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Amelioration, Appellate Principles, Sentencing, Standard of review

Case: 000305

Posted on by Gary McCurdy

Error and/or relief

The order denying the petition for resentencing under section 1172.6 is reversed.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It accomplished this by amending sections 188 and 189. Section 188(a)(3) now prohibits imputing malice based solely on an individual’s participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189(e). Section 189 requires the prosecution to prove the defendant was the actual killer; an aider and abettor to murder who acted with the intent to kill; or a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

PEN 189

People v. Lewis (2021) 11 Cal.5th 952, 957

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

People v. Wilson (2023) 14 Cal.5th 839, 868–869

Second Holding:

The Legislature, to provide relief to those with existing murder convictions dependent on theories of the crime it had rejected, devised a path to resentencing. It has since expanded this path to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

If the record of conviction establishes ineligibility for resentencing as a matter of law, the petition is properly denied at the prima facie stage. However, the petition and record of conviction must establish conclusively that the defendant is ineligible for relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 970-972

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Authority:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Fifth Holding:

We conclude the defendant has made a prima facie showing that he was entitled to relief. The record of conviction does demonstrate a possibility that he was convicted of second degree murder under an imputed malice theory, that is, that he was guilty of murder based solely on his participation in the robbery. In assessing section 1172.6 petitions, the jury instructions will be critical. Indeed we look at the jury’s verdicts, viewed in light of the court’s jury instructions, to assess whether a defendant has made a prima facie showing for relief under section 1172.6.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Curiel (2023) 15 Cal.5th 433, 441

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000304

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for dismissal citing three different Penal Code sections—sections 1203.4, 1203.4a, and 1203.41. The trial court denied the petition based on section 1203.41, under which the defendant was not entitled to relief. We reverse and remand to allow the court to consider the defendant’s claim for relief under section 1203.4.

First Holding:

The trial court’s denial of relief under any of these statutes (1203.4, 1203.41, 1203.4a) is reviewed for abuse of discretion.

Authority:

People v. McLernon (2009) 174 Cal.App.4th 569, 572

Second Holding:

Section 1203.4 authorizes the trial court to expunge a criminal record if the defendant has fulfilled the conditions of probation for the entire period, the defendant was discharged before the probation period ended, or if the court believes relief should be granted in the interests of justice.

Authority:

PEN 1203.4

Third Holding:

Section 1203.4a authorizes dismissal of charges against defendants who are convicted of misdemeanors but were not granted probation.
Authority:

Authority:

PEN 1203.4a

Fourth Holding:

Section 1203.41 allows an individual convicted of a felony, under certain circumstances, to withdraw a guilty or nolo contendere plea, or set aside a guilty verdict in the interests of justice, in the court’s discretion. The crime to which the defendant pleaded guilty is a wobbler. In this case, because the defendant was sentenced to probation with 364 days in county jail, it is a misdemeanor offense.

Authority:

PEN 1203.41

People v. McElroy (2005) 126 Cal.App.4th 874, 880

Fifth Holding:

it appears the trial court may have been confused by the defendant’s petition, which sought relief under all three statutes. Relief was not authorized to the defendant under sections 1203.4a and 1203.41, and the court did not err in denying relief under section 1203.41. When a trial court evaluates a petition under the incorrect statute or misunderstands the scope of its discretion, this is an abuse of discretion and the case must be reversed and remanded for an exercise of informed discretion, unless the record clearly indicates the same result would follow.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944 [where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required]

People v. Parker (2013) 217 Cal.App.4th 498, 501–502 [case remanded because trial court mistakenly believed an imposed but suspended sentence is a bar to section 1203.4 relief]

Amelioration, Elements of crime, Sentencing

Case: 000303

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.

First Holding:

Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

AB 333

PEN 186.22

PEN 1192.7(c)(28)

PEN 667

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Second Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

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

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

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

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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

Abstracts and Minutes, Amelioration, Appellate Principles, Fines and fees, Sentencing

Case: 000301

Posted on by Gary McCurdy

Error and/or relief

Though affirming the trial court’s reimposition of the original sentence (minus the now-invalid enhancements for prior prison terms), it remanded the matter to the trial court to expressly state which fines and fees it was imposing, as it was not clear from the record.

First Holding:

The abstract of judgment lists several fines and fees, some of which are mandatory. The trial court, however, imposed only direct restitution (which is also listed in the abstract). A superior court’s failure to orally impose mandatory fines or assessments results in an unauthorized sentence that the appellate court may correct on appeal. But we do not believe the superior court sufficiently addressed ability to pay. It mentioned ability to pay only in the context of the direct restitution. It sidestepped the issue of ability to pay, treating it as irrelevant to the issue of direct victim restitution. As the court did not orally impose any additional fines or fees, the defendant had no meaningful opportunity to raise his ability to pay with respect to them.

Authority:

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153–1157

People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859 [ability-to-pay principles have not been extended to a victim restitution payment under section 1202.4(f)]

People v. Abrahamian (2020) 45 Cal.App.5th 314, 338

People v. Evans (2019) 39 Cal.App.5th 771, 777

Second Holding:

By statute, restitution fines and probation restitution fines under section 1202.4(b) and section 1202.45 that exceed the $300 minimum shall account for ability to pay. And because of equal protection principles, a court must consider ability to pay before imposing ancillary assessments under section 1465.8(a)(1) and Government Code section 70373. As to the remaining fine in the defendant’s case, under section 1202.5, the parties do not dispute the fine must be set with ability to pay in mind, but is mandatory if affordable. Given this, we will order a limited remand for the superior court to consider the mandatory fines and assessments omitted from its oral sentencing pronouncements in connection with defendant’s ability to pay.

Authority:

PEN 1202.5

People v. Kopp (2025) 19 Cal.5th 1, 30

Third Holding:

Regarding restitution fines, section 1465.9 has recently been amended to provide that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. At least one Court of Appeal has held a court conducting a section 1172.75 resentencing cannot reimpose a restitution fine that is more than 10 years old and has held, instead, the fine should be stricken. As no restitution fine has been properly imposed, we are in no position to consider striking it, and the superior court can consider these developments on remand.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038

Fourth Holding:

Walker approved Court of Appeal decisions that viewed section 1385 as calling for holistic balancing with special emphasis on the enumerated mitigating factors. Gonzalez did not create a new rule of law, but rather corrected a superior court’s misunderstanding regarding the term endangerment to public safety in section 1385(c)(2). The statute defines the term as a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others, which does not contemplate a laser-like focus on dangerousness at the time of sentencing. The superior court in Gonzalez had expressly limited its consideration to the defendant’s current dangerousness despite the call of the statute, a mistake not present here.

Authority:

PEN 1385(c)(2)

People v. Walker (2024) 16 Cal.5th 1024, 1036

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Fifth Holding:

We need not, and typically do not, address arguments raised for the first time in a reply brief.

Authority:

People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13

People v. Adir Internat., LLC (2025) 114 Cal.App.5th 275, 298