A spaceship’s last moments as it enters the black hole?
Well, as I get into this web thing a little more, I have seen that I need to moderate my own expectations. I was hoping to be able to summarize and post the qualifying unpublished opinions for each day. I.e., one post would be all of the cases for that particular day. Turns out to be a huger task than I expected if I’m going to present what I want to present in each case’s summary.
I’ve kept track of my time for the past week, broken into three blog-related categories.
(1) Downloading and summarizing each case that, following a quick look at all the criminal cases, seems to have some qualifying aspect for the blog.
(2) Breaking the summaries into bloggable format. Paraphrasing what I copied and pasted, moving the embedded authorities to the end so that the holding of the text states the principal unhampered by several levels of quotation marks, ellipses, brackets showing that the citation quoted was in present tense but the author of the new opinion phrases it in the past tense. For example, suppose the opinion language stated, “‘”[T]he defendant “‘walk[ed]’” … and [the victim] … shout[ed] at [the defendant] while … [the witness] … ate [pastries],”‘” I would clean that up to: The defendant walked and the victim shouted at him while the witness ate pastries.
(3) Gathering the now-tailored (“categorized”) cases into a single document as a text file, then removing a number of aspects inserted by my export that my collecting application puts in as part of the gathering, marking, separating, and exporting process, then pasting in as a new post, then composing a bit of an intro like I’m writing now, and doing some centering and boldfacing the case numbers, and creating a summary of the summaries for quick peeks. And finding a photograph, cropping and sizing down from megamegs to under 100 kilosomethings, and getting it into the post.
In that week, I summarized (step 1) 48 qualifying opinions (42 hours). I categorized (step 2) 28 of them (12 hours). And I have blogified (step 3) the following five for today’s post (8 hours). A total of 62 hours . In a week. (And that was through yesterday, not including my time blogifying today, probably another hour or so.)
So I need to figure out a balance. Given that there have been as many as 14 “wins” (by my definition) in a day, I think I need to re-think my goal of posting a full day’s worth per post. (You may recall that I broke Post 17 into 17.1, 17.2, and 17.3, all of which I posted on the same day because they were all decided on the same day, albeit a few months ago.)
I’m thinking that one of my observations about unpublished opinions is that they contain gold of stuff that is so common you don’t run across it–or notice it, anyway–in the published opinions. So I should focus on providing that gold, not focus on getting every unpublished opinion (which I don’t identify for you anyway) out the door quickly. I’m thinking that IF anyone is reading these and getting something out of them at all, maybe four to six a day is pu-lenty.
We all probably pulled all-nighters in law school studying for class and exams. Ditto for the various licensure preps and tests (MPRE, LSMFT, bar review, and bar exam), and we probably all do a lot of reading directly related to some client problem on our desk, and we probably all have SOME sort of “new developments in the law” system in place. Whew! We need 30 hours a day. We probably do not all have time to read a 5000-word blog daily that plagues us with “yet another example of a court [imposing the upper term without a jury finding BRD; abstract of judgment or minute order gone awry; credit for time served? WHAT credit for time served?] …. “
All through my career, I collected snippets of holdings pertinent to my practice, and kept them in some format that I could find them when I need them. The last six years, I collected summaries of all the state’s published criminal cases in a huge PDF volume of nearly 3000 pages . For about 30 years before that, I used my favorite desktop database application–I won’t name it in my blog because I’m not sure what I’m supposed to display as trademark info and the like. (If companies are so tight that they’re afraid something huge bad will befall them if their product is mentioned without the accompanying legally required marks and stuff, my solution is easy. I won’t name the product.) In my free time (you know, the other 106 hours in the week), I may someday attempt to move the PDF file into that favorite database program of mine.
(It reminds me of a cartoon I once saw (and I may have mentioned this elsewhere) where the law students are sitting in the middle of stacks and stacks and stacks of casebooks, and one says something like, “What troubles me is that I know the answer is just staring at me someplace.”)
