Tag Archives: Appealability

Appellate Principles, Jurisdiction

Case 001149

Posted on by Gary McCurdy

Error and/or relief:

This was a writ of habeas corpus to permit the defendant to rely on the In re Benoit principle of constructive timely filing of a notice of appeal. The petition was granted, and the defendant was allowed to proceed with his appeal.

First Holding:

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. The People have voiced no opposition. Granted.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding (Gary Musings):

GARY Musings: the second, third, fourth, fifth, and sixth holdings and their authorities are provided by me and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal.

What I have set forth in this summary is virtually a direct copy-and-paste from my summary in case 000229. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.

Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely. The Attorney General’s concession on behalf of the People is deemed to constitute an agreement that the requested relief ought to be granted without further proceedings

Authority:

In re Benoit (1973) 10 Cal.3d 72, 81–82

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Third Holding:

In felony cases, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

Authority:

Rules of Court, rule 8.308

Fourth Holding:

In misdemeanor cases, the notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Authority:

Rules of Court, rule 8.393

Fifth Holding:

As used in rule 8.304(a)(1) regarding the filing of a notice of appeal in the superior court in a felony case, “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b).

Authority:

Rules of Court, rule 8.304(a)(2)

Sixth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal.

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Appellate Principles, Duty of the court, Plea bargains, Sentencing, Standard of review

Case 001099

Posted on by Gary McCurdy

Error and/or relief:

The court tentatively accepted the plea bargain and took the defendant’s plea, which place a limit on the sentence that could be imposed. Afterward, the client sought release from custody pending sentencing. The court agreed provided the defendant enter a “Cruz waiver,” under which the penalty for failure to appear at sentencing would be the removal of the limit on sentence contemplated by the plea agreement.

On sentencing following the defendant failure to appear and subsequent apprehension for sentencing, the court declined to follow the plea agreement and imposed a greater term, relying on the defendant’s post-plea Cruz waiver. This was error, and the matter is remanded to the trial court to give the defendant the opportunity to withdraw his plea.

First Holding:

Cruz provides a narrow exception where a trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term, in cases where a defendant willfully fails to appear for sentencing after having been advised of his rights under section 1192.5 and choosing to expressly waive them.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Second Holding:

When a guilty plea is tendered under section 1192.5, is accepted by the prosecuting attorney, and is approved by the court, the defendant cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

If the court approves of the plea, it must inform the defendant–prior to the making of the plea–that:

(1) its approval is not binding;

(2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in light of further consideration of the matter; and

(3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so.

Authority:

PEN 1192.5

Third Holding:

Appellate courts have recognized that, when there is a plea agreement between parties, and the plea is accepted by the court, that due process requires that both the defendant and the prosecution, abide by the terms of the plea agreement and that the punishment imposed not significantly exceed that which the parties agreed upon.

If the trial court disapproves of the negotiated disposition and seeks to modify it, the court must expressly tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept the modified terms.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 587–588, overruled on different grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183

People v. Woods (2017) 12 Cal.App.5th 623, 630 [the accused and the People are entitled to the benefit of the plea bargain]

People v. Mancheno (1982) 32 Cal.3d 855, 860 [due process applies not only to the procedure of accepting the plea, but also to the implementation of the bargain itself; a violation of the bargain raises a constitutional right to some remedy]

Fourth Holding:

A defendant who fails to appear without justification is subject to punishment upon conviction of the separate offense of a willful failure to appear in an action brought at the discretion of the prosecutor, not by peremptory judicial fiat. A defendant who fails to appear for sentencing does not lose the protections of section 1192.5.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1253

People v. Masloski (2001) 25 Cal.4th 1212, 1219

Fifth Holding:

A plea agreement may provide for an alternate, increased sentence if the defendant fails to appear for sentencing. However, to do so, a waiver of the defendant’s section 1192.5 rights must be obtained at the time of the court’s initial acceptance of the plea and must have occurred after an advisement under section 1192.5. If a court should fail to inform a defendant of his right to withdraw his guilty plea, even the defendant’s acceptance of the trial court’s terms will not be enough to make them a part of the plea bargain under section 1192.5.

In cases where a defendant has not been fully advised of his rights under section 1192.5 and has not expressly waived those rights, a trial court may still impose a longer term for failure to appear, so long as it does not seek to repudiate the plea bargain or to impose a sentence more onerous than that which defendant had agreed to accept as part of the bargain itself.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1250-1252

People v. Masloski (2001) 25 Cal.4th 1212, 1219

Sixth Holding:

In reviewing a challenge involving a plea bargain, we apply the standards of review applicable to contracts, generally. The interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.

