Category Archives: Statutory interpretation

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is 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, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

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

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Sentencing, Statutory interpretation

Case 001045

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to decline to award conduct credit on two of the counts, because their offenses were not ineligible for conduct credit at the time they were committed. Further, it was error to issue a no-visitation order on behalf of a person who is no longer a minor.

First Holding:

As a result of amendments to the One Strike Law in 2006 (section 667.61) persons serving an indeterminate sentence under that section are not entitled to credit for time served beyond the actual days they were in custody. There is no reduction for good behavior or performing work.

Although section 667.61 as amended makes no mention of conduct credit, the amendment deleted a previous reference that limited the conduct credit to 15% of the sentence imposed. The legislative history does make it abundantly clear that the intent was to eliminate conduct credit for such persons.

Authority:

Penal Code section 667.61

People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268

People v. Adams (2018) 28 Cal.App.5th 170, 182

Second Holding:

The amendment cannot be applied retroactively. Both the federal and the California Constitutions prohibit ex post facto laws. The federal and California ex post facto clauses do not just bar retroactively increased prison terms. They also prohibit any law that retroactively disadvantages the offender by increasing the punishment for crimes committed before the law’s enactment.

Consequently, the ex post facto clauses prohibit any law that constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. As it is unclear whether the offenses described in two of the counts were committed before or after the amendment’s effective z People (September 20, 2006, as urgency legislation), conduct credit cannot be denied on those counts.

Authority:

U.S. Const., art. I, sec. 10, cl. 1

Cal. Const., art. I, sec. 9

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Weaver v. Graham (1981) 450 U.S. 24, 35-36

People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [agreeing that a change in law ending the defendant’s ability to earn good conduct credit violated the proscription against ex post facto laws]

Third Holding:

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. Consequently, when the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261 [Verdicts cannot be deemed sufficient to establish the z People of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurred on or after the z People of the punishment’s enactment]

Fourth Holding:

Under section 1202.5, if a defendant is sentenced to prison for committing a lewd act under section 288, and the victim is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.

As this section authorizes prohibitions against visitation with a child victim, it has been interpreted to apply only to victims who are under the age of 18 at the time of the contemplated visitation. Here, the victim was in her 20s at the time of sentencing, and the court therefore lacked authority to include her in the no-visitation order.

Authority:

PEN 1202.05

People v. Scott (2012) 203 Cal.App.4th 1303, 1323

Elements of crime, Sentencing, Statutory interpretation

Case 001016

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to issue protective orders, because the defendant was not convicted of a qualifying offense, and the person for whose benefit order was issued was not a victim of the defendant’s crime.

First Holding:

Section 136.2(i)(1) provides authority for the imposition of postconviction protective orders where a defendant is convicted of a qualifying domestic violence offense.

Authority:

PEN 136.2(i)(1)

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

Domestic violence is abuse committed against, among other categories of victims, a person with whom the defendant had a dating relationship. Domestic violence is abuse perpetrated against (a) a spouse or former spouse[; (b) a cohabitant or former cohabitant; (c) a person with whom the respondent is having or has had a dating or engagement relationship; (d) a person with whom the respondent has had a child; (e) [a] child of a party; or (f) any other person related by consanguinity or affinity within the second degree.

“Abuse” is the intentional or reckless causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Section 136(3) defines “victim” as any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other statute or of the United States is being or has been perpetrated or attempted to be perpetrated.

Thus, a postconviction protective order under section 136.2(i)(1) is authorized if: (1) the defendant has been convicted of one (or more) of the statutorily enumerated crimes; and (2) the protected person qualifies as a victim of said crime(s).

Authority:

PEN 13700

FAM 6211

People v. Walts (2025) 112 Cal.App.5th 127, 139

People v. Lopez (2022) 75 Cal.App.5th 227, 237

Third Holding:

Courts do not have inherent authority to issue a criminal protective order absent a statute authorizing such an order.

Authority:

People v. Corrales (2020) 46 Cal.App.5th 283, 286-287

Fourth Holding:

The defendant was not convicted of a domestic violence or other offense that authorized the court to issue a protective order under section 136.2(i)(1). His conviction did not justify a protective order. Nor was the protected person a victim of his crime.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901 [where the defendant’s convictions are not domestic violence offenses, the court does not have statutory authority to impose a postconviction protective order, and it must be stricken]

People v. Pena (2025) 113 Cal.App.5th 640, 648 [the Legislature amended section 136.2(i)(1), in 2018 to specify that a victim is only a victim of the crime the defendant was convicted of committing]

People v. Walts (2025) 112 Cal.App.5th 127, 143 [if there is no reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted is being or has been perpetrated or attempted to be perpetrated against a particular person, that person is not a victim and may not seek, or be named as protected party by, a protective order under section 136.2(i)(1)]

Abstracts and Minutes, Sentencing, Statutory interpretation

Case 001014

Posted on by Gary McCurdy

Error and/or relief

Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.