Because I know that I have the info I want by using just a few search terms (though PDFs are a bit more challenging, because they seem to be searchable by exact string and not by boolean or proximity), I don’t have to log into online databases to look up what case holds that a particular issue is viewed under the Watson standard of error or the Chapman standard. That is, yes, I do have to look it up, but it’s all in my snippets somewhere easy for me to find. What I mean is I don’t have to turn to the huge databases and do a search from scratch to find a case that says “Yes, Gary’s client is entitled to reversal because it cannot be said that the error was harmless [under whichever standard is applicable].” I can usually find what I want among my snippets, and either use that directly or use it as a springboard to see if I can find a case whose facts are more directly like my client’s.
So when I envisioned my Thar’s Gold blog, I had in mind that attorneys whose practice includes the need to know the law in this area can copy and paste from my blog the various “maxims,” if you will (even though they aren’t), along with the published cases the attorney can actually read when the issue pops up. “We review [xxx] de novo.” “We defer to the trial court when reviewing […].” “Abuse of discretion occurs when […].” Etc.
But just as San Francisco was not built in a day, I suppose neither must your bag of tricks be so full so quickly that it bursts by too much sudden tension on the seams. (I tried to mix metaphors, but only came up with a metathree.)
So in this evolving blog, I’m going to see what I can do to keep it manageable, probably in chunks of four or five cases. I’ll worry less about getting an entire days’ decisions processed in a single post.
I am getting closer to rolling it out formally and getting the word out to more people. I’m still trying to find time to fix a few things, particularly with the search function. I’ve also been asked by a good friend to institute some method for notifying readers when a new post has gone up (those who want to be notified, anyway). I will look into that. I’ll be looking for a solution that does not involve scraping information from you and passing it along to plaguers. As I have said in my Privacy statement, I don’t want to know who you are or what you do or what you like to buy (or not), unless you initiate contact once I display my email address. I don’t want to implement something that enables a third party provider to harvest your info. But I’ve just been so busy working on the content (and still having a life) that “well, tomorrow’s another day” keeps coming to mind.
So, if you’re still awake and extremely patient (for which I’m grateful), here’s a preview of today’s attractions.
Summary of Summaries
There’s an organized discussion of the exercise of peremptory challenges prohibited by Code of Civil Procedure section 237.1.
Another reversal where the trial court erroneously determined that the defendant was not eligible for resentencing under section 1172.5 because the enhancement for a prior prison term had been stricken, a question left open by Rhodius, which dealt with when the enhancement had been imposed but stayed.
The trial court should not have treated the defendant’s petition for writ of habeas corpus and separate motion for recall of sentence under section 1172.6 as one omnibus habeas corpus petition. And the abstract of judgment contained an error on whether the counts were to be served concurrently consecutively.
Yet another instance where the court failed to update credit for time served at the conclusion of the resentencing hearing under section 1172.75.
The Supreme Court has resolved the question of whether a court must resentence a Three Strikes life termer to a doubled term under the Three Strikes Reform Act when the sentence has been recalled under section 1170.75. The answer is yes, subject to the Three Strike Reform Act’s exception where the court determines that relief would constitute an unreasonable risk of danger to public safety. And the court must recalculate credit for time served.
Case: 000119
The judgment must be reversed because the trial court deprived the defendant of his statutory rights under Code of Civil Procedure section 231.7 when it failed to sustain defense counsel’s objections to the prosecutor’s use of peremptory challenges to two prospective jurors. We reverse the judgment and remand the matter for a new trial.
First Holding: At its core, Code of Civil Procedure section 231.7 precludes either party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. Once the objection is made, the trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. It must consider only the reasons actually given and not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record. [See] CCP 231.7(d)(1).
Second Holding: The statute acknowledges that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of California. It defines ‘unconscious bias’ to include both implicit and institutional biases. [See] CCP 231.7(d)(2)(C).
Third Holding: A peremptory challenge for any of certain enumerated reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case. [See] CCP 231.7(e).
Fourth Holding: The term ‘clear and convincing’ refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case. [See] CCP 231.7(f).
Fifth Holding: Section 231.7(g) provides a list of reasons for peremptory challenges that have historically been associated with improper discrimination. [See] CCP 231.7(g)(1)(A) and (B).
