Not much to an Oak Titmouse’s leg. Seems to do all the bird asks of it, though.
Well, I’m not much closer to putting this site into award-winning condition. I’ve been swamped with just trying to keep up with the unpublished winning opinions. (And keep in mind, I count ANYTHING as a win if it granted even a tiny favor to the defendant, even no more than a correction in an abstract that would only make a difference in the future if someone were to rely on otherwise erroneous information. While a complete reversal with an apology is always nice, my gamut of “That’s a win!” standards is quite wide.)
I am getting a little more efficient in the steps from finding the cases to putting up the summaries, and I’m optimistic that I will find the time to put into practice and play the tips I know are readily available on the ‘net regarding what I want to implement on my site. I’ve seen a few other attorney sites and am very impressed. A few had notations that suggested to me that an expert had been hired to put it all together. It obviously paid off, in my opinion. I may consider myself lucky if I have this down pat by late spring (of this year).
Not to mention that I don’t even have readers I’m writing for yet, as I have held off reaching out and making the contacts I think will increase the traffic to my site. I probably have to do more than build it so they will come.
Summary of Summaries
The appellate court determined that the record was insufficient to warrant an electronic search condition, and remanded for the trial court to determine whether a narrowly tailored electronic search condition could be devised and justified.
The court erred in denying defendant’s petition for resentencing under section 1172.6 on his attempted murder conviction, because that crime is now included in section 1172.6 as potentially eligible for relief.
If a minor is not removed from the parents, the court has no need to state a maximum term of confinement, and to do so is an abuse of discretion.
It was error for the court to impose the upper term because of an aggravating factor (defendant’s convictions are numerous and of increasing seriousness) that was not submitted to a jury for proof beyond a reasonable doubt.
When a plea bargain specifies a specific sentence, and the defendant fails to show for the sentencing, the court cannot impose a sentence greater than agreed on, unless that consequence was made clear before the plea was entered or was part of the plea agreement itself.
Case: 000141
We agree with the defendant that Probation Condition 13 is invalid under Lent and Ricardo P. We do not agree that the Attorney General’s proposed modification cures the defect, at least not wholly. But in accord with Ricardo P., we will vacate Probation Condition 13 and remand for consideration of whether a more narrowly tailored electronic search condition may be devised and is justified on this record.
First Holding: In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid. Generally, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The third prong of the Lent test requires a narrow tailoring evaluation to determine whether the burden an electronic search condition imposes on the probationer’s privacy is reasonably proportionate to the risk of future criminality. [See] People v. Lent (1975) 15 Cal.3d 481; In re Ricardo P. (2019) 7 Cal.5th 1113, 1122-1123.
Second Holding: Under Lent, the third prong reasonableness determination as explained and applied in Ricardo P. requires a case-by-case, record-specific balancing of factors. The third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. It is insufficient to say, categorically, that electronic surveillance improves effective probation supervision. A probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer. [See] People v. Bryant (2021) 11 Cal.5th 976, 983, 984.
Third Holding: There must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. Even though a direct nexus between the search condition and underlying offense is not always required, there still must be information in a probation report that raises concerns about future criminality. [See] In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166.
Case: 000142
The defendant contends, the People concede, and we agree the superior court erred in finding that the defendant was ineligible for relief as a matter of law with respect to his attempted murder conviction because in 2022 the Legislature clarified with the enactment of Senate Bill No. 775 that relief was available for individuals convicted of attempted murder and voluntary manslaughter. (See sec. 1172.6, subd. (a).) We reverse the order as to his attempted murder conviction. We remand for the court to appoint counsel and to consider the petition in light of the current provisions of section 1172.6.
First Holding: Senate Bill 775, 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] PC 1172.6.
Second Holding: Once a defendant files a facially valid petition with the required statutory language and a declaration that the defendant was eligible for relief under section 1172.6, subdivision (a), the court was required to appoint counsel upon request. [See] People v. Lewis (2021) 11 Cal.5th 952, 962-963.
Case: 000143
The court erred in setting a maximum confinement time when he was released home on probation. We will strike the maximum confinement term and affirm the judgment as modified.
First Holding: It is abuse of discretion for a juvenile court to set a maximum confinement term for a minor who is not removed from his parents’ custody. [See] In re A.C. (2014) 224 Cal.App.4th 590, 591-592 [where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term].
Second Holding: [GARY NOTE, for context, W&I section 726 states, in pertinent part, that IF a minor is removed from the custody of the parents, the court must state the maximum term, which the section also defines.] [See] W&I 726.
Case: 000144
The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).
First Holding: It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. [See] PC 1170; People v. Lynch (2024) 16 Cal.5th 730, 747; Erlinger v. United States (2024) 602 U.S. 821; Cunningham v. California (2007) 549 U.S. 270; People v. Wiley (2025) 17 Cal.5th 1069, 1085.
Second Holding: Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. [See] Erlinger v. United States (2024) 602 U.S. 821, 838.
Third Holding: Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.
[See] People v. Scott (1994) 9 Cal.4th 331, 352–353; People v. McCullough (2013) 56 Cal.4th 589, 593; People v. French (2008) 43 Cal.4th 36, 46.
Fourth Holding: An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal. [See] People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; People v. McCullough, (2013) 56 Cal.4th 589, 593.
Fifth Holding: But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture. [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 327; z People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions].
Sixth Holding: When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence must be reversed unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.
[See] People v. Lynch (2024) 16 Cal.5th 730, 742–743; Chapman v. California (1967) 386 U.S. 18; People v. Wiley (2025) 17 Cal.5th 1069, 1087.
Case: 000145
Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.
First Holding: The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error. [See] People v. Cruz (1988) 44 Cal.3d 1247, 1249.
Second Holding: When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [See] PC 1192.5.
Third Holding: A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent. [See] People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.
Fourth Holding: A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. (Id. at pp. 1223-1224.) When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction. [See] People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224.
Fifth Holding: Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal. [See] People v. Silva (2016) 247 Cal.App.4th 578, 589; People v. Walker (1991) 54 Cal.3d 1013, 1024-1025; People v. Cruz (2013) 219 Cal.App.4th 61, 65.
Sixth Holding: A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required. [See] People v. Vargas (2007) 148 Cal.App.4th 644, 651.