Where’d we put our tobaggan?
I’m a hoarder, of sorts. Probably mostly in writing. Once I’ve written something, I don’t like to discard it permanently, because I never know when it will be exactly the thing I was looking for in a different context. And probably three times in my life I have found “that” very thing when I needed it much later than I had written it. (Three is apocryphal, but represents “I don’t know how many times, but certainly no more than fewce.”)
So I’m struggling a bit. (And when you read my struggle, you’ll realize how easy my life has been.) I’ve been collecting and preparing summaries of unpublished victory opinions since late October 2025. Before I even had an inkling of how to do a blog. (I’d say even before I knew how to do a WordPress website, but I’m not sure when I’ll ever be able to say “Oh yeah, I know how to do a website.” It reminds me of a scene in a very successful 1960’s sitcom in which the husband, after his wife’s first contraction, asked her how far apart the contractions were.)
My process in the beginning was to record basic info (case name and its court number and opinion date), assign an anonymizing case number (e.g., Case 000134), and then copy the salient points and citations and paste them into a few holding areas in my database. My first Post was December 7, 2025, by which time I had summarized (in my database) more than 170 cases. (I’m in the mid-400s today, and as you can tell from the case numbers in today’s batch, I’ve posted only 130-ish of them.) It was a few weeks later before I developed a much more efficient method of getting the summary in shape for posting. By then I’d summarized 245 or so, of which I had posted 60. Today brings me up to roughly under 130 posted. So I have around 115 summaries I created under the less-efficient method. To put them into postable condition will take at least twice as long, some likely three times as long, as the ones I have since prepared more efficiently.
And that’s where my hoarding nature gets in my way. Rational thinking: No reader is going to miss those 115 inefficiently-assembled cases. Everything is anonymized anyway, and you likely wouldn’t even ever know they existed. They all do contain gold, but one of my points for summarizing unpublished cases in the first place is that unpublished opinions are usually unpublished because they cover rulings on errors that occur over and over and do not need a published opinion to settle the questions. So rationally, I should just set those four score and 35 opinions aside and start finishing for posting the cases I summarized more efficiently. I can even adjust the Case Numbers so there won’t be any obvious gap, right?
Irrational thinking: “But I did the work! I gotta finish ’em.”
Compromise I’m considering: Start posting only the efficiently done summaries, but hang onto the old ones, and slip them in occasionally when it seems opportune.
So I’m going to run a poll by email. Choose either (a) Rational thinking or (b) Irrational thinking. (If the former wins out, the Compromise will likely be what I do, rather than simply trash the inefficiently-done 115.) To vote, send me an email indicating your recommendation. The poll closes one week from the date of this post. You can find my email on my About me page, under the Maybe I Can Help title. Note that you cannot simply copy and paste it or click on it as a link. You need to put it into email format, which is, in this instance, myfirstname.mylastname@mydomain.com. Don’t forget the period between my names. (And unless you instruct me to keep your “From:” email address, I will delete it and your email containing your vote. I will not release it to anyone, regardless.)
Summary of Summaries
On recall of the sentence under 1170(d) on a juvenile tried as an adult, the trial court erred in believing jurisdiction expired at age 25, rather than within two years of the disposition hearing (i.e., the hearing on the recalled commitment).
Because the resentencing resulted from an order in a prior appeal to strike the prior prison terms, the defendant’s resentencing was not under section 1172.75, and it was error to reimpose the upper term on factors not proven beyond a reasonable doubt to a jury.
Another case where it appears that the defendant is not eligible for recall of sentence under 1172.6 based on the record the court reviewed at the prima facie stage, but was remanded to give him a chance to file an amended petition to overcome what appears to be the problem from the record.
Section 654 applied to prohibit punishment on more than one count for a single act or course of conduct of driving his car and causing injury.
Because of amendments to W&I section 730.6 while the juvenile proceedings were on appeal, the minor’s restitution fine was stricken.
Case: 000134
In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17. In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d). The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court. The court granted the motion, and appellant challenges that ruling on appeal. We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue.
First Holding: In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old. The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25. However, the court was incorrect. The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707. In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case. [See] W&I 707(d).
Second Holding: When the appellant presents an issue of statutory interpretation, we review it de novo [See] In re Noah S. (2021) 67 Cal.App.5th 410, 414.
Third Holding: Reversal is required 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. Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness. Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25. It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25. [See] People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.
Fourth Holding: In order to transfer a minor from juvenile court to criminal court, the court must “find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. [See] W&I 707(a)(3).
Case: 000135
On resentencing under section 1172.75, the court erred in imposing the upper term on factors that had not been proved to a jury beyond a reasonable doubt.
First Holding: A criminal judgment does not become final for purposes of In re Estrada (1965) 63 Cal.2d 740 when an appellate court affirms a conviction, but leaves sentencing issues pending before the trial court following remand. During the resentencing on remand, the benefits of supervening ameliorative legislation apply retroactively. [See] People v. Lopez (2025) 17 Cal.5th 388, 392; In re Estrada (1965) 63 Cal.2d 740.