Authority:

People v. Woods (2017) 12 Cal.App.5th 623, 631

Seventh Holding:

The process of plea bargaining–which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions–contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and the prosecution. Because the charging function is entrusted to the executive, the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of plea bargaining to agree to a disposition of the case over prosecutorial objection.

Authority:

People v. Clancey (2013) 56 Cal.4th 562, 569–570

Eighth Holding:

When a plea bargain is made the defendant is entitled to withdraw his plea if the negotiated bargain is incapable of actual fulfillment. Under the provisions of the authorizing statute, once the plea specifying the punishment is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.

Authority:

PEN 1102.5

People v. Morris (1979) 97 Cal.App.3d 358, 362

Ninth Holding:

The question when distinguishing between bargained-for provisions and judicially imposed terms will be not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give-and-take of plea bargaining or was a judicially imposed afterthought. A trial court must accept the negotiated plea or reject the bargain outright, but it cannot come up with its own number” with regard to sentencing.

Authority:

People v. Casillas (1997) 60 Cal.App.4th 445, 452

People v. Stamps (2020) 9 Cal.5th 685, 708

Tenth Holding:

The trial court erred in imposing a sentence greater than the sentence agreed upon in the plea bargain without first advising defendant of his section 1192.5 rights or affording him the opportunity to withdraw his plea. Here, whether the proffered plea was acceptable was within the exclusive discretion of the court.

However, the discretion to conditionally approve the negotiated plea bargain did not sanction the wholly unrelated and unbargained condition interjected by the court concerning an increased sentence of six years (the upper term, doubled) for defendant’s failure to appear at sentencing, as the increased sentence was imposed after the plea was accepted as a precondition to the court’s acceptance of the Cruz Waiver, without input from the prosecution, who objected to the waiver. The provision was therefore not a part of the plea agreement, not a valid Cruz waiver, and not enforceable. The Cruz waiver must be obtained at the time of the court’s initial acceptance of the plea and must have occurred after an advisement under section 1192.5.

Authority:

PEN 1192.5

People v. Orin (1975) 13 Cal.3d 937, 942–943

People v. Smith (1971) 22 Cal.App.3d 25, 30

People v. Masloski (2001) 25 Cal.4th 1212, 1217-1219

Eleventh Holding:

When a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain.

The same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance. And that is the situation in this case.

It is only when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance that the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1221-1222

People v. Morris (1979) 97 Cal.App.3d 358, 360-361

People v. Murray (1995) 32 Cal.App.4th 1539, 1540-1546

Twelfth Holding:

We reverse the judgment and remand the matter to allow defendant the opportunity to withdraw his plea. A defendant should not be entitled to enforce an agreement between himself and the prosecutor calling for a particular disposition against the trial court absent very special circumstances. The preferred remedy in that context is to permit a defendant to withdraw his plea and to restore the proceedings to the original status quo.

Authority:

People v. Calloway (1981) 29 Cal.3d 666, 671

Thirteenth Holding:

A certificate of probable cause is not required for the defendant to raise this on appeal following his guilty plea, because this is a postplea claim involving sentencing issues that do not challenge the validity of the plea. Indeed, he seeks to enforce his plea. A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea.

Authority:

People v. Cuevas (2008) 44 Cal.4th 374, 379

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Racial Justice Act, Sentencing

Case 000913

Posted on by Gary McCurdy

Error and/or relief

Because the defendant failed to obtain a certificate of probable cause, we conclude that his claim under the Racial Justice Act (RJA) is not cognizable on appeal.

We agree, however, that the abstract of judgment requires correction. So we will direct the clerk of the superior court to correct the abstract of judgment and affirm.

First Holding:

The Legislature enacted the RJA in 2020, effective January 1, 2021—more than a year before the preliminary hearing in this case. Under the RJA, the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.

The defendant argues that expert testimony at the preliminary hearing exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin. Alternatively, if his RJA claim is forfeited due to counsel’s failure to object below, he argues that counsel rendered ineffective assistance. Although an RJA claim may be raised on direct appeal, the gravamen of the defendant’s RJA claim is that he should be relieved of his otherwise knowing, intelligent, and voluntary plea agreement as it was obtained in violation of the RJA.

Because his claim thus goes to the validity of his plea, it is not cognizable on appeal absent a certificate of probable cause.

When the judgment appealed from was obtained by the defendant’s plea of guilty or no contest, the sole exceptions to the requirement of a certificate are for appeals solely on noncertificate grounds postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.

