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.

Effective assistance of counsel, Sentencing

Case 000006

Posted on by Gary McCurdy

Error and/or relief:

The trial court did not actually dismiss a prior conviction it had agreed to dismiss under the bargain. The court modified the judgment by dismissing the prior conviction in keeping with the bargain. (It does not appear that the defendant was sentenced to time on the prior; simply the court forgot to dismiss it on sentencing.)

First Holding:

The appellate court reviews the record as it existed at time of the lower court’s ruling.

Authority:

In re Kenneth D. (2024) 16 Cal.5th 1087, 1102 [appellate court reviews record as it existed when lower court ruled]

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance must be demonstrated on appellate record]

Second Holding:

A certificate of probable cause is required to challenge on appeal a no contest plea on the grounds of ineffective assistance of counsel.

Authority:

PEN 1237.5

Rules of Court rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694-695

People v. Richardson (2007) 156 Cal.App.4th 574, 596 [pre-plea ineffective assistance of counsel]

Third Holding:

A claim of ineffective assistance of counsel requires not only a showing of deficient performance but also prejudice–a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceedings would have been different.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688

People v. Patterson (2017) 2 Cal.5th 885, 900

Fourth Holding:

Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, the court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1051

Fifth Holding:

Senate Bill No. 567 does not apply where defendant stipulated to upper term [this issue may still be pending in the Supreme Court].

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 ]Although Senate Bill No. 567’s amendments to section 1170 apply to this case, defendant cannot benefit from them because he stipulated to the upper term]

People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154 [disagreeing with Mitchell]

Sixth Holding:

Where not charged with substituted enhancement, the court has no authority to make findings that change the character of the crime or increase sentence.

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [because the defendant was not charged with a substituted enhancement, the trial court was without authority to make findings that change the character of the crime or enhancement so as to increase the sentence]

Seventh Holding:

The court must proceed in keeping with Penal Code section 1192.5 and abide by terms of agreement. Because the trial court may not proceed with regard to the plea in a manner other than as specified in the approved plea (§ 1192.5), the trial court’s silence at the sentencing hearing regarding the dismissal of the strike allegation was not an exercise of judicial discretion, but rather a mistake in creating a record of the judgment.

Authority:

PEN 1192.5

In re Candelario (1970) 3 Cal.3d 702, 705

Appellate Principles, Sentencing, Statutory interpretation

Case 000005

Posted on by Gary McCurdy

Error and/or relief:

Section 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken. Because the defendant was eligible for relief, the judgment is reversed and remanded to the lower court.

First Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken. Any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined section 6600(b) of the Welfare and Institutions Code is legally invalid. If a court determines the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

People v. Espino (2024) 104 Cal.App.5th 188, 194, review granted Oct. 23, 2024, S286987 [the majority concluded section 1172.75 applies when the punishment for the section 667.5(b) enhancement was imposed but stricken]

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Cota (2025) 112 Cal.App.5th 1118

Second Holding:

The court reviews de novo interpretations of statutes.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

Third Holding:

The court’s fundamental task in construing statutes is to interpret them in a way that gives effect to the Legislature’s intent.

Authority:

Even Zohar Construction & Remodeling Inc. v. Bellaire Townhouses LLC (2015) 61 Cal.4th 830, 837

Fourth Holding:

Because the statutory language is generally the most reliable indicator of that intent, the court looks first at the words themselves, giving them their usual and ordinary meaning.

Authority:

People v. Ruiz (2018) 4 Cal.5th 1100, 1105

Fifth Holding:

If the statute’s language is unambiguous then its plain meaning controls. If the statute’s language is unclear, ambiguous, or susceptible to more than one reasonable interpretation, we may look at extrinsic sources, including legislative history, as a guide to construing the statute.

Authority:

People v. Scott (2014) 58 Cal.4th 1415, 1421

Amelioration, Sentencing

Case 000004

Posted on by Gary McCurdy

Error and/or relief:

The defendant was sentenced to a Three Strikes term for prior serious felonies, both gang related felonies that would not comport with AB 333 today given that he admitted them under the elements of the crimes in effect in 2015 and 2019 prior to AB 333. They can’t be used as priors. The DA may choose to retry those allegations on remand.

First Holding:

Gang allegations on prior convictions cannot be sustained if not in compliance with AB 333.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The DA may choose to retry those allegations on remand.

Authority:

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

Discretion

Case 000003

Posted on by Gary McCurdy

Error and/or relief:

The defendant contends, and the People concede, the case must be remanded for the juvenile court to declare whether his grand theft offense was a misdemeanor or a felony, as required by section 702. We agree and remand with instructions.

Holding:

Juvenile court must declare whether the wobbler grand theft offense was a misdemeanor or a felony. Absent a court’s express declaration or other evidence the juvenile court was aware of, and exercised, its discretion to determine the felony or misdemeanor nature of a wobbler, the matter must be remanded. Section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor.

Authority:

Cal. Rules of Court, rule 5.790(a)(1)

In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1207

In re Kenneth H. (1983) 33 Cal.3d 616, 619

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re F.M. (2023) 14 Cal.5th 701, 712

Elements of crime, Vicarious liability

Case 000002

Posted on by Gary McCurdy

Error and/or relief:

Mere presence at the scene is not substantial evidence to support conspiracy.