First Holding:

Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.

The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.

The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.

Authority:

PEN 2900.1

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33

Second Holding:

Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”

Authority:

PEN 2933.1

Third Holding:

The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.

Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.

If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

People v. Murphy (2001) 25 Cal.4th 136, 142

In re M.M. (2012) 54 Cal.4th 530, 536

In re DeLong (2001) 93 Cal.App.4th 562, 568

People v. Manzo (2012) 53 Cal.4th 880, 889

Fourth Holding:

Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”

We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.

Authority:

People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033

People v. Smith (2024) 100 Cal.App.5th 741, 760

In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

Fifth Holding:

Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.

Authority:

People v. Burke (1956) 47 Cal.2d 45

Sixth Holding:

The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

Seventh Holding:

The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.

Authority:

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

Elements of crime, Sentencing, Statutory interpretation

Case 000998

Posted on by Gary McCurdy

Error and/or relief

We must reverse the defendant’s conviction under section 4501(a) because it duplicates his conviction under section 4500.

First Holding:

The defendant was convicted of section 4500 and 4501. In essence, section 4500 provides that any person serving a life sentence who, with malice aforethought, commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by death or life without the possibility of parole. If the victim does not die within a year and a day, the punishment is life without the possibility of parole for nine years.

In essence, section 4501 provides that, except as provided in section 4500, a prisoner who commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by two, four, or six years, to be served consecutively.

Authority:

PEN 4500

PEN 4501

Second Holding:

Section 954 allows prosecutors to charge different statements of the same offense, but does not allow a defendant to be convicted for multiple statements of the same offense. A defendant cannot be convicted of two offenses if one is necessarily included in the other or if the legislature intended to define a single offense that can be committed multiple ways–in other words, if the convictions are different statements of the same offense.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 648-650

Third Holding:

There are two tests to determine whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test.

Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.

Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.

Authority:

People v. Reed (2006) 38 Cal.4th 1224, 1227–1228

Fourth Holding:

To determine if two convictions run afoul of section 954, we consider the elements as well as legislative intent. If one is a necessarily included offense of the other, they are not different offenses. Even if the elements differ, two offenses can be essentially the same if legislative intent shows this is so. We consider the text and structure of the statutes, the elements of the offenses, the punishments, the legislative history, and the historical context of the statutes’ enactment.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 637-638, 648

People v. Aguayo (2022) 13 Cal.5th 974, 982–983

Fifth Holding:

A defendant may be convicted only of section section 4501(a) or of section 4500, but not both for the same conduct. We direct the trial court to reverse the defendant’s conviction under section 4501(a) and to strike the sentence and any fees imposed in connection with that charge.

Authority:

People v. Nava (2007) 107 Cal.App.5th 624, 626

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

Case 000994

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Authority:

PEN 1473.7(a)

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

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

Second Holding:

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

Authority:

PEN 1473.7

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

Third Holding:

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

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

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

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

Authority:

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

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

Fourth Holding:

We evaluate prejudicial error under the totality of the circumstances.

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

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

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

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

Authority:

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

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

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

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

Fifth Holding:

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

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

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

Authority:

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

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

Sixth Holding:

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

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

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

Authority:

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

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

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

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

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

Seventh Holding:

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

Authority:

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

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

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

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

Eighth Holding:

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

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

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

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

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

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

(Just sayin’.

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

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

Authority:

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

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

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

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

Ninth Holding:

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

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

Authority:

PEN 1016.2

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

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

 

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.

We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.

First Holding:

The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.

Authority:

PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]

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

Second Holding:

We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.

Authority:

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

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

Third Holding:

The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.

Authority:

PEN 1001.35(a)

People v. Frahs (2020) 9 Cal.5th 618, 630-631

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Fourth Holding:

A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.

In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.

Authority:

PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)

People v. Frahs (2020) 9 Cal.5th 618, 631

Fifth Holding:

A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if

(1) the expert opines that the defendant would respond to treatment;

(2) the defendant consents to diversion and waives the right to a speedy trial;

(3) the defendant agrees to comply with treatment; and

(4) the defendant will not pose an unreasonable risk of danger to public safety.

Authority:

PEN 1001.36(b) and (c)

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Sixth Holding:

The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.

Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

People v. Brown (2024) 101 Cal.App.5th 113, 121

People v. Graham (2024) 102 Cal.App.5th 787, 798–799

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88

People v. Tourville (2026) 120 Cal.App.5th 439, 454–455

Seventh Holding:

The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

People v. Mitchell (2026) 19 Cal.5th 729, 743

People v. Frahs (2020) 9 Cal.5th 618, 634

Eighth Holding:

Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.