Authority:

PEN 745

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)

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

Second Holding:

Section 1237.5’s requirement of a certificate of probable cause should be applied in a strict manner, as it lays down a condition precedent to the taking of an appeal within its scope. Its assumption is that, as a general matter, a judgment of conviction entered on a defendant’s plea of guilty or nolo contendere does not present any issue warranting relief on appeal, and hence should not be reviewed thereon.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098

Third Holding:

The defendant’s claim of ineffective assistance arises from counsel’s performance before entry of the plea, and courts have consistently held that claims of ineffective assistance deriving from counsel’s preplea acts require a certificate.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1092 [deeming counsel’s failure to request a hearing on competency a certificate issue]

People v. Moore (2024) 104 Cal.App.5th 90, 94 [claim that counsel was ineffective for failing to request pretrial mental health diversion requires certificate of probable cause]

People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245 [challenge that counsel’s preplea performance was deficient requires a certificate of probable cause]

Fourth Holding:

Nor can we find any suggestion that the Legislature intended to exempt RJA claims from the requirements of section 1237.5.

Had the Legislature intended for RJA claims to be decided on their merits whenever raised, it would not have required RJA motions to be made as soon as practicable and would have exempted such motions from the traditional rules of appellate forfeiture.

Requiring a defendant to obtain a certificate of probable cause to challenge grounds going to the legality of the proceedings after a plea is neither novel nor new, and the Legislature is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1076

People v. Frahs (2020) 9 Cal.5th 618, 634

Fifth Holding:

The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.

Thus, a trial court must issue the certificate if the defendant’s statement under section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious. If a court refuses to issue a certificate of probable cause, the defendant may seek a writ of mandate from the appellate court.

This low bar for issuance of a certificate would not hinder defendants from validly challenging their convictions based on alleged RJA violations.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 75

People v. Johnson (2009) 47 Cal.4th 668, 676

Sixth Holding:

Because the defendant did not obtain a certificate of probable cause, our review of his claims is thus limited to those issues that do not require a certificate.

Authority:

Cal. Rules of Court, rule 8.304(b)(3)

Seventh Holding:

The abstract of judgment contains a clerical error. Although the defendant admitted a firearm enhancement under section 12022.53(c), the trial court ultimately elected to impose a lesser enhancement under section 12022.53(d), as permitted in Tirado. The abstract of judgment, however, erroneously lists a section 12022.53(c) enhancement. We therefore direct the clerk of the superior court to correct the abstract of judgment.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000911

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.

(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)

First Holding:

Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.

In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Authority:

PEN 1172.1

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

Second Holding:

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.

Authority:

PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]

Third Holding:

Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.

Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]

Fourth Holding:

The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]

Fifth Holding:

(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)

Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.

Authority:

People v. Espino (2026) 20 Cal.5th 57

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

Appellate Principles, Racial Justice Act, Standard of review

Case 000770

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a motion in the trial court for postjudgment discovery pursuant to Penal Code section 1054.9, in advance of filing a petition for writ of habeas corpus. The defendant alleged he was arrested, charged, and convicted as a result of racial bias by the police department and the district attorney, and that his defense counsel was prejudicially ineffective. He appealed from the court’s denial of a portion of his motion. It was not an appealable order. We treat this as a petition for writ of mandate.

(Gary note: The court denied the petition, but I have included the “gold”–its principles–for educational reasons. Which is really the point of this entire blog, of course.)

First Holding:

A party must seek review of the trial court’s denial of a section 1054.9 motion for postconviction discovery by filing a petition for writ of mandate rather than an appeal.

Authority:

In re Steele (2004) 32 Cal.4th 682, 688

People v. Serrano (2024) 106 Cal.App.5th 276, 292

Second Holding:

Given the procedural background of this case, rather than dismiss the appeal, we exercise our discretion to treat it as a petition for writ of mandate in the interests of judicial economy.

Authority:

People v. Payne (1988) 202 Cal.App.3d 933, 937

People v. Picklesimer (2010) 48 Cal.4th 330, 335

Third Holding:

A motion for postjudgment discovery filed pursuant to section 1054.9 may be made in anticipation of filing a petition for writ of habeas corpus but before the petition is actually filed. However, the statute provides only limited discovery. It does not allow free-floating discovery asking for virtually anything the prosecution possesses.

Authority:

In re Steele (2004) 32 Cal.4th 682, 691

Barnett v. Superior Court (2010) 50 Cal.4th 890, 894

Fourth Holding:

The trial court’s ruling on a motion under section 1054.9 is reviewed for an abuse of discretion.

Authority:

Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366

Gary Note:

(Gary note: I wrote a Gary Musings on the code section at issue here, focusing on the statutory duty it imposes on counsel to retain a copy of [insert appropriate adjective, depending on how YOU read the subdivision, but for lack of a better term at the moment, “certain” will do] clients’ files in a digital format in color. It went up on the blog on June 21, 2026, under the category “Gary Musings.” The article’s title is “To Save, Or Not To Save (the client’s file).”)