Holding:

Mere presence at the scene of a crime is insufficient to establish participation in a conspiracy to commit that crime or aiding and abetting its commission.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165 [Because the law will not recognize a rule of guilt by association, we insist on proof of a defendant’s knowledge of, and specific intent to further, [a conspiracy’s] unlawful ends]

People v. Francis (1969) 71 Cal.2d 66, 72

In re Michael T. (1978) 84 Cal.App.3d 907, 911 [Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting]

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000001

Posted on by Gary McCurdy

Error and/or relief:

On resentencing more than 10 years after conviction, the court must strike the unpaid balance of the $10,000 restitution fine, and it must recalculate the defendant’s credit for time served.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9(d) [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.]

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37

Gary Musings

Welcome Post

Posted on by Gary McCurdy

Welcome to the kickoff of my professionally-created website! I’m reviewing California Court of Appeal opinions that are NOT published, and pulling out of them gems of wisdom from any case in which the court has provided some level of relief to a defendant (even if so little as getting an abstract of judgment to properly reflect the sentence or the crimes of conviction).

What You’ll Find in These Summaries

As I’ve said more elaborately elsewhere on this site, the unpublished opinions cannot be cited, but they have to base their decisions on cases that HAVE been published. So for each tidbit I have extracted from the opinion, I have listed the citable authority relied on by the Court of Appeal. Because the opinion cannot be cited as authority, my focus is not so much on the reasoning behind the result. (For example, I likely will not recite all the facts that show why the officers did not have probable cause for a warrantless search.)

Instead, I will pull out principles that might be useful in ANY search and seizure appeal, or even in any criminal appeal no matter the issue. What is the standard of review? When does the appellate court defer to the reasoning of the superior court? When does the appellate court conduct independent review? De novo review? Is this Watson error or Chapman error (important in deciding whether an acknowledged error results in relief or is found to not have made a difference, so no harm, no foul)?

Not Your Typical Summaries

Some summaries will lay out the context in which the issue arises. Maybe include some background on laws regarding the recall of the sentence in light of changes in the definitions of murder. Or how enhancements or selection of sentencing scheme may have to be reexamined in light of changes in the elements required for conduct to be criminal (such as whether a strike conviction for a gang offense is still a valid strike in light of changes in the gang offense statute). And so on.

So these summaries are likely different from what you might be used to reading in legal newspapers that summarize published opinions, or the summaries you might run across in publications by various defense-oriented organizations. I’m less interested in pointing out the reason the court ruled the way it did, and more interested in what “universal” rules it applied in reaching its result. (The same principles are cited in the unpublished decisions that do NOT result in relief, but I can’t read and summarize them all!)

Why Universal Rules, Not Case-Specific Facts?

Why that focus? Because every appellate brief has to inform the appellate court of the applicable rules! And since it is expected, it is important to know the options so you can intelligently argue in favor of the option that most favors your client or, if there is only one option, how YOUR client is entitled to win even given that principle. For example, if you know that there was no objection in the trial court to preserve what would otherwise be a good issue (thus subjecting it to not being even considered by the court, as it was forfeited for lack of timely objection), then you can frame your argument to demonstrate how an objection would have been futile, or how the issue is a straight question of law that the court can consider despite the lack of objection, or why, in your client’s case, the court should exercise its discretion and treat the issue anyway (which it has the right to do). And you may find authority in the PUBLISHED cases cited in the unpublished cases,

If you can characterize an error as a violation of a federal constitutional right, then it is likely that the Chapman standard applies (reversal unless the error is harmless beyond a reasonable doubt). If it is argued as a state error, then prejudice will be assessed under Watson–no reversal unless, but for the error, there is a reasonable probability that there would have been an outcome more favorable to the defense. So whatever your error is, you want to persuade the court–based on the law, of course, not just on desire–that the Chapman standard applies, not Watson. Or if you can’t, then you need to actively demonstrate just how a better result for your client would likely have been the outcome had the error not been committed. Courts of Appeal are seldom swayed by bald statements “and my client was prejudiced by the error.” Maybe the citations following the summaries on prejudice will give you the info you need to make your best case for a suitable finding of prejudice.

Using Citations as a Research Springboard

While you cannot cite the unpublished opinion itself, you can review the citations I have listed below the discussion of the lack of objection or prejudice (or whatever). While not universally true, it is not unusual for the published opinion the court relied on to have a factual situation somewhat like the case it is deciding. Maybe that citation will be a springboard for you to find one or more cases very close to your own. The closer your research relies on cases similar to your own, the harder it is for the opposition to argue that the cited case is so distinguishable as to be not helpful.

How to Read These Summaries

My plan is to have a brief statement of context (a summary of the summary) at the beginning of each post, but I hope you consider it to be simply the context in which the principles were announced, and that you click to the full summary to see those “rules” that the courts generally follow to guide their analyses. Don’t look at a summary that mentions burglary and ignore it because your case is a drug offense. The summary itself may have little to do with the law of burglary, and instead it will contain “binding” maxims that you’ll need to be aware of (and address) in your briefing, whether your case is a burglary or a drug sale or a homicide or ….

Want the Full Opinion?

Remember also that, if you are an attorney, I will, on your request, send you the full unpublished decision to the email address you have showing on the state bar website. (Unless, of course, there is an overwhelming demand for this service, in which case I’d probably have to rescind the offer.)

Happy Hunting!

Gary