Second Holding: Absent waiver or stipulation, aggravating factors such as the increasing seriousness of a defendant’s prior convictions and unsatisfactory performance on probation must be found true beyond a reasonable doubt by a jury before those facts can be used to justify an upper term sentence. [See] PC 1170; People v. Wiley (2025) 17 Cal.5th 1069, 1082.
Third Holding: This case must be distinguished from People v. Brannon-Thompson, which found that the plain language of section 1172.75(d)(4) indicated the Legislature intended the new burden of proof amendments to section 1170(b) to apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing. In this case, the defendant was not being resentenced after a prior sentence that imposed an upper term was recalled. Instead, he was on remand from the prior appeal directive to strike prior prison term enhancements before section 1172.75 even went into effect (which the court did). As such, when the trial court proceeded to resentence defendant in 2023, his sentence already lacked any enhancements imposed pursuant to former section 667.5(b). Defendant accordingly was not eligible for resentencing under section 1172.75 in 2023, making the provision inapplicable. Instead, appearing for resentencing based on a remand in the prior appeal, the defendant was entitled to the benefits of supervening ameliorative legislation, including the new evidentiary standards of section 1170(b). [See] PC 1170(b); People v. Lopez (2025) 17 Cal.5th 388; People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455.
Case: 000136
We find that in making the prima facie determination, the trial court properly reviewed the preliminary hearing and partial trial transcripts as part of the record of conviction, completely independent from the factual basis stipulation at the plea hearing, to find defendant was the actual killer and ineligible for resentencing under section 1172.6. Defendant’s contrary claims, including his alleged “immunity” and ineffective assistance arguments, are refuted by the record. As in Patton, however, we grant defendant’s request to remand the matter for him to have the opportunity to file a supplemental petition in the trial court.
First Holding: We begin with the provisions of section 1172.6. Effective January 1, 2019, Senate Bill No. 1437 amended the felony-murder rule by adding section 189, subdivision (e). It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime. [See] People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022) 13 Cal.5th 698, 707–708; People v. Reyes (2023) 97 Cal.App.5th 292, 295.
Second Holding: While this appeal was pending, the California Supreme Court decided Patton and held that in making the prima facie determination as to whether a petitioner, who entered a plea instead of going to trial, was convicted under a now-invalid imputed malice theory of homicide in a section 1172.6 petition, the trial court 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. It disapproved of appellate decisions that conditioned the use of preliminary hearing transcripts to make the prima facie determination on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea. It affirmed the trial court’s denial of the section 1172.6 petition in that case but granted the defendant’s request to remand the matter for the opportunity to file an amended petition consistent with the Supreme Court’s ruling. [See] People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 569-570.
Third Holding: As relevant herein, the petitioner must declare (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine. (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019. [See] PC 1172.6(a)(1)–(3); People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 558.
Fourth Holding: When a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred. [See] People v. Reyes (2023) 97 Cal.App.5th 292, 298; People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 559.
Fifth Holding: The amendments to sections 188 and 189 did not invalidate murder convictions based on the theory that the defendant was the actual killer. Where the record of conviction shows the defendant was the actual killer, he was not convicted under a now-invalid imputed malice theory and is ineligible for relief as a matter of law, and no evidentiary hearing is required. If the trial court commits error in making the prima facie finding to deny the petition without an evidentiary hearing, the error is harmless if the defendant is ineligible for resentencing as a matter of law. [See] People v. Strong (2022) 13 Cal.5th 698, 707; People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167; People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Garcia (2022) 82 Cal.App.5th 956, 973; People v. Lewis (2021) 11 Cal.5th 952, 973–974.
Case: 000137
As we explain below, we agree that the trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654. In all other respects, we affirm the judgment.
First Holding: An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Therefore, section 654 prohibits multiple punishment for offenses committed during a single or indivisible course of conduct. [See] PC 654; People v. Hester (2000) 22 Cal.4th 290, 294; People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208.
Second Holding: Section 654 prohibits the imposition of concurrent sentences for offenses committed during a single or indivisible course of conduct. The accepted procedure for such offenses is to sentence defendant for each count and stay execution of sentence on certain counts to which section 654 is applicable. [See] People v. Jones (2012) 54 Cal.4th 350, 353.
Third Holding: The trial court erred by imposing punishment for both count 2 and count 3 because both offenses arose out of a single or indivisible course of conduct. Both counts 2 and 3 were committed during the defendant’s single or indivisible course of conduct of driving his car and causing injury to one victim. Therefore, section 654 prohibits punishment of the defendant for both counts. Because under amended section 654, the trial court has discretion whether to punish the defendant for either count 2 or count 3, we reverse its imposition of punishment for both counts and remand the matter for the limited purpose of resentencing him on count 2 and count 3. [See] PC 654.
Case: 000138
The minor contends, and the People concede, that recent amendments to [W&I] section 730.6 apply retroactively, requiring that the restitution fine imposed by the juvenile court be stricken.
First Holding: While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602. [See] W&I 730.6.
Second Holding: Appellant is entitled to the ameliorative benefits of this amendment. [See] In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal].