the manner challenged, or unless counsel was asked for an explanation and failed to provide one, a claim on appeal that trial counsel was ineffective is at risk of being rejected.

Under the circumstances in this case, the trial court abused its discretion and deprived the defendant of his right to due process. We remand the matter and direct the trial court to grant the defendant a reasonable continuance to investigate and file a motion for new trial.

Authority:

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective assistance of counsel are often more appropriately litigated in a habeas corpus proceeding]

Duty of counsel, Sixth Amendment, Standard of review

Case 000740

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding the defendant knowingly and intelligently waived his right to counsel.

First Holding:

A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. The Sixth Amendment guarantees a defendant a right to counsel but also allows him to waive this right and to represent himself without counsel.

Authority:

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

Second Holding:

In any case in which a Faretta request for self-representation has been made, the court must evaluate two countervailing considerations: on one hand, the defendant’s absolute right to counsel, which must be assiduously protected; on the other hand, the defendant’s unqualified constitutional right to discharge counsel if he pleases and represent himself.

The right to representation by counsel persists until a defendant affirmatively waives it, and courts indulge every reasonable inference against such waiver.

The waiver of counsel must be knowing and voluntary—that is, the defendant must actually understand the significance and consequences of the decision, and the decision must be uncoerced. The purpose of the knowing and voluntary inquiry is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

People v. Marshall (1997) 15 Cal.4th 1, 20 [Courts must indulge every reasonable inference against waiver of the right to counsel]

Third Holding:

When confronted with a request for self-representation, a trial court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

Nevertheless, no particular form of words is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.

Authority:

People v. Dent (2003) 30 Cal.4th 213, 217–218

Faretta v. California (1975) 422 U.S. 806,. 835

People v. Lawley (2002) 27 Cal.4th 102, 140

Fourth Holding:

On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation. The defendant bears the burden of affirmatively demonstrating the waiver was invalid.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Fifth Holding:

In Jackio, the court held that trial courts are required to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself.

In Bush, the court distinguished Jackio and held that, while the better practice would be to inform the accused, on the record, of the maximum sentence, including any maximum monetary fine that could be imposed on a conviction, we have not found any case specifically concluding that an advisement on this point is a constitutional minimum in every case.

Authority:

People v. Jackio (2015) 236 Cal.App.4th 445, 454

People v. Bush (2017) 7 Cal.App.5th 457, 473

Sixth Holding:

It is not entirely clear whether the invalid waiver is structural error that is reversible per se or whether the error should be reviewed for prejudice under the standard of Chapman, under which error is reversible unless harmless beyond a reasonable doubt.

We need not resolve that question because, even if the error was not structural, respondent has not shown the error was harmless beyond a reasonable doubt. The evidence against appellant was overwhelming. There is certainly a reasonable possibility that, faced with a sentence three times longer than he initially had in mind and with no plausible defense to the charges, appellant would have opted to forgo self-representation. And there is also a reasonable possibility appointed counsel could have negotiated a plea agreement with the prosecution that would have resulted in a sentence less than that appellant received.

Authority:

People v. Burgener (2009) 46 Cal.4th 231, 244 [acknowledging but not resolving split of authority]

People v. Ruffin (2017) 12 Cal.App.5th 536, 549