Tag Archives: Appealability

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).”)

Abstracts and Minutes, Amelioration, Appellate Principles

Case 000761

Posted on by Gary McCurdy

Error and/or relief

Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.

First Holding:

The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.

Authority:

People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]

People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]

Second Holding:

Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.

Authority:

PEN 1172.1

Third Holding:

If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.

Authority:

People v. Roy (2025) 110 Cal.App.5th 991, 998

People v. Hodge (2024) 107 Cal.App.5th 985, 996

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

Fourth Holding:

Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]

People v. Magana (2021) 63 Cal.App.5th 1120, 1125

People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]

Appellate Principles

Case 000565

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This is a case in which no relief was granted the defendant, because his matter did not give rise to an appealable order. It is included in these summaries because it contains important principles on appealability.]

First Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Second Holding:

Section 1237(b), authorizes criminal defendants to appeal from any order made after judgment, affecting the substantial rights of the party. The type of claim raised in the trial court determines whether a postjudgment order affects the substantial rights of a party. An appealable order must be validly issued, and a sentencing order cannot be valid if the trial court lacks jurisdiction to issue it. Therefore, a trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b).

Authority:

PEN 1237(b)

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

People v. King (2022) 77 Cal.App.5th 629, 639

Third Holding:

The court determined that neither provision cited by the defendant, as amended, conferred postconviction jurisdiction on the court to resentence the defendant, whose sentence was final in 2017. The trial court’s order, which dismissed the defendant’s motion because the court lacked jurisdiction to grant him relief under those provisions, therefore, did not affect the defendant’s substantial rights. It is, therefore, not appealable under section 1237(b). Because the order is not appealable, we must dismiss the appeal.

Authority:

People v. Fuimaono (2019) 32 Cal.App.5th 132, 135

People v. Faustinos (2025) 109 Cal.App.5th 687, 693-694

People v. King (2022) 77 Cal.App.5th 629, 634, 642

Appellate Principles, Sentencing

Case 000564

Posted on by Gary McCurdy

Error and/or relief

This is another case where no relief was granted, but it contains important information on how an otherwise nonappealable order might become appealable.

The defendant filed a motion for resentencing under section 1172.1. While a defendant may invite the court under that section to resentence him, he has no right to make a motion under that section. (It can be triggered by the custodial officials or the prosecutors or on the court’s own motion, however.)

Had the court simply declined to respond to the defendant’s “motion,” or simply denied it outright, the defendant would have no right to appeal. The court, however, considered the motion and denied it on its merits. This created a substantial right for the defendant and permitted appellate review. We conclude the trial court evaluated and denied defendant’s petition on the merits, thus affecting defendant’s substantial rights, and thus the denial is an appealable order.

First Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Second Holding:

Section 1172.1(a)(1), effective January 1, 2024, provides that the trial court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Section 1172.1(c) expressly states, however, that 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. Thus, a defendant who chooses to file an unauthorized request for resentencing has no right to a ruling.

Authority:

PEN 1172.1

People v. Roy (2025) 110 Cal.App.5th 991, 998,

Third Holding:

The second sentence in section 1172.1(c) means that a defendant does not have a substantial right at stake when they request recall and resentencing.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1045

People v. Roy (2025) 110 Cal.App.5th 991, 998-999

People v. Faustinos (2025) 109 Cal.App.5th 687, 696

Fourth Holding:

Where the trial court undertakes to make a resentencing decision on the merits after a defendant has filed a petition pursuant to section 1172.1, the defendant is entitled to an appeal. Here, the trial court effectively evaluated and denied defendant’s petition on the merits. After defendant filed his petition, the trial court set a status conference and a briefing schedule.