The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 455

Ninth Holding:

Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). 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, 896

Tenth Holding:

Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 457

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

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

People v. Smith (2001) 24 Cal.4th 849, 852

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

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

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)

Eighth Amendment, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 23

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that four factors are relevant to determining whether a fine is unconstitutionally excessive:

(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and

(4) the defendant’s ability to pay.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Amelioration, Sentencing, Standard of review, Statutory interpretation

Case 000903

Posted on by Gary McCurdy

Error and/or relief

A defendant sentenced to LWOP is not rendered ineligible for relief under section 1172.75 unless the person has been convicted of a sexually violent offense.

First Holding:

In 2021, the Legislature declared legally invalid all prior-prison-term sentencing enhancements imposed pursuant to Penal Code section 667.5(b) before January 1, 2020, except in cases involving terms for sexually violent offenses. Section 1172.75 established a procedure for resentencing individuals serving a term for a judgment that includes such enhancements.

Three years later, the Legislature amended the statute to preclude resentencing for an individual who has been convicted of a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole (LWOP).

Authority:

PEN 1172.75(f)

Second Holding:

The defendant was sentenced to LWOP, but has not been convicted of any sexually violent offense. Having examined the text and the legislative history of section 1172.75(f), we conclude the Legislature intended to exclude from resentencing only those individuals who were convicted of a sexually violent offense and sentenced to death or LWOP.

We review questions of statutory interpretation de novo. When interpreting any statute, our goal is to determine the Legislature’s intent and give effect to the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language in isolation.

We construe the words in question in context, keeping in mind the nature and obvious purpose of the statute. We also construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided.

The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the statutory language is unclear, we may look to legislative history and public policy as aids in determining how best to give effect to Legislative intent.

Authority:

People v. Cornett (2012) 53 Cal.4th 1261, 1265

Iloff v. LaPaille (2025) 18 Cal.5th 551, 560-561

Hohenshelt v. Superior Court (2025) 18 Cal.5th 310, 330

People v. Rhodius (2025) 17 Cal.5th 1050, 1057

People v. Robinson (2026) 120 Cal.App.5th 516, 522, review granted July 15, 2026, S297048

Third Holding:

Our colleagues in the Fifth District Court of Appeal in Robinson,recently considered how to interpret section 1172.75(f). The court first observed that the ordinary and usual usage of ‘and’ is as a conjunctive, meaning an additional thing, also, or plus.

Further, the Legislature had used the term “and” and “or” in different parts of subdivision (f), which suggested that the Legislature understood the difference between the typically conjunctive “and” and the typically disjunctive “or.” It therefore appeared the challenged portion of subdivision (f) was intended to be construed conjunctively to exclude an individual who has been convicted of a sexually violent offense and sentenced to death or a life term without the possibility of parole.

The Robinson court further noted that even if it were to assume the plain language of section 1172,75(f) was ambiguous as to whether it should be read conjunctively or disjunctively, the legislative history supported a conjunctive interpretation.

As the plain meaning of the text and the legislative history both support a narrow reading of section 1172.75(f), we agree with the court’s holding in Robinson and find that section 1172.75(f) applies only to individuals serving a sentence of death or LWOP who are also convicted of a sexually violent offense as defined by Welfare and Institutions Code section 6600(b). Because petitioner was not convicted of a sexually violent offense, he is eligible for recall and resentencing under section 1172.75.

Authority:

People v. Robinson (2026) 120 Cal.App.5th 516, 524-526, review granted July 15, 2026, S297048

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

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

Amelioration, Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case 000886

Posted on by Gary McCurdy

Error and/or relief

1n 1991, for a crime committed in 1989, the defendant was sentenced to life without the possibility of parole (LWOP). When his case came up for resentencing under section 1172.75 in 2025, the court believed its only discretion was to impose less than the upper term on the determinate portion of his sentence. Defense counsel agreed. This was error. The court also erred in its calculation of credit for time served. And the restitution fine must be struck.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a sentence enhancement of one additional year for each of a defendant’s prior prison or jail terms. Section 1172.75(a) now provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b) is legally invalid.

Section 1172.75(b) and (c) mandate that the Department of Corrections and Rehabilitation identify eligible individuals whose sentences include now-invalidated section 667.5 enhancements, and that the trial court shall recall the sentence and resentence the defendant.

While conducting the resentencing, section 1172.75(d)(2), provides the express instruction that the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

Section 190.2(a) provides that where there has been a finding of certain enumerated special circumstances in connection with a defendant who has been found guilty of first degree murder, the penalty is death or LWOP. Section 1385 previously provided the trial court with the discretion to strike or dismiss the special circumstances.

