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Case Summaries

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Amelioration, Sentencing

Case: 000416

Posted on by Gary McCurdy

Error and/or relief

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6. We affirm the denial but remand to give the defendant the opportunity file an amended petition.

First Holding:

A trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has stated a prima facie entitlement to relief under section 1172.6.

Authority:

PEN 1172.6

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

Second Holding:

Hearsay testimony by a police officer at a preliminary hearing could support a trial court’s finding that the petitioner did not make a prima facie case under section 1172.6.

Authority:

People v. Rodriguez (2026) 117 Cal.App.5th 1179

Discretion, Duty of the court, Juveniles, Standard of review

Case: 000415

Posted on by Gary McCurdy

Error and/or relief

The court failed to show it recognized and exercised its discretion to designate second degree burglary as a felony or a misdemeanor, and the program condition of probation delegated impermissibly broad discretion to the probation officer

First Holding:

Second degree burglary is a “wobbler,” that is, an offense that may be punished as either a felony or a misdemeanor. This determination is important not only because felonies are subject to longer periods of confinement, but also because felony convictions have additional adverse consequences, including use without limitation for impeachment under Proposition 8 in subsequent criminal proceedings, enhancement of sentences, and the general blight upon the character of persons convicted of felonies. To ensure that juvenile courts are aware of their discretion to charge wobblers as misdemeanors and that they consciously choose to treat wobblers committed by juveniles as felonies, juvenile courts are required to expressly declare how they are treating such offenses. If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Authority:

WIC 707

People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6

In re Manzy W. (1997) 14 Cal.4th 1199, 1207, 1209

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

Second Holding:

Although remand is not automatically required when a juvenile court fails to expressly declare that a wobbler is a felony or misdemeanor, to establish prejudice a juvenile need not show a reasonable probability of a more favorable outcome. Also, challenges under Welfare and Institutions Code section 702 are not forfeited by failure to object at trial. Instead, in this context, the key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. The record in this case does not reflect that the court was aware of its discretion to properly exercise it. A minute order may not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or a felony.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704, 711-714, 717

In re Manzy W. (1997) 14 Cal.4th 1199, 1209

Third Holding:

We review juvenile placement decisions for abuse of discretion. It was not an abuse of discretion to order the minor to be placed in a secure facility.

Authority:

In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154

Fourth Holding:

In placing the minor in a secure facility, the juvenile court imposed a number of terms and conditions, including a requirement that he participate in and complete any appropriate programs as directed by [his] Probation Officer. We review orders of this nature de novo. This condition is an improper delegation of judicial authority. Probation conditions may be challenged for the first time on appeal if they are challenged as unconstitutional on their face and the challenge therefore presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

Fifth Holding:

Although juvenile courts have greater discretion to formulate probation terms than adult criminal courts, their discretion to delegate authority is restricted by the separation-of-powers doctrine. Under the California Constitution, separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible. Thus, a court may delegate to a probation officer authority to specify the details necessary to effectuate the court’s probation conditions. However, the separation-of-powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. Consequently, a court may not delegate complete discretion over a significant aspect of the court’s legal control. To satisfy the separation-of-powers doctrine, a court delegating judicial authority to a probation officer must dictate the basic policy of a condition of probation.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910, 919

In re D.N. (2022) 14 Cal.5th 202, 208-209, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902, 903 [holding impermissible delegation of authority permitting probation officer to choose between residential and outpatient substance abuse programs]

People v. O’Neal (2008) 165 Cal.App.4th 1351, 1359 [the court’s order cannot be entirely open-ended]

People v. Leon (2010) 181 Cal.App.4th 943, 952 [holding impermissible delegation of authority permitting probation officer to authorize probationer to attend court proceedings and otherwise barring probationer from attending court proceedings unless a party or witness]

Appellate Principles, Equal protection, Probation Parole PRCS, Sentencing

Case: 000414

Posted on by Gary McCurdy

Error and/or relief

The court erroneously applied the doctrine of the law of the case to deny the defendant’s section 1170(d) petition in which he sought resentencing under its provisions because 50 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP).

First Holding:

In his original appeal from the 2010 conviction the Court of Appeal concluded that 50 years to life was not the functional equivalent of an LWOP sentence. The trial court denied his petition under section 1170(d) in 2023 on the basis that, under the law of the case doctrine, an appellate court had previously ruled that his sentence was not the functional equivalent of LWOP. However, years after the original appeal was decided, the Supreme Court determined that 50 years to life was the functional equivalent of LWOP.

Authority:

People v. Contreras (2018) 4 Cal.5th 349

Second Holding:

The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and this although in its subsequent consideration the court may be clearly of the opinion that the former decision is erroneous in that particular.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6

People v. Boyer (2006) 38 Cal.4th 412, 442 [The law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on rehearing of an issue is substantially the same as that upon which the appellate ruling was based.]

People v. Barragan (2004) 32 Cal.4th 236, 253

People v. Vizcarra (2015) 236 Cal.App.4th 422, 430 [The doctrines of collateral estoppel and law of the case bar a defendant from raising an issue that was raised and rejected in a prior appeal.]

Third Holding:

The law of the case doctrine generally precludes a party from obtaining appellate review of the same issue more than once in a single action. It is well settled, however, that the doctrine may be disregarded where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.

Authority:

Truck Ins. Exchange v. Kaiser Cement and Gypsum Corp. (2024) 16 Cal.5th 67, 87, fn. 6

People v. Strong (2022) 13 Cal.5th 698, 716-717 [Issue preclusion (collateral estoppel) does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.]

Fourth Holding:

Here, although defendant raised and this court previously rejected the issue of whether, as a juvenile offender, defendant’s 50-year-to-life sentence was the functional equivalent of LWOP, the law on the issue has changed significantly and is currently split.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 268 [eligibility for parole pursuant to sec. 3051 mooted any assertion that defendant’s 50-year-to-life sentence was the functional equivalent of LWOP]

People v. Contreras (2018) 4 Cal.5th 349, 359 [50 years to life for juvenile offender ineligible for sec. 3051 relief is the functional equivalent of LWOP]People v. Heard (2022) 83 Cal.App.5th 608, 624 [103 years to life is the functional equivalent of LWOP]

People v. Sorto (2024) 104 Cal.App.5th 435, 441 [140 years to life is the functional equivalent of LWOP]

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061 [107 years to life is the functional equivalent of LWOP]

People v. Munoz (2025) 110 Cal.App.5th 499, 513, dis. opn. of Feuer, J. [ majority holds 50 years to life is not the functional equivalent of LWOP, but the dissent would hold that it is], review granted June 25, 2025, S290828

People v. Baldwin (2025) 113 Cal.App.5th 978, 999 [44 years to life not functional equivalent of LWOP]

People v. Thompson (2025) 112 Cal.App.5th 1058, 1081, review granted Sept. 24, 2025, S292540 [50 years to life not functional equivalent of LWOP]

People v. Perez (2013) 214 Cal.App.4th 49, 58 [parole eligibility at 47 years of age was by no stretch of the imagination functional or de facto LWOP]

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260, review granted Sept. 17, 2025, S292070 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Isayev (2025) 113 Cal.App.5th 1117, review granted Nov. 12, 2025, S292860 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Lara (2025) 115 Cal.App.5th 484, review granted Dec. 30, 2025, S294095 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

Abstracts and Minutes

Case: 000413

Posted on by Gary McCurdy

Error and/or relief

Errors in the abstract of judgment must be corrected. Among other things, the abstract does not reflect that in the defendant’s prior appeal, this court ordered the section 12022.5 enhancement stricken, not stayed.

First Holding:

Clerical errors in abstracts of judgment are subject to correction.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 63

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

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

Probation Parole PRCS, Sentencing

Case: 000412

Posted on by Gary McCurdy

Error and/or relief

The electronics search condition is invalid under Lent and must be stricken.

First Holding:

In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. The court may impose and require such reasonable conditions as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. The trial court’s discretion, although broad, nevertheless is not without limits.

