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.

Sentencing, Sixth Amendment

Case 000018

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding:

The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence. In Wiley, our Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of the holding in Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, the court interpreted] section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

Erlinger v. United States (2024) 602 U.S. 821

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Second Holding:

Failure to object generally results in forfeiture and can apply to constitutional claims.

Authority:

People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court]

People v. Scott (2015) 61 Cal.4th 363, 406 [A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial]

People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]

People v. Achane (2023) 92 Cal.App.5th 1037

Third Holding:

A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney.

Authority:

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

An appellate court can exercise discretion to address a forfeited issue.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has engaged in violent conduct that indicates a serious danger to society or that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1086

People v. Lynch (2024) 16 Cal.5th 730, 776

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000017

Posted on by Gary McCurdy

Error and/or relief

We reverse the court’s denial of the resentencing petition, which was not based on a review of the record, and remand for further proceedings under section 1172.6(c).

First Holding:

The trial court may deny a section 1172.6 petition at the prima facie stage only if the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law. If a petitioner files a facially sufficient section 1172.6 petition by indicating, among other criteria, that he meets the statutory requirements for relief,it triggers the prosecution’s duty to submit a response and the petitioner’s right to file a reply on the issue of whether a prima facie case for relief exists.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262
People v. Strong (2022) 13 Cal.5th 698, 707
People v. Rodriguez (2024) 103 Cal.App.5th 451, 456
People v. Patton (2025) 17 Cal.5th 549, 558–559

Second Holding:

The record of conviction includes documents from jury trial such as jury instructions and verdict forms.

Authority:

People v. Gallardo (2024) 105 Cal.App.5th 296

Third Holding:

We review an order denying a petition at the prima facie stage de novo.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

Fourth Holding:

The right to seek replacement of counsel under Marsden applies at all stages of a criminal proceeding.

Authority:

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

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

People v. Carter (2024) 15 Cal.5th 1092, 1096 [Marsden motion sought disqualification of the public defender’s office and individual deputy public defender]

Fifth Holding:

The record of conviction will inform the court’s prima facie inquiry, allowing the court to distinguish clearly meritless claims.

Authority:

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

 

Jurisdiction, Probation Parole PRCS

Case 000016

Posted on by Gary McCurdy

Error and/or relief

Assembly Bill No. 1950 (2019–2020 Reg. Sess.) applied retroactively to shorten the defendant’s probation term from four years to two years, thereby retroactively depriving the trial court of jurisdiction to revoke his probation after passage of the two-year mark and rendering the revocation and termination of his probation invalid. [GARY NOTE: Penal Code sections 1203a for misdemeanors and 1203.1 for felonies, and there are exceptions to the one-year and two-year periods mentioned in those sections, so be sure to look at the actual applicable statute if the issue arises.]

First Holding:

Acts committed after the statutory shortening of the length of the probation term do not constitute violations of probation.

Authority:

AB 1950

People v. Faial (2025) 18 Cal.5th 199

Duty of counsel

Case 000015

Posted on by Gary McCurdy

Error and/or relief

You might want to draw a cuppa joe for this one.  It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients.  The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me. This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already). And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation. What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding:

Counsel has a duty to turn over client’s file to client.

Authority:

State Bar proposed opinion 19-0004 (duty to retain files while client is alive)
State Bar Rules of Professional Conduct rule 1.16

Second Holding:

As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.

Authority:

PEN 1054.9

Barnett v. Superior Court (2010) 50 Cal.4th 890

People v. Superior Court (Morales) (2017) 2 Cal.5th 523

Satele v. Superior Court (2019) 7 Cal.5th 852

Third Holding:

Review of nonappealable order is by petition for writ of mandate.

Authority:

In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]

Fourth Holding:

The appellate Court can treat the appellate opening brief as a petition for writ of mandate.

Authority:

Olson v. Cory (1983) 35 Cal.3d 390, 401

Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222

Fifth Holding:

Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.

Authority:

Legislative history, AB 1987 in 2018

Sixth Holding:

The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.

Authority:

Rose v. State Bar (1989) 49 Cal.3d 646, 653–655

White v. Molfetta (2021) 64 Cal.App.5th 628

Seventh Holding:

Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Authority:

PEN 1054.9

Eighth Holding:

Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”  I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”

That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.”

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.”

Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.

Authority:

Not much of one, Just Gary’s Brain

Discretion, Standard of review

Case 000014

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant contends that the trial court abused its discretion in denying her petition for mental health diversion. We agree that the court applied an incorrect legal standard in ruling on her petition. And we disagree with the People that we can imply from the court’s ruling the missing findings required by the statute. We thus conditionally vacate her no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding:

A trial court abuses its discretion when it applies the wrong legal standard. Application of an incorrect legal standard on Mental Health Diversion requires reversal.

Authority:

PEN 1001.36(c)

Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute]

People v. Moine (2021) 62 Cal.App.5th 440, 449

Second Holding:

The court reviews denial of Mental Health diversion under the abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Third Holding:

There is a presumption of correctness in court orders. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law. When the record clearly demonstrates what the trial court did, we will not presume it did something different.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Lafayette Morehouse Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384

Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015

Sentencing

Case 000013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating defendant’s custody credits. Because he participated in the sober living program pursuant to a court order, he is entitled to custody credit for the time he spent there. The People concede this issue. We agree with the parties.

First Holding:

Credit for time served that is miscalculated must be corrected.