Although the statute only authorizes such relief upon motion of the court or application of the prosecution, the defendant nevertheless has the right to invite the court to exercise its power by an application to strike a count.

Failure by a defendant to make such a request under section 1385 results in forfeiture of the issue. In the interests of justice, and in consideration of defendant’s alternative argument of ineffective assistance of counsel, we exercise our discretion to reach a question that has not been preserved for review by a party.

Authority:

PEN 190.2(a)

PEN 1385

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141, 1144

People v. Coleman (2024) 98 Cal.App.5th 709, 724

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

Third Holding:

Contrary to Section 1385, however, section 1385.1 provides that a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive. The section was enacted as of June 6, 1990, via voter initiative Proposition 115. The dispute here centers around whether section 1385.1 serves as a bar to the trial court’s discretion to strike section 190.2 special circumstances when the court is resentencing a defendant pursuant to section 1172.75 for a pre-June 6, 1990, crime.

Authority:

PEN 1385.1

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Fourth Holding:

Ordinarily, we review the trial court’s sentencing decisions for abuse of discretion. However, defendant argues pursuant to McDavid that the trial court necessarily abused its discretion when it failed to strike his special circumstances because it was unaware that it had any discretion to do so.

We therefore examine whether the trial court had any discretion in this regard, which is a question of statutory interpretation to be reviewed de novo.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730, 757

People v. McDavid (2024) 15 Cal.5th 1015, 1023

Fifth Holding:

The Nguyen court noted that section 1385.1 operates only prospectively, therefore, a trial court may dismiss a special circumstance allegation attached to any murders committed before June 6, 1990, the date that section 1385.1 became effective. Nguyen specifically relied upon Tapia.

In Tapia, Proposition 115 took effect while the defendant was in the process of being prosecuted for first degree murder. The defendant challenged the trial court’s decision to conduct voir dire pursuant to the new Proposition 115 procedures.

In examining whether Proposition 115’s provisions could be applied to crimes committed prior to its effective date after consideration of ex post facto concerns, the Supreme Court separated the provisions into four separate categories depending on their impact upon defendants.

Relevant to this inquiry, the high court expressly categorized section 1385.1 as falling within the category of provisions that change the legal consequences of criminal behavior to the detriment of defendants and therefore cannot be applied to crimes committed before the measure’s effective date.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141

Tapia v. Superior Court (1991) 53 Cal.3d 282, 286-287, 297

Sixth Holding:

The mandate in section 1172.75(d)(2), that the trial court apply any other changes in law that reduce sentences or provide for judicial discretion” evidences a legislative intent that defendants are to be treated with more leniency, not less, when being resentenced pursuant to this statute. Because the trial court clearly expressed more than once its belief that it did not have any discretion with respect to the LWOP sentence on Count 1, we deem the court to have abused its discretion and reverse.

Authority:

PEN 1172.75(d)(2)

People v. McDavid (2024) 15 Cal.5th 1015, 1023 [A court acting while unaware of the full scope of its discretion is deemed to have abused it.]

Seventh Holding:

The court court failed to award the defendant 2 days of credit for time served, and we modify the judgment accordingly.

(Gary note: The court did not cite any authority, but it seems obvious that the court has the power to modify the credit for time served to the correct number. I have cited authority the court could have relied on. The issue does not seem so much a matter of the trial court refusing to award credit; rather, it was a mathematical error. I speculate that perhaps the court did not award credit for the first day in custody. Counting days is different than determining the number of days between dates. From January 1 through January 31 is 31 days, counting. But if you subtract January 1 from January 31, you will realize only 30 days.  For credit for time served, the correct number is the counting number–31 in my example.)

Authority:

PEN 2900.5

Eighth Holding:

As part of defendant’s original 1991 sentencing, the court ordered him to pay $10,000 to the state Restitution Fund pursuant to Penal Code section 1202.4 (formerly Govt. Code sec. 13967(a).) In light of section 1465.9, which compels that restitution fines older than 10 years be vacated, we vacate that fine. In Salstrom, the court determined that the reference to 10 years is from the date the restitution fine was originally ordered.

Resentencing does not reset the 10-year limitation. Applying section 1465.9 to reduce defendant’s sentence as part of a section 1172.75 resentencing hearing gives effect to both statutes.

Authority:

PEN 1465.9

People v. Giordano (2007) 42 Cal.4th 644, 652-653 [detailing the history of the restitution statutes]

People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601, review granted on unrelated issues, March 11, 2026, S295038

Mejia v. Reed (2000) 31 Cal.4th 657, 663 [when two codes are to be construed, they must be read together and so construed as to give effect, when possible, to all the provisions thereof]