Authority:

PEN 1203.1

People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121

Second Holding:

A three-prong test determines whether a probation condition is unreasonable. A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. All three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

The first Lent prong is satisfied because the record does not show a relationship between the defendant’s use of electronic devices and the offending conduct sufficient to justify the search condition. There is no information in the record that he used any kind of electronic device to commit, plan, or facilitate his offenses of molesting a child or dissuading a witness. Nor is there any mention whatsoever of his use of a mobile phone, computer, or social media account in connection with the victim or any other conduct that might be said to relate to the offenses in this case.

Authority:

People v. Castellanos (2020) 51 Cal.App.5th 267, 270, 271, 275–276 [defendant had three cell phones in his car at the time of arrest and cell phones are frequently used in drug sales]

People v. Appleton (2016) 245 Cal.App.4th 717, 719–720 [defendant met victim through social media]

Fourth Holding:

As for the second Lent prong, it goes without saying that the use of electronic devices is not criminal in and of itself.

Authority:

In re Amber K. (2020) 45 Cal.App.5th 559, 566

Fifth Holding:

The third Lent prong contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. It requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. Nothing in the testimony at the preliminary hearing, the probation report, or the record of the defendant’s personal history revealed anything about his electronics use that might be connected to his past crimes or potential future criminality. The defendant had no prior history of arrests, convictions, or probation, and his risk of recidivism was assessed as below average. Thus, as in Ricardo P., the burden imposed by the electronics search condition on the defendant’s privacy is substantially disproportionate to the condition’s goal” of deterring future criminality.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

In re David C. (2020) 47 Cal.App.5th 657, 663–664

Abstracts and Minutes, Sentencing

Case: 000411

Posted on by Gary McCurdy

Error and/or relief

The trial court orally sentenced appellant to “life, with the minimum parole date of 7 years” for the attempted murders in counts 7, 8, and 9. It remarked that the sentences on counts 8 and 9 were, “effectively, 7-years-to-life,” and that the sentence on each count when the firearm enhancements were included was “effectively 8-years-to-life.” The minute order reflects terms of “life plus 7 years” on these three counts, and the abstract of judgment indicates the sentence on each of these counts is “7 years to life.” The abstract of judgment and minute order must be corrected to reflect sentences of life on each of the attempted murder counts (counts 7, 8, and 9), plus one year and four months for each related firearm enhancement.

First Holding:

Section 664(a) prescribes a punishment of imprisonment in the state prison for life with the possibility of parole for the crime of attempted willful, deliberate, and premeditated murder. The minimum term a person sentenced to life must serve before parole is seven years; that minimum applies to each consecutively imposed life term.

Authority:

PEN 664(a)

Second Holding:

Although seven years to life is a common shorthand for such a sentence, it is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility. There is a minimum parole eligibility of seven years, but that is not part of the sentence that is pronounced. Thus, a more accurate statement of the sentence for attempted murder is simply life, plus any determinate enhancements. The trial court accurately stated that the sentences on counts 7, 8, and 9 were life, with the minimum parole date of 7 years, but the minute order and abstract recording the trial court’s oral pronouncement incorrectly impose a minimum term on the attempted murder sentences.

Authority:

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4

People v. Robbins (2018) 19 Cal.App.5th 660, 678

Third Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment or minute order, the oral pronouncement controls, and we may order correction of any such errors.

Authority:

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

Juveniles

Case: 000410

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the juvenile court to correctly determine the maximum period of confinement the minor may be subjected to under the commitment order. The correct term appears to be five years, less than the term announced by the juvenile court.

Holding:

When a minor is named a ward of the court and removed from the custody of his parent, the juvenile court must set a maximum term of confinement that does not exceed the middle term of imprisonment that could be imposed on an adult convicted of the same offense. A court is prohibited from committing a juvenile to any juvenile facility for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. The court may aggregate terms for multiple counts or previously sustained petitions in the manner set out in Penal Code section 1170.1 for adults, requiring subordinate felony terms be imposed at one-third the middle term. The same rule applies to misdemeanors.