Authority:

PEN 2900.5(a)

Second Holding:

Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings.

Authority:

People v. Davis (2023) 87 Cal.App.5th 771, 777 [Section 2900.5 has two components: First, that the placement be custodial, and second, that the custody be attributable to the proceedings relating to the same conduct for which defendant has been convicted]

People v. Billy (2024) 107 Cal.App.5th 246, 262-264, [Defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5]

Fines and fees, Sentencing

Case 000012

Posted on by Gary McCurdy

Error and/or relief

The restitution fine must be vacated because it was originally imposed more than 10 years ago. The court must calculate the actual time the defendant has already served and credit that against the subsequent sentence.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Sentencing, Sixth Amendment, Standard of review

Case 000011

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially committed constitutional and statutory error in imposing the upper term sentence based on aggravating factors not tried to the jury. The factors relied on were: the victim’s particular vulnerability; the offense was carried out with planning, sophistication, and professionalism; the defendant engaged in violent conduct which indicated a serious danger to society; the defendant had numerous prior convictions and they were of increasing seriousness.

First Holding:

The defendant is entitled to a jury trial on aggravating factors, which must be proved beyond a reasonable doubt before they can be relied on to impose the upper term (unless they are stipulated to by the defendant).

Authority:

PEN 1170

Second Holding:

The standard of review for evaluating the improper use of untried aggravating fact is whether error was harmless beyond a reasonable doubt.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821

Apprendi v. New Jersey (2000) 530 U.S. 466

People v. Lynch (2024) 16 Cal.5th 730

Third Holding:

The parties agree the court erred in relying on those circumstances to impose the upper term on the principal count. Their disagreement centers around whether such error was prejudicial under the circumstances. On the record before us, we conclude it was.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. French (2008) 43 Cal.4th 36, 47

Appellate Principles

Case 000010

Posted on by Gary McCurdy

Error and/or relief

The defendant appealed from the denial of his second petition for resentencing pursuant to Penal Code section 1172.6. The appellate court concluded that his petition is not barred by the doctrine of collateral estoppel and corresponding public policy considerations. He had never received notice of earlier denial. He is not barred from submitting a new petition.

First Holding:

Successive petitions for resentencing are not explicitly barred by section 1172.6 but may be barred by doctrine of collaterial estoppel. Application of collateral estoppel is not automatic, but is subject to public policy considerations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 950

Second Holding:

The court does not apply collateral estoppel with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.

Authority:

People v. Yokely (2010) 183 Cal.App.4th 1264, 1273

Third Holding:

Because of the retroactive nature and ever-evolving interpretations of the law surrounding section 1172.6, defendants may avail themselves of potential eligibility for relief under the statute that was not previously available under other judicial interpretations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 951

People v. Lovejoy (2024) 101 Cal.App.5th 860

Discretion, Jurisdiction, Sentencing

Case 000009

Posted on by Gary McCurdy

Error and/or relief

The defendant invited the trial court to recall his sentence under Penal Code section 1170.1. The court appointed counsel and set a hearing date, but concluded at hearing (with the defendant not being present) that no one-year priors were ever alleged [possibly conflating the request with a motion for resentencing under section 1172.5, which does pertain to resentencing on cases that had certain now-invalid prior prison term enhancements but is unrelated to an invitation for recall of a sentence under section 1170.1] and determined that he was not eligible for resentencing under 1172.1. Reversed.

First Holding:

By taking action on a purported motion that defendant did not make, it conferred jurisdiction on the Court of Appeal to rectify the error.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Second Holding:

A defendant is not entitled to file a petition seeking relief from the court under section 1170.1. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1170.1(c)

People v. Hodge (2024) 107 Cal.App.5th 985

Third Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Fourth Holding:

It is an abuse of discretion when a court applies improper criteria or an incorrect legal standard to decide an issue.

Authority:

Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 573

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000008

Posted on by Gary McCurdy

Error and/or relief

The defendant appealed from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6. The appellate court reversed and remanded the matter to the lower court because the evidence was insufficient to support the finding defendant aided and abetted the murder of the officer.

First Holding:

In this instance, the appellate court found that there was insufficient evidence to show that the defendant aided and abetted the murder.

Authority:

SB 1437

People v. Gentile (2020) 10 Cal.5th 830

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

Second Holding:

A trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence. Under this standard, the appellate court reviews the evidence in the light most favorable to the judgment below to determine whether it discloses substantial evidence that would allow a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Under a direct aider and abettor liability theory, the prosecution must prove the person who is not the actual killer engaged in the requisite acts and had the requisite intent to aid and abet the target crime of murder.

Authority:

People v. Pacheco (2022) 76 Cal.App.5th 118, 124

Fourth Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712-713

Fifth Holding:

It is well settled that aiding and abetting the commission of a crime requires some affirmative action.

Authority:

People v. Partee (2020) 8 Cal.5th 860, 868

Sixth Holding:

A person present at the scene of a crime—even one who is the criminal’s companion, knows a crime is being committed, fails to prevent it, and later expresses approval of it—is not guilty of aiding and abetting the crime if he takes no action to aid or encourage the crime.

Authority:

In re K.M. (2022) 75 Cal.App.5th 323, 329

 

Sentencing

Case 000007

Posted on by Gary McCurdy

Error and/or relief

The court reversed and remanded with instructions that the defendant be afforded a section 1172.75 resentencing hearing where prior was imposed but stayed or imposed and punishment stricken.

First Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050