Sunsets, eh?
Well, it’s been a nice holiday season. I’m figuring out a little more how to do this posting stuff. Still several things I need to figure out, and will probably have to get some professional help (on at least WordPress blogging, whether or not I need some other sort)to accomplish a few of the things I haven’t yet figured out. But I figure I’ll have time to go at my own pace.
I did remember to prepare a preview of come-on attractions, for those of you in a hurry, or who read the last chapter of the whodunnits first.
Highlights of Today’s Action
A nice lesson in the elements of aiding and abetting an attempted murder;
Credits for time served need to be updated on resentencing;
An abstract of judgment that got it wrong misled the trial court and resulted in a full sentencing do-over;
Another abstract of judgment failed to show that sentence on one count was stayed under Penal Code section 654;
Another do-over for a trial court to determine whether recent amendments to gang offense statutes rendered a prior serious felony a non-serious felony that no longer supports a five-year enhancement;
Yet another abstract got it wrong on fines that were not imposed;
A Miranda violation suppression motion was improperly denied;
Where mitigating factors are present, the trial must give them great weight in deciding whether to dismiss enhancements as provided in section 1385;
Upper terms cannot be imposed on factors that require proof beyond a reasonable doubt by a jury in the absence of a jury trial or a stipulation or an express waiver;
If the trial court denies a bare bones petition for resentencing under section 1172.6 where the preliminary hearing transcript suggests the petitioner is ineligible, the petitioner should be given an opportunity to file an amended petition.
Lights, Action, Camera!
Case: 000064
We conclude that the failure to appoint counsel and hold a prima facie hearing on the first and second degree murder convictions was harmless, but the same cannot be said with respect to his attempted murder conviction. We thus reverse the denial of the petition as to that count and remand for further proceedings, in line with People v. Patton (2025) 17 Cal.5th 549. Custody credits must be updated.
First Holding: Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter. [See] People v. Antonelli (2025) 17 Cal.5th 719.
Second Holding: The instructions that guided the verdicts did not include all the elements of direct aiding and abetting liability for attempted murder. First, the instructions did not require the jury to find that the defendant had the specific intent to kill. the failure to identify a specific target crime while instructing with CALJIC No. 3.02 broadened the reach of the natural and probable consequences doctrine to include liability for aiding and abetting other unspecified criminal behavior. Indeed, the Prettyman court explained that omitting the element of the instruction identifying the target crime is error because it impermissibly allows the jury to convict the defendant of murder based on its belief that “the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct” of which murder was a natural and probable consequence. [See] People v. McCoy (2001) 25 Cal.4th 1111, at p. 1118 [a defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]; People v. Prettyman (1996) 14 Cal.4th 248, 268; Estelle v. McGuire (1991) 502 U.S. 62, 72 [reversible error in failing to identify a target offense if there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution”].
Third Holding: When a sentence is modified while defendant is serving the sentence, the trial court must update defendant’s actual custody credits up to that point. People v. Buckhalter (2001) 26 Cal.4th 20.
Case: 000065
When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.
Holding: Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29; Penal Code section 2900.1.
Case: 000066
We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.
First Holding: An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Jones (2012) 54 Cal.4th 1, 89.
Second Holding: In 2019, the Legislature amended subdivision (b) of section 667.5 (amended § 667.5(b)) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. [See] Penal Code section 667.5, subd. (b).
Third Holding: If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant. [See] Penal Code sec. 1172.75, subd. (c).)
Case: 000067
The abstract of judgment requires correction to show that the enhancement was stricken and the determinate sentences were stayed under Penal Code section 654.
First Holding: Where there is a discrepancy between the oral pronouncement of sentence and the minute order or abstract of judgment, the oral pronouncement controls. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185.
Second Holding: A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. Here, however, we have rejected all but one of her claims of error. As a result, there are not multiple errors to accumulate. [See] People v. Hill (1998) 17 Cal.4th 800, 844; People v. Weaver (2012) 53 Cal.4th 1056, 1077.
Case: 000068
The defendant’s claims the matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333), which narrowed liability for gang-related crimes. We accept the Attorney General’s concession that remand is required for this reason.
First Holding: Effective January 1, 2022, Assembly Bill No. 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. [See] People v. Fletcher (2025) 18 Cal.5th 576, 583; People v. Tran (2022) 13 Cal.5th 1169, 1206.
Second Holding: Assembly Bill No. 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes “a felony violation of Section 186.22” is determined by applying the current version of section 186.22. [See] People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607.
Third Holding: In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. Standard 8.1 amended and renumbered effective January 1, 2007; adopted as sec. 6 effective July 1, 1970. [See] California Standards of Judicial Administration, section 8.1(1).
Case: 000069
The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.
First Holding: In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made. [See] People v. Patton (2025) 17 Cal.5th 549.
Second Holding: We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition. [See] People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Patton (2025) 17 Cal.5th 549.
Third Holding: A trial court may rely on “unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations,” regardless of whether the defendant “stipulated to the transcript as the factual basis of a plea.” [See] People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12.