Sixth Holding: The denial of an objection made under section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial. [See] CCP 231.7(j).
Seventh Holding: [GARY NOTE: The opinion examined the details of the voir dire and procedures followed, and cited several published opinions as examples of resolutions of the problem. Rather than write a full tome, I have chosen simply to list the published cases, which you may want to read if you have a similar issue in your case(s).] [See] People v. Jaime (2023) 91 Cal.App.5th 941; People v. Caparrotta (2024) 103 Cal.App.5th 874, 892 [the role of the two-step procedure set forth in section 231.7, subdivision (g)(2) is to determine whether the presumption of invalidity has been rebutted]; McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243 [discussing racial disparities in charging decisions]; People v. Aranda (2012) 55 Cal.4th 342, 364 [the high court has identified as structural error constitutional violations such as racial discrimination in jury selection]; People v. Cahill (1993) 5 Cal.4th 478 [certain structural errors require reversal notwithstanding the strength of evidence in a particular case].
Additional Holdings: [GARY NOTE: Amicus curiae filed a brief that, in essence, challenged the legality of section 231.7, an issue not raised by either party in the appeal.] The second issue regarding the Legislature’s ability to require reversal was not raised by either party, either before the trial court or in this appeal. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered. [See] People v. Hannon (2016) 5 Cal.App.5th 94, 105
Case: 000120
Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75. We reverse and remand for resentencing. Holding: A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term. [See] People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987; People v. Cota (2025) 112 Cal.App.5th 1118, 1133; People v. Rhodius (2025) 17 Cal.5th 1050.
Case: 000121
The defendant submitted both a petition for writ of habeas corpus and a motion for recall and resentencing under section 1172.6. The trial court erroneously treated both as a petition for writ of habeas corpus, which it denied without prejudice to allow the defendant to separately file a petition under section 1172.6. Though contained in the same envelope and assigned a single case number by the court clerk, there were two separate matters presented to the trial court. The matter is remanded for the trial court to give due consideration to the petition/motion filed for recall of sentence under section 1172.6.
First Holding: The record indicates that defendant submitted not only a petition for writ of habeas corpus, but also a separate motion for resentencing. The title page of the habeas petition states it was being filed concurrently with a motion for recall and resentencing pursuant to section 1172.6. Defendant included a separate section 1172.6 “motion” with its own title page and caption designating it as such. That defendant, a prisoner, mailed the documents in one envelope as opposed to two, and placed his “motion” for resentencing before the exhibits to the petition for writ of habeas corpus, does not change the fact he submitted a separate “motion” to the court. As for the assignment of only one case number—for the habeas proceeding—this was a clerical matter over which defendant had no control. The trial court was required to consider the motion/petition filed under section 1172.6. [See] People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis) [where resentencing petition complies with the three facial sufficiency requirements of § 1172.6, subd. (b), the court proceeds to consider whether the petitioner has made a prima facie case for relief under subd. (c)].
Second Holding: The abstract contains an error on whether the two counts were ordered served concurrently or consecutively. Should the trial court determine defendant is ineligible for relief pursuant to section 1172.6, we direct the trial court to issue an amended abstract of judgment that corrects this error. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].
Case: 000122
The court failed to recalculate the actual time defendant had served pursuant to the sentence for which he was being resentenced and reflect those credits in the amended abstract of judgment.
First Holding: The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 37 [The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]; PC 2900.5
Second Holding: Generally, a clerical error is one inadvertently made. Clerical error can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts [See] People v. Schultz (1965) 238 Cal.App.2d 804, 808; In re Candelario (1970) 3 Cal.3d 702, 705.
Case: 000123
On appeal from his resentencing under section 1172.75, the defendant argues the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (Reform Act)) to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. He also contends the trial court should recalculate his custody credits on remand. The People concede both of these points. We accept the People’s concession on this issue and the sentence calculations, vacate the defendant’s sentence, and remand for a full resentencing.
First Holding: Even where the defendant is serving a sentence under the Three Strikes law, on recall the trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety. [See] People v. Superior Court (Guevara) (2025) 18 Cal.5th 838.
Second Holding: When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 37.