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Case Summaries

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Abstracts and Minutes, Plea bargains

Case: 000102

Posted on by Gary McCurdy

Error and/or relief

Our independent review of the record discloses that the trial court inadvertently failed to dismiss one of the charged counts after accepting the defendant’s no contest plea to the remaining counts. We shall modify the judgment to reflect dismissal of that count. The abstract of judgment contained several errors that must be corrected.

First Holding:

Because the court may not proceed as to the plea other than as specified in the approved plea, the court’s silence at the sentencing hearing regarding dismissal of a count was not an exercise of judicial discretion but rather a clerical error in the record of judgment.

Authority:

PEN 1192.5

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

People v. Panizzon (1996) 13 Cal.4th 68, 80 [parties must abide by the terms of the plea agreement, including the dismissal of other counts]

Second Holding:

The record of the oral pronouncement of the court controls over the clerk’s minute order, which may not modify the judgment it purports to digest.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

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

Discretion, Sentencing, Standard of review

Case: 000101

Posted on by Gary McCurdy

Error and/or relief

In 2022, defendant was resentenced under Penal Code section 1172.75 and the trial court struck seven years from his determinate term. Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety. We agree and accordingly vacate defendant’s sentence and remand for a full resentencing.

First Holding:

The court shall dismiss an enhancement if it is in the furtherance of justice to do so.” Section 1385(c)(2) provides: “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385

Second Holding:

We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion. An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

In re White (2020) 9 Cal.5th 455, 470

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

Third Holding:

The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229

Fourth Holding:

Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057, 1063

Abstracts and Minutes

Case: 000100

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be modified to reflect the court’s oral pronouncement of judgment. The abstract of judgment as it relates to the sentence should be corrected to reflect that counts 2 and 4 were stayed.

Holding:

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

Sentencing, Sixth Amendment

Case: 000099

Posted on by Gary McCurdy

Error and/or relief

We find the trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s right to a jury trial on the alleged aggravating factors. We vacate the sentence and remand the matter for litigation of the alleged aggravating circumstances and full resentencing. During the bench trial on the prior convictions, the trial court specifically noted that it was not convinced beyond a reasonable doubt that the prior convictions were true. It was therefore error for the court to rely on them.

Holding:

The trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s constitutional right to a jury trial on the alleged aggravating factors.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 768

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

Amelioration, Sentencing, Standard of review

Case: 000098

Posted on by Gary McCurdy

Error and/or relief

The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.

First Holding:

Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.

Authority:

PEN 1172.6

Second Holding:

Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives.

Authority:

PEN 1172.6

Third Holding:

We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fourth Holding:

Since the decision to appoint counsel is not discretionary, we review that without deference as well.

Authority:

Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988