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Case Summaries

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Appellate Principles

Case 000732

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a victory, but it contains an important principle. If an appellate wilfully absconds from the jurisdiction of the court, the Court of Appeal may dismiss the appeal. Which it did here. The prosecution moved to transfer the juvenile matter to an adult court of criminal jurisdiction. While the motion was still pending, the minor failed to appear in court. His counsel informed the court that she no longer had communication with the minor.

The juvenile court issued a warrant for failure to appear. An investigator found that the minor took a flight to England and did not return. The juvenile court proceeded with the transfer motion with the minor in absentia and granted the transfer motion, finding clear and convincing evidence that the minor was not amenable to rehabilitation under the juvenile court’s jurisdiction. As of the opinion date, the minor has not been located and remained at large.

First Holding:

An appellate court may dismiss the appeal of a defendant who is a fugitive from justice.

Authority:

Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531

Second Holding:

A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.

Authority:

MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277

Third Holding:

Courts have no jurisdiction over persons charged with crime, unless in custody actual or constructive. It would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be effective.

Authority:

People v. Redinger (1880) 55 Cal. 290, 298

Fourth Holding:

Appellate disentitlement based on fugitive status is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction for a party’s flight. Various justifications have been advanced for its application: (1) assuring the enforceability of any decision that may be rendered on or following the appeal; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the other side caused by the defendant’s escape.

Authority:

People v. Puluc–Sique (2010) 182 Cal.App.4th 894, 897–898

Duty of the court, Sentencing

Case 000731

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. We remand with directions to the trial court to recalculate the defendant’s custodial credits and to reimpose the restitution order with joint and several liability.

First Holding:

When the defendant was originally sentenced in 2008, the trial court imposed a restitution order of (more than $50,000) on all three defendants. The court ordered joint and several liability, that is, each defendant is entitled to a credit for any actual payments by the other. The trial court has the authority to order direct victim restitution paid by all defendants jointly and severally. On resentencing, the court reimposed an order for restitution in the same amount, but did not make an order of joint and several liability. To prevent the possibility of unjust enrichment—a double recovery by the victim—the restitution order must be corrected to reflect joint and several liability.

Authority:

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

People v. Leon (2004) 124 Cal.App.4th 620, 622 [if two defendants convicted of the same crime caused economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Second Holding:

The trial court erred in delegating the recalculation of the defendant’s custody credits to the Department of Corrections and Rehabilitation. The trial court should have recalculated and pronounced the number of custody credits the defendant had garnered to the date of resentencing. When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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

Abstracts and Minutes

Case 000730

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment misstates the actual sentence imposed and must be corrected.

First Holding:

Initially, the defendant’s aggregate 42-years-to-life sentence consisted of seven years to life for the attempted murder, plus 10 years for the gang enhancement, and 25 years to life for the gun enhancement. In the defendant’s prior appeal, we modified the sentence as follows: the term specified for count 1 is modified to provide for a term of life with possibility of parole. For the gang enhancement, the 10-year term is stricken; instead, the judgment shall provide that defendant shall not be paroled until a minimum of 15 calendar years has been served. We made no change to the 25 to life firearm enhancement.

The abstract of judgment does not reflect the sentence actually imposed. For clarity, the amended abstract of judgment should be modified as follows: the term specified for attempted premeditated murder on count 1 is modified to provide for a term of life with the possibility of parole. For the gang enhancement under section 186.22(b)(1)(C), the 10-year term is stricken, and defendant shall not be paroled until a minimum of 15 years has been served. For the gun enhancement in violation of section 12022.53(d), the term is 25 years to life. Defendant’s aggregate sentence is 32 years to life with parole eligibility after 40 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [courts may correct clerical errors at any time, and may order the correction of abstracts of judgment that do not accurately reflect the sentence imposed]

Amelioration, Sentencing

Case 000729

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court was required to resentence the defendant under the Three Strikes Reform Act of 2012 to determine whether he should be sentenced as a second strike defendant under the Act, subject to a finding that such resentencing would present an unreasonable risk of danger to the public in the context of the Act.

First Holding:

The Three Strikes Reform Act of 2012 limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion” with a goal of eliminating disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1170.126

PEN 1172.75

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849

Second Holding:

In Guevara, the Supreme Court held that because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850

Third Holding:

Section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

On remand, the trial court should conduct an analysis of whether defendant, at the time of the hearing, continues to pose a danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17

Fines and fees, Sentencing

Case 000728

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court should have vacated the restitution fine that was imposed more than 10 years earlier. We remand the case for the court to determine the defendant’s ability to pay the parole revocation restitution fine, which is not vacated by section 1465.9(d).

First Holding:

Effective January 1, 2025, AB 1186 added subdivision (d) to section 1465.9, which provides that, 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. It does not, however, apply to the parole revocation restitution fine.

Authority:

PEN 1465.9(d)

Second Holding:

In Kopp, our Supreme Court clarified that, although fines may properly be imposed as punishment for crime, the excessive fines analysis under the state and federal Constitutions is the proper vehicle to challenge punitive fines, such as parole revocation fines. In addition, a trial court must conduct an ability to pay hearing before imposing a restitution fine (or corresponding parole revocation fine) that exceeds the statutory minimum of $300.

Authority:

People v. Kopp (2025) 19 Cal.5th 1 23, 17, 30