Fourth Holding: Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal. [See] People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469; People v. Irvin (1991) 230 Cal.App.3d 180, 192.
Case: 000070
The abstract of judgment must be corrected to reflect that the court orally waived all fines and fees at resentencing.
First Holding: Because the trial court expressly stated its intent to waive all discretionary fines and fees, which includes restitution fines, we conclude the court did not impose restitution fines under section 1202.4 or parole revocation fines under section 1202.45. The abstract of judgment must be corrected to reflect the judgment orally imposed. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may order correction of abstracts of judgment that do not reflect the oral judgments of sentencing courts]; People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral pronouncement of judgment and . . . the abstract of judgment, the oral pronouncement controls”].
Second Holding: The restitution fine, although including a minimum fine, is discretionary in that it permits the trial court to decline to impose it for compelling and extraordinary reasons. [See] Penal Code section 1202.4, subd. (b); People v. Tillman (2000) 22 Cal.4th 300, 303.
Case: 000071
The defendant asserts the trial court should have granted his motion to suppress his interrogation statements because he invoked his right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because his statements were involuntary and coerced. We agree and further conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial. The Chapman error standard applies.
First Holding: A custodial interrogation can come in various forms and does not require questions. The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. [See] Miranda v. Arizona (1966) 384 U.S. 436; Rhode Island v. Innis (1980) 446 U.S. 291, 301.
Second Holding: Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect. [See] Pennsylvania v. Muniz (1990) 496 U.S. 582, 601; United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975.
Third Holding: When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation. [See] United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147.
Fourth Holding: Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them. [See] Edwards v. Arizona (1981) 451 U.S. 477, 484–485; People v. Johnson (2022) 12 Cal.5th 544, 580; Michigan v. Harvey (1990) 494 U.S. 344, 350; People v. Henderson (2020) 9 Cal.5th 1013, 1022; People v. Avalos (2022) 85 Cal.App.5th 926, 932.
Fifth Holding: The error requires reversal unless it is harmless beyond a reasonable doubt. [See] People v. Elizalde (2015) 61 Cal.4th 523; Chapman v. California (1967) 386 U.S. 18.
Sixth Holding: We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review. [See] People v. Johnson (2022) 12 Cal.5th 544, 578; People v. Henderson (2020) 9 Cal.5th 1013, 1023; People v. Suarez (2020) 10 Cal.5th 116, 158.
Case: 000072
The defendant argues the trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of her prior victimization. We agree. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.
First Holding: The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. One of the listed mitigating circumstances is “the current offense is connected to prior victimization or childhood trauma.” [See] Penal Code section 1385.
Second Holding: Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. [See] People v. Walker (2024) 16 Cal.5th 1024, 1038.
Third Holding: We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard. [See] People v. Mendoza (2023) 88 Cal.App.5th 287, 298; People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.
Fourth Holding: When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. See People v. Salazar (2023) 15 Cal.5th 416, 425.
Case: 000073
The trial court improperly imposed upper term sentences on Counts 1 and 3, and the matter must therefore be remanded for resentencing. We agree that the defendant’s trial rights notwithstanding, the court’s reliance on his prior criminal history, to impose aggravated terms was prejudicial error.
First Holding: Section 1170, subdivision (b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. [See] People v. Lynch (2024) 16 Cal.5th 730, 742.
Second Holding: Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. Thus, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. [See] People v. Lynch (2024) 16 Cal.5th 730, 742, 748.
Third Holding: Except for properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception to prior convictions permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions, within the meaning of the federal sentencing statute at issue. Instead, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. In doing so, the court reaffirmed the basic rationale of Apprendi v. New Jersey (2000) 530 U.S. 466 and rejected the arguments made by the dissent and amicus curiae that, historically, when exercising their sentencing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to the penalty. [See] Erlinger v. United States (2024) 602 U.S. 821, 843; Mathis v. United States (2016) 579 U.S. 500, 511–512; Apprendi v. New Jersey (2000) 530 U.S. 466.
Fourth Holding: Since Erlinger, the California Supreme Court has gone further to make it clear that Erlinger requires that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1083–1084 [absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor].
Case: 000074
As in Patton, we grant appellant’s request to remand the matter for the opportunity to file a supplemental petition under Penal Code section 1172.6.
First Holding: When the court makes the prima facie determination, it may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition. [See] People v. Patton (2025) 17 Cal.5th 549.
Second Holding: Petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail. It follows from what we have said already that should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing, assuming relief is not otherwise foreclosed. [See] People v. Patton (2025) 17 Cal.5th 549, 566-567.
Third Holding: While it may be that a record can refute the allegations made in the petition, it would be somewhat imprecise to say that evidence in a preliminary hearing transcript, offered at the prima facie stage, irrefutably establishes any particular fact to any particular standard of proof. A conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a conclusion about the strength of evidence in the record. [See] People v. Patton (2025) 17 Cal.5th 549, 567, fn. 10.