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Duty of counsel, Sixth Amendment

Case 001082

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not hold a hearing on the defendant’s motion to have his attorney replaced.

First Holding:

Through counsel, the defendant filed a timely notice of appeal in his Case A. About a month later, he filed in pro. per. a notice of appeal in his Case B. The sentencing hearing had encompassed both cases. The prosecution asserts that the appellate court lacks jurisdiction over the appeal in Case B because its notice of appeal was filed after the 60-day deadline.

The notice of appeal must be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. The liberal construction rule exists to implement the strong public policy favoring the hearing of appeals on the merits.

To be sure, a notice of appeal must identify the particular judgment or order being appealed. However, under the liberal construction rule, courts have held that once a notice of appeal is timely filed from one appealable order, a court can construe it as encompassing a separate, related appealable order as to which it is timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the respondent.

As in Jordan, we deem it appropriate, in the interests of justice, to construe the notice of appeal filed in Case A as sufficient to constitute a notice of appeal in both that case and Case B.

Authority:

Cal. Rules of Court, rule 8.304(a)(4)

D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361

K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 878, 882

In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9

Second Holding:

The defendant submitted a motion to replace counsel under Marsden, asserting various claims pertaining to the adequacy of his representation by counsel. The court marked the motion “Received But Not Filed.” The court never held a hearing on the motion.

The law governing a Marsden motion is well-settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.

Authority:

People v. Marsden (1970) 2 Cal.3d 118

People v. Jackson (2009) 45 Cal.4th 662, 682

Third Holding:

A proper and formal Marsden motion is not required—the defendant need only clearly indicate to the trial court in some manner that he or she is requesting the discharge and replacement of the appointed counsel.

Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. Failure to conduct such a hearing is legal error that compels reversal of the defendant’s conviction unless the record shows beyond a reasonable doubt that the error was harmless.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1178-1179

People v. Marsden (1970) 2 Cal.3d 118, 126

Fourth Holding:

When a trial court’s failure to hold a hearing is inadvertent and a defendant fails to press for a hearing, he can abandon his Marsden request. In this case, we conclude that the facts are closer to Armijo (which concluded the defendant did not abandon the motion by failing to press for a ruling) than Jones (which concluded the opposite).

There is nothing in the record suggesting the trial court’s failure to hold a hearing on the Marsden motion was anything other than an inadvertent omission. As in Armijo, the defendant may reasonably have concluded that his motion had been considered by the court and denied.

We cannot speculate on the basis of a silent record that the trial court, after listening to the defendant’s reasons, would decide the appointment of new counsel was unnecessary.

Authority:

People v. Jones (2012) 210 Cal.App.4th 355, 361

People v. Vera (2004) 122 Cal.App.4th 970, 982

Fifth Holding:

We therefore will conditionally to reverse the orders of probation in both superior court cases and remand to the trial court with the following directions:

(1) the court shall hold a hearing on the defendant’s Marsden motion concerning his representation by his attorney;

(2) if the court finds that the defendant has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and

(3) if newly appointed counsel makes no motions, any motions made are denied, or defendant’s Marsden motion is denied, the court shall reinstate the orders of probation.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 92–93

People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 and fn. 6

Equal protection, Fines and fees, Sentencing

Case 001081

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in staying the assessments imposed under Government Code section 70373 and section 1465.8, which require imposition of a $30 and $40 fee per felony conviction, respectively. Accordingly, we shall strike the court operations and court facilities assessments.

Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations or court facilities assessment pursuant to Government Code section 70373 and Penal section 1465.8.

Having found that the defendant had no ability to pay these assessments, the court should not have imposed and stayed them, but rather should have stricken them. No similar differences justify denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment]

Jury trial, Sixth Amendment

Case 001080

Posted on by Gary McCurdy

Error and/or relief

The court’s closure of the courtroom to the entire public during the testimony of at least two accomplice witnesses (who claimed fear of retaliation by the defendant’s fellow gang members for their testimony) violated the defendant’s constitutional right under the federal and state constitutions to a public trial.

First Holding:

Four requirements are necessary to justify exclusion of the entire public from a courtroom:

(1) the existence of an overriding interest that is likely to be prejudiced absent the closure;

(2) the closure is narrowly tailored, i.e., no broader than necessary to protect that interest;

(3) no reasonable alternatives to closing the proceeding are available; and

(4) the trial court must make findings adequate to support the closure.

Authority:

Waller v. Georgia, (1984) 467 U.S. 39, 48

Second Holding:

A partial closure of the courtroom requires only a substantial reason for the exclusion of certain spectators, and that the exclusion be narrowly tailored.

Authority:

People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. 1

Third Holding:

The United States Constitution and the California Constitution guarantee a criminal defendant the right to a public trial, including the right to have friends and relatives present during the proceedings.

The right to a public trial serves two important interests. It protects those who are accused of a crime by helping to ensure that the innocent are not unjustly convicted and that the guilty are given a fair trial. Second, there is a strong societal interest in public trials; they provide an opportunity for spectators to observe the judicial system, improve the quality of testimony, encourage witnesses to come forward with relevant testimony, and prompt judges, lawyers, witnesses, and jurors to perform their duties conscientiously.

Authority:

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, sec. 15;

In re Oliver (1948) 333 U.S. 257, 271-272, 272, fn. 29 [noting special concern for assuring attendance of a defendant’s family members and friends]

People v. Scott (2017) 10 Cal.App.5th 524, 530

Fourth Holding:

In general, there are two types of exclusions: a total closure where all spectators are directed to leave the courtroom, and a partial closure where some, but not all, spectators are asked to leave.

