AppellateAdvisor Law Library Background

Case Summaries

Welcome to the Appellate Advisor blog! Please feel free to scroll through the case summaries in chronological order, or search by keyword, category, or tags. It may be helpful to start with the Welcome Post.

Amelioration, Sentencing

Case: 000401

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

When resentencing a defendant under section 1172.75, the court must 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(d)(2)

Second Holding:

Once the trial court received that identification information from the California Department of Corrections and Rehabilitation (CDCR), it had authority over the matter and was statutorily authorized to act. That is, under section 1172.75, subdivision (b), once the CDCR provided this identification to the trial court, it triggered the trial court’s review and resentencing obligations under section 1172.75(b) thereby placing the matter within a statutorily authorized exception to the general rule that a trial court has no jurisdiction to modify a final judgment. And though section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition, the filing of such a procedurally unauthorized motion did not deprive the trial court of the jurisdiction afforded to it by statute to resentence a defendant as mandated by section 1172.75.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332–333

Third Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Fourth Holding:

Should the court determine to provide relief under the Three Strikes Reform Act, it may also exercise its discretion with regard to which sentence to stay under section 654, now that the statute does not bind the court to impose the sentence on the count that carries the longer potential sentence.

Authority:

PEN 654

People v. Buycks (2018) 5 Cal.5th 857, 893

Effective assistance of counsel, Juveniles, Retroactivity, Sentencing

Case: 000400

Posted on by Gary McCurdy

Error and/or relief

Where the defendant’s judgment was not final when Proposition 57 was passed (making major changes in the treatment of juvenile offenders as adults), and counsel provided ineffective assistance by failing to seek application of Proposition 57 on appeal, the petition for writ of habeas corpus is granted, and the matter is remanded to the juvenile court to consider whether it would have transferred the case to the adult court for prosecution as an adult even under Proposition 57 (in which case, the conviction will be reinstated as of that date) or to instead proceed by juvenile adjudication (in which case the court must conduct a dispositional hearing).

First Holding:

Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing of criminal charges against a juvenile by prosecutors. Certain categories of minors can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor’s maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. The provisions apply to every minor to whom it may constitutionally apply [i.e., it is retroactive to judgments that were not final prior to its passage].

Authority:

People v. Superior Ct. (Lara) (2018) 4 Cal.5th 299, 305-306

Second Holding:

Where a judgment that was final before Proposition 57 was passed is reopened, as when a sentence is vacated under habeas corpus, the judgment is no longer final and is subject to the provisions of Proposition 57.

Authority:

People v. Padilla (2022) 13 Cal.5th 152

Third Holding:

To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. We defer to trial counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel. If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. In this instance, however, the defendant’s attorney submitted a declaration that she had no tactical reason for not raising Proposition 57 on direct appeal demonstrates constitutional ineffective assistance of counsel under the standard set forth above. The defendant was prejudiced by the failure to raise the Proposition 57 issue earlier, because it provides ameliorative benefits.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687

People v. Weaver (2001) 26 Cal.4th 876, 925

People v. Gray (2005) 37 Cal.4th 168, 207

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000399

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense is not a serious or violent felony. But under the Reform Act, a defendant does not qualify for this ameliorative change if his current offense is one of several specified violations. Even if not convicted of a disqualifying offense, the ameliorative provisions of the Reform Act also do not apply in cases in which the court finds that release of the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 653

Second Holding:

Where a person serving a life term under the original Three Strikes law is before the court for resentencing under section 1172.75 (under which now-invalid prior prison term enhancements must be vacated and the defendant must be fully resentenced to something no greater than the sentence just vacated), the person must be resentenced under the Three Strikes Reform Act of 2012, unless the court finds that release of the defendant would pose an unreasonable risk of danger to public safety as that term was contemplated in the Reform Act.

Authority:

People v. Superior Court (Guevara) 18 Cal.5th 838

Third Holding:

The abstract of judgment must be corrected because it continues to reflect the five prior prison terms that were stricken by the court under section 1172.75.

[GARY Note: No authority was cited for correcting the abstract, likely because the error and remedy are so obvious, but the there is much authority supporting such orders, such as those I have set forth below.]

Authority:

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

Immigration, Standard of review

Case: 000398

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 1991 drug conviction. We conclude the trial court improperly denied his motion as successive. We will reverse and remand with instructions.

First Holding:

Section 1473.7(a)(1) authorizes a person no longer in criminal custody to file a motion to vacate a conviction or sentence that is legally invalid due to prejudicial error damaging person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. Prejudicial 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. Vivar (2021) 11 Cal.5th 510, 517

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

Second Holding:

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. Under that standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When 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

Third Holding:

Given intervening amendments to section 1473.7 between the defendant’s first and second motions, we agree with the parties that the section motion was not successive of his first. Effective January 1, 2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) made it easier to retroactively challenge convictions based on an inadequate immigration advisement. Significantly, the new law eliminated the need to meet the requirements of Strickland v. Washington (1984) 466 U.S. 668 (on ineffective assistance of counsel). Section 1473.7 states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. Because the new law provides a different standard for challenging and prevailing based on immigration advisement errors, the earlier motion did not bar appellant’s later motion.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066

Fourth Holding:

Although the trial court erred in denying appellant’s motion as successive, mere judicial error does not establish bias and normally is not a proper ground for disqualification. We find nothing in the record that demonstrates actual bias or the appearance of bias. Thus, we deny the request to appoint a different judicial officer on remand.

Authority:

In re Tuilaepa (2025) 108 Cal.App.5th 1262, 1283

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 108

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000397

Posted on by Gary McCurdy

Error and/or relief

We vacate the true finding that the defendant suffered a prior strike, in light of the retroactivity of AB 333’s amendments to section 186.22 regarding gang criminal activity. The matter is remanded for further proceedings, which may include retrial of the prior strike allegation.

First Holding:

Any felony defined in section 1172.7(c) is a serious felony, and any serious felony is a strike under section 667 and section 1170.12. section 1172.7(c)(28) defines as a serious felony any conviction of section 186.22 and any felony enhanced under 186.22’s provisions.

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1)

PEN 1170.12(b)(1)

PEN 186.22

People v. Briceno (2004) 34 Cal.4th 451, 462

Second Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed 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. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

In re Estrada (1965) 63 Cal.2d 740

Third Holding:

Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. Application of AB 333 in this manner does not unconstitutionally amend any ballot initiative. Thus, the current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583