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Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

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

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

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

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Immigration, Plea bargains, Standard of review

Case 001051

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a denial of a motion under section 1473.7 to vacate the defendant’s conviction because he did not adequately understand the immigration consequences of his plea more than 15 years ago. As neither the court nor the defendant had the benefit of Hernandez when the court ruled on the motion, we remand for the court to hold a proper hearing.

First Holding:

The defendant pleaded no contest to petty theft with prior convictions in violation of section 666. A conviction under section 666 is a crime involving moral turpitude, which is a ground of deportability and inadmissibility. The conviction also renders a noncitizen ineligible to apply for permanent residency, despite his strong ties to U.S. citizens. A crime involving moral turpitude is also a ground of mandatory immigration detention.

Authority:

8 U.S.C. sec. 1227(a)(2)(i)(I)

8 U.S.C. sec. 1182(a)(2)(A)(i)(I)

8 U.S.C. sec. 1255(a)

8 U.S.C. sec. 1226(c)(l)(A)

Second Holding:

Section 1473.7 allows a person who is no longer in criminal custody to file a motion to vacate a conviction or sentence. To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Third Holding:

On appeal from a denial of a motion under section 1473.7, we independently review the evidence in the record. When the trial court’s findings are based on written materials rather than the court’s observations of the defendant, we do not defer to those findings because we are similarly situated to the trial court when interpreting a cold record.

We may reach a different conclusion from the trial court on an independent examination of the evidence even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Fourth Holding:

Hernandez has clarified the analysis courts must apply when evaluating whether there was error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry. Courts must engage in a case-specific examination that involves assessing credibility and weighing circumstantial evidence.

The most direct evidence of a defendant’s subjective understanding consists of the defendant’s own statements to the court when entering the plea and in declarations or testimony given in support of their section 1473.7(a)(1) motion. However, while the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.

(Gary note: The opinion goes on to cite several examples contained in the Hernandez opinion that may corroborate the defendant’s assertions. If you have such a case, Hernandez is a must-read.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614-617

Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review

Case 001050

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed fines and ancillary costs without considering the defendant’s ability to pay. The ancillary fees imposed on the defendant are vacated, and this matter is remanded to the trial court with instructions to consider whether the defendant has the ability to pay the court operations assessment and the court facilities assessment imposed in his sentence.

First Holding:

We review the imposition of fines and assessments for abuse of discretion.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1043

Second Holding:

The respondent argues that the defendant forfeited the issue regarding his ability to pay because defense counsel did not object to the fines or assessments imposed. The defendant states that he personally objected that he was unable to pay, preserving the issue for appeal, or his counsel rendered ineffective assistance of counsel for failing to object.

In light of the ineffective assistance of counsel claim, we exercise our discretion to reach the merits of the defendant’s challenge.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

Third Holding:

Kopp divided court-ordered payments into three categories: fines, ancillary costs, and victim restitution.

Addressing fines, Kopp held that fines (including restitution fines under section 1202.4) are punitive in nature, that fines should be analyzed under the excessive fines clauses in the United States and California Constitutions, and that courts need not hold a hearing on a defendant’s ability to pay before imposing all fines.

By contrast, Kopp continued, ancillary costs (including court facilities fees under Government Code section 70373 and court operations fees under section 1465.8) are not punitive in nature, and equal protection principles require a rational basis for treating ancillary fees for indigent criminal defendants differently than indigent civil litigants. Finding no such basis, Kopp concluded that, when requested, trial courts must consider a defendant’s ability to pay ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 18-24, 25, 28, 30

Fourth Holding:

Points perfunctorily asserted in briefing on appeal without argument in support are not properly raised.

Authority:

People v. Williams (1997) 16 Cal.4th 153, 206

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 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 amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

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

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Due process, Duty of the court, Sentencing, Sixth Amendment, Standard of review

Case 001048

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.

First Holding:

CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.

Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.

The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.

Authority:

U.S. Const., Sixth Amend. and Fourteenth Amend.

Calif. Const., art. I

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

Second Holding:

This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Third Holding:

The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Fourth Holding:

On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]

People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4