Authority:

WIC 726

In re David H. (2003) 106 Cal.App.4th 1131

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

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

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

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

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

People v. Monroe (2022) 85 Cal.App.5th 393, 402

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

Fourth Holding:

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205

Amelioration, Retroactivity, Sentencing

Case: 000408

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court should have considered the impact of AB 333 on the prior serious felony and strike convictions. We agree with the parties that AB 333 applies retroactively to the substantive gang offense conviction and all the gang-related allegations. We therefore vacate the resentencing order, reverse the substantive gang offense conviction, and vacate the findings on the gang enhancement, prior serious felony, and strike prior. On remand, the prosecution may retry all the gang-related allegations under the new law.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, SB 483 (2021−2022 Reg. Sess.) added what was later renumbered as section 1172.75 to make this change retroactive. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid’ enhancements. Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled.

Authority:

PEN 667.5

PEN 1172.75

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

In 1988, the Legislature enacted section 186.20 et seq. to eradicate criminal activity by street gangs. Among other things, the Act created the substantive offense of active participation in a criminal street gang and a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with a criminal street gang.

Effective January 1, 2022, AB 333 made several changes to the criminal street gang laws. First, 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.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Also, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26.

Authority:

AB 333

PEN 186.22

People v. Valencia (2021) 11 Cal.5th 818, 828-829

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

People v. Clark (2024) 15 Cal.5th 743, 753

Third Holding:

The recall of the defendant’s sentence under section 1172.75 rendered his judgment no longer final, and the defendant was entitled to the presumption of retroactivity of ameliorative legislation under Estrada. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.

Authority:

People v. Lopez (2025) 17 Cal.5th 388

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Nasalga (1996) 12 Cal.4th 784, 792

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

People v. Mitchell (2023) 97 Cal.App.5th 1127, 1137–1142 [AB 333 applied retroactively to the defendant’s substantive gang offense conviction and enhancement]

Fourth Holding:

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It was presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Here, the defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Reversal is required unless the error is harmless pursuant to Chapman.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s sentence effectively vacates his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

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

Fifth Holding:

As the judgment is no longer final, it is also necessary for the trial court to reassess whether the prior serious felony and strike conviction were based on gang activity, and whether the conduct then would have been considered unlawful gang activity under AB 333. On remand, the prosecution may elect to retry whether the prior conviction qualifies as a serious felony applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607-608

People v. Farias (2023) 92 Cal.App.5th 619, 650–653

Discretion, Jury trial, Sixth Amendment, Statutory interpretation

Case: 000407

Posted on by Gary McCurdy

Error and/or relief

Although the defendant initially decided not to testify at his trial, he changed his mind just before oral argument, after the court granted the prosecution’s motion to dismiss one of the counts and denied the defense motion for acquittal. As the People concede, it was error for the court to deny his request.

First Holding:

It cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 49

Second Holding:

After a litigant rests their case, the trial court has wide discretion to reopen a criminal matter to receive additional evidence. When this court reviews a trial court’s decision to preclude the defense from reopening the case to present additional evidence, we must consider four factors: (1) The stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. The trial court’s denial of the defendant’s request to testify is subject to the harmless beyond a reasonable doubt standard enunciated in Chapman.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 66

People v. Masters (2016) 62 Cal.4th 1019, 1069

Chapman v. California (1967) 386 U.S. 18, 24

People v. Allen (2008) 44 Cal.4th 843, 871–872

Third Holding:

With respect to the first factor, the state of the proceeding, when the defendant has recently rested his case, closing argument has not begun, and the jury has not been instructed, granting defendant’s request does not entail any great inconvenience. Only 25 minutes passed between when the defense rested and when the defendant expressed that he wished to testify.