When the People asked the trial court whether it would consider recalling defendant’s sentence, the trial court directed the People to address the merits. Additionally, the trial court invited the victims to be heard at a hearing, it considered the parties’ arguments, and it considered whether resentencing defendant would be in the interest of justice. In short, the trial court evaluated and denied defendant’s petition on the merits, thus affecting his substantial rights.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1172-1173

People v. Olea (2025) 115 Cal.App.5th 889, 902

Fifth Holding:

Defendant claims the enactment of Evidence Code section 352.2 constitutes such a change in sentencing laws. However, he offers no authority or reasoned argument to support his claim. As a result, we may deem the claim forfeited.

Authority:

Cal. Rules of Court, rule 8.204(a)(1)(B)

People v. Stanley (1995) 10 Cal.4th 764, 793

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Jurisdiction, Sentencing

Case 000560

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This appeal was dismissed as from a nonappealable order, but it is summarized for providing numerous principles regarding appealability. It purported to be an appeal from a postconviction motion to strike restitution fines that were imposed more than 10 years earlier. The authority relied on by the appellant was section 1465.9, which states, “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.”

(The complication in this case is that the fines were imposed in 1989 under Government Code section 13967. The trial court pointed out that the section was repealed in 2003, and concluded that the change reflected in Penal Code section 1465.9 did not apply because no restitution fines were imposed under section 1202.04.)

First Holding:

Before we may consider the merits of the defendant’s appeal, we must first determine whether the trial court’s order denying his postjudgment motion to vacate his restitution fines is appealable. The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. An order made after judgment is appealable if it affects a defendant’s substantial rights.

A trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b). Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.

In this case, the defendant was sentenced in 1989 and began serving his sentence that same year. This court affirmed the judgment on appeal, and the remittitur issued by April 1991. Thus, absent an exception to the general common law rule, the trial court lacked jurisdiction in 2025 to grant the defendant’s petition and resentence him by vacating his restitution fines. 

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 254 [Because an appealable judgment or order is essential to appellate jurisdiction, the appellate court must consider the question of appealability sua sponte, and dismiss the appeal if the judgment or order is found to be nonappealable]

People v. Loper (2015) 60 Cal.4th 1155, 1159

People v. E.M. (2022) 85 Cal.App.5th 1075, 1085

People v. Roy (2025) 110 Cal.App.5th 991, 997

Second Holding:

Where a defendant whose conviction is final files a statutorily unauthorized freestanding petition, both the court below and this court lack jurisdiction to consider the arguments raised therein. In that circumstance, the appeal must be dismissed.
.

Authority:

People v. Garcia (2025) 114 Cal.App.5th 139, 144

Appellate Principles, Plea bargains, Sentencing, Sixth Amendment

Case: 000377

Posted on by Gary McCurdy

Error and/or relief

In exchange for the defendant’s plea, the People dismissed nine other counts and the parties stipulated to a sentence between the range of five and 13 years in prison. On appeal, the defendant contends the trial court prejudicially erred by imposing the upper term sentence of 13 years based on aggravating factors that he did not stipulate to and were not found true beyond a reasonable doubt at a trial. We agree and reverse the judgment and remand for resentencing. The defendant may stipulate to the factors in aggravation. If he chooses not to stipulate, he may demand a trial by jury or court, at which the prosecution must prove beyond a reasonable doubt the aggravating factors. Unless the defendant stipulates to the factors in aggravation, if the prosecution does not prove them at trial, the court must impose a sentence no greater than the middle term.

First Holding:

Although the failure to obtain a certificate of probable cause generally bars an appeal following a guilty plea, a certificate of probable cause is not required to raise on appeal a claim, such as the one the defendant presents here, regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 790–791

Second Holding:

A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. Thus, a waiver of appeal rights does not apply to possible future error, including sentencing error, that is outside the defendant’s contemplation and knowledge at the time the waiver is made.

Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. There is no dispute that when the defendant entered his plea he gave up his right to appeal any sentence stipulated in the plea agreement. Such a waiver may preclude an appellate challenge to the trial court’s imposition of a specific prison term that was stipulated in the plea agreement. What we must determine here, however, is whether the scope of such a waiver also includes a challenge to a trial court’s choice of a sentencing term from a stipulated range.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 940–941

People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662

People v. Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86

Third Holding:

Buttram is instructive on the issue of waiver of the right to appeal. In considering this issue, the court distinguished Buttram’s case from cases involving plea agreements stipulating to a specified sentence, and found persuasive the argument that a negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings, in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain.

The court further reasoned that, when the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. Finally, in determining Buttram’s appeal challenging the imposition of the maximum sentence was not precluded by his guilty plea, the court reasoned that an agreement for something other than a specified sentencing term, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 782, 785, 790–791

Fourth Holding:

Here, the defendant stipulated to a sentencing range that set both the minimum and the maximum sentence but did not specify the exact sentence to be imposed. Nothing in the plea agreement dictates the terms by which the trial court would determine what sentence to impose from within the stipulated range. And nothing in the plea agreement stipulates that the trial court, in making its sentencing decision, would not be bound by section 1170(b), or the Sixth Amendment to the United States Constitution, which limit the ability of a trial court to impose an upper term sentence absent sufficient proof of aggravating factors.

Authority:

PEN 1170(b)(1) and (2)

Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence]

Fifth Holding:

Section 1170(b) generally provides that a sentence may not exceed the middle term, except when it finds aggravating circumstances justify a higher sentence. Both section 1170(b) and the Sixth Amendment require that these aggravating factors be stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. A court does not have discretion to impose an upper term sentence unless all the aggravating factors on which it relies have been sufficiently proven.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 759 [An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial]

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth Holding:

The Courts of Appeal have split on the issue of whether a defendant, who stipulated to an upper term sentence pursuant to a plea agreement, is entitled to remand for consideration of the aggravating factors under section 1170, subdivision (b)(2), and the Supreme Court has granted review on this issue.

Gary LONG note: In this Sixth Holding, the appellate court is alluding to People v. Stamps (2020) 9 Cal.5th 685, although it does not actually mention Stamps. Stamps holds that if a defendant insists on taking advantage of ameliorative provisions in a case where the plea bargain specified the sentence, and the trial court changes the sentence based on those ameliorative provisions, either the prosecution or the court may set aside the original plea bargain entirely if not satisfied with the new sentence. But given a new statute, I wonder whether Stamps is still good law. (That is a “wonder if,” not a “statement of law.”) Effective 1/1/2025, section 1171 was enacted to give courts guidance on how to handle various amerliorative statutes.

Take a look at the excerpt from 1171(c)(3):

Penal Code section 1171(a): For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.

…

(c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.

…

(e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.

…

(f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.

On 5/18/2026, Mitchell (shown in this list of authorities relied on in the case) was decided by the Supreme Court. People v. Mitchell (2026) 19 Cal.5th 729. The Supreme Court did not rely on section 1171, but instead remanded for the procedure it outlined in Stamps–if the defendant gets what he wants, and the DA or the court is not happy with the modification, then the plea must be set aside. In its footnote 9, however, it stated,

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 … sets forth procedures governing a ‘postconviction proceeding,’ which the statute defines as ‘a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.’ … At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

I suspect the Supreme Court wanted to see how the lower courts are treating section 1171 before it chooses to weigh in. While I do not know if that IS what the Supreme Court had in mind, I think there is value in that approach from the perspective of establishing the law. When major issues are briefed by multiple attorneys in several different cases, and Courts of Appeal arrive at their decisions through their own means of arriving at a legal conclusion, it gives the broadest perspective for the Supreme Court to decide what makes the most sense. I repeat, that’s just my opinion.

I also want to point out that In People v. Montgomery (no longer a published opinion, but it was originally published at 100 Cal.App.5th 768 before the Supreme Court granted review and ultimately ordered the opinion to be depublished), the Supreme Court had before it a question on whether Stamps applied. The Court of Appeal had concluded that relief under section 1172.75 would not permit the DA or trial court from vacating the