Authority:

People v. Esquibel (2008) 166 Cal.App.4th 539, 552

Fifth Holding:

While California statutes permit both exclusion and closure orders, rulings applying those statutes are still subject to the fundamental constitutional right to a public trial under the federal and California constitutions. We thus analyze the court’s Closure Order (excluding the entire public during the testimony of certain witnesses) using the factors the Supreme Court identified as relevant to balancing the important public interest in open courtrooms against any higher values or overriding interest.

Authority:

PEN 686.2

PEN 868,7

Waller v. Georgia, (1984) 467 U.S. 39, 45

Sixth Holding:

Protecting trial witnesses from threats, harassment, or physical harm is an overriding interest and deserving of protection. Substantial evidence supports the trial court’s factual determination that one of the witnesses felt intimidated by the presence of individuals in the courtroom on the second day of his testimony.

(Gary note: The court went on to compare the conclusions of the trial court with the remaining requirements of Waller, and determined that the initial partial exclusion order by the trial court–excluding only certain named individuals–was likely reasonable under Waller. The additional information the trial court received about the defendant’s purported involvement in securing the presence of those spectators did not add anything to the analysis of the threat as to warrant closure to the entire public. The appellate court’s analysis under Waller is fact specific and not particularly informative in the context of these summaries of unpublished opinions.)

Authority:

NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223

Seventh Holding:

It has been a longstanding aspect of criminal law that exclusion of witnesses does not violate a defendant’s right to a public trial, even if the witnesses are the defendant’s close relations.

Authority:

EVID 777 [the trial court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses]

People v. Sprague (1879) 53 Cal. 491, 493 [The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination]

United States v. Ricker (8th Cir. 2020) 983 F.3d 987, 994 [rejecting the defendant’s Sixth Amendment argument after the defendant’s father was excluded from the courtroom as a potential witness but was not called; explaining that the Supreme Court has said that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged., but that entitlement is not absolute, and does not necessarily prohibit the sequestration of the defendant’s friends or relatives who may be called as witnesses.]

Abstracts and Minutes, Sentencing

Case 001079

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This is not a win, but I have included it as yet another instance where an abstract of judgment needed correction.) There were errors in the abstract of judgment that must be corrected.

First Holding:

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

Here, the trial court orally imposed a section 1202.5 fine, which included “the fines, fees, assessments, and surcharges in paragraph 4 on page 15 in the probation report.” The abstract of judgment, however, does not list the individual penalty assessments imposed by the court or their statutory bases, as required.

Accordingly, we will direct the trial court to correct the clerical error in the abstract of judgment to reflect a $10 fine under section 1202.5 and assessments in the following amounts: a $2.00 court surcharge (sec. 1465.7), a $5.00 state court facilities construction fee (Gov. Code, sec. 70372(a)), a $10.00 state penalty assessment (sec. 1464), a $1.00 DNA identification fund fee (Gov. Code, sec. 76104.6), a $4.00 DNA identification fund fee (Gov. Code, sec. 76104.7), and a $7.00 county penalty assessment (Gov. Code, sec. 76000).

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

Amelioration, Appellate Principles, Elements of crime, Plea bargains, Sentencing, Standard of review, Vicarious liability

Case 001078

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition under section 1172.6 at the prima facie stage, reasoning that the defendant was ineligible for relief because his plea occurred after the Legislature had eliminated liability for attempted murder under the natural and probable consequences doctrine. The trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Further, the minutes of the sentencing and the abstract of judgment each contain separate errors, which must be corrected on remand.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to seek resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing under section 1172.6. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. The law took effect on January 1, 2022.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when:

(1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine;

(2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and

(3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Fourth Holding:

After briefing on the petition, the trial court must hold a hearing to determine whether the petitioner has made out a prima facie case for relief. If the petition and record establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of attempted murder under section 188 as amended.

If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6(c), (d)

People v. Strong (2022) 13 Cal.5th 698, 708-709

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. The court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

The record of conviction necessarily informs the court’s inquiry. If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. A petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

But a trial court may not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Patton (2025) 17 Cal.5th 549, 557, 563

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Seventh Holding:

When the defendant changed his plea in 2021, before SB 775 took effect, the Courts of Appeal were divided on whether SB 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution.

It was not until SB 775 became effective in January 2022—several months after the defendant pleaded guilty—that the law expressly eliminated that possibility. It therefore would have been theoretically possible, at the time of the defendant’s prosecution, for the People to proceed against him under a natural and probable consequences theory of attempted murder.

Accordingly, the trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Authority:

People v. Alaybue (2020) 51 Cal.App.5th 207, 222

People v. Coley (2022) 77 Cal.App.5th 539, 544

Eighth Holding:

The sentencing minutes incorrectly reflect that the defendant’s attempted murders were willful, deliberate, and premeditated. We direct the trial court to amend the minutes to delete the “willful, deliberate, and premeditated” language.

The abstract of judgment incorrectly reflects the defendant’s sentence for the two attempted murders as 15 years and 4 years, respectively. If the attempted murders are not vacated on remand after hearing on the 1172.6 petition, the trial court shall amend the abstract of judgment to correctly state that his sentences for those two convictions are nine years and two years, four months, respectively.

(Gary note: The court did not cite authority for its orders to correct the minutes and the abstract of judgment, though there is much authority available. I have set forth a few that would support the court’s action.)

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