Authority:

People v. Carter (1957) 48 Cal.2d 737, 757

Fourth Holding:

As to the defendant’s diligence, the trial court asserted it could not reopen the case because the defense had moved for acquittal, and the prosecution had dismissed count 2. This rationale is not supported by the law. Section 1118.1 provides, in relevant part, that if a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right. Here, the court took the defendant’s waiver and allowed the defense to rest before hearing its motion for acquittal. Thus, when the defendant decided to testify, the defense had to make a motion to reopen, which the court denied. Under section 1118.1, the court should have ruled on both the motion for acquittal and the prosecutor’s motion to dismiss before inquiring about the defendant’s decision to testify. Had this procedure been followed, the defendant would have had the opportunity to offer evidence after the denial of the motion for judgment of acquittal.

Authority:

PEN 1118.1

Fifth Holding:

The third factor is whether reopening the case will cause the jury to give undue emphasis to the new evidence. A jury may accord undue weight to evidence which is admitted close to the time deliberations begin. Here, at the time the defendant changed his mind, the jury had not been told whether he intended to testify. Further, although the court had advised the jury that the presentation of evidence was complete, that advisement occurred only shortly before the defendant changed his mind. For these reasons, we have no reason to believe that the jury would have afforded undue weight to his testimony if the court had reopened the defense case and this factor also shows an abuse of discretion.

Authority:

People v. Funes (1994) 23 Cal.App.4th 1506, 1521

Sixth Holding:

The final factor, the significance of the evidence, also shows error by the trial court. The most important witness for the defense in many criminal cases is the defendant himself. This was not a lopsided case with overwhelming and incontrovertible evidence of guilt, as demonstrated by the jury’s acquittal on count 1. Courts must evaluate whether the interests served by restricting a defendant’s right to testify justify the limitation imposed on this most basic right of a defendant in a criminal case—to present his own version of events in his own words. Here, the trial was relatively short and involved a single defendant, and the jury instructions and closing arguments had not yet occurred at the time Mendoza made his request. The defendant’s testimony may have been highly significant and could have altered the outcome of the case. Under this four-factor test, the court’s decision constituted an abuse of its discretion.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 51-52, 56

Seventh Holding:

Finally, as the parties agree, the error was not harmless beyond a reasonable doubt. The jury deliberated for over three hours and acquitted the defendant of count 1, suggesting it entertained doubts about at least certain aspects of the prosecution’s case. It cannot be said that the jury necessarily would have reached the same result if the court had permitted the defendant to testify.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000406

Posted on by Gary McCurdy

Error and/or relief

The provision in the probation order requiring the defendant to reimburse the county for public defender and probation related services must be stricken.

Holding:

Section 1465.9(a) provides that the balance of any court-imposed costs imposed under former section 987.8, authorizing public defender fees, and former section 1203.1b, authorizing probation services fees, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we will strike the portion of the probation order authorizing these fees.

Authority:

PEN 1465.9(a)

People v. Portillo (2023) 91 Cal.App.5th 577, 602-603

People v. Greeley (2021) 70 Cal.App.5th 609, 625

Duty of the court, Jury trial

Case: 000405

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in discharging one of only two Black prospective jurors, over defense counsel’s objection, where the prosecutor cited the juror’s multiple family members with criminal records as a basis for the use of peremptory challenge, in violation of Code of Civil Procedure section 231.7. We reverse and remand the matter for a new trial.

First Holding:

Our standard of review for section 231.7 claims is defined by statute as follows: The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under [231.7(c)] and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”

Authority:

CCP 231.7(j)

Second Holding:

The exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution, as well as a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution.

Authority:

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Third Holding:

Section 231.7(a) prohibits the use of a peremptory challenge to remove a prospective juror on the basis of their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. It sets up a strict procedure for determining whether a peremptory challenge of a jury should be allowed. It lists several nonexclusive factors the court may consider when evaluating the totality, including whether the objecting party is a member of the same perceived cognizable group as the challenged juror. But it also goes on to list circumstances where a peremptory challenge is presumed invalid absent some further showing by the proponent by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s defined protected status.

Authority:

CCP 231.7

Fourth Holding:

To allow a party to bury presumptively invalid reasons under an overarching facially neutral reason without the required findings under section 231.7(f), would render section 231.7(e) ineffective.

Authority:

People v. Uriostegui (2024) 101 Cal.App.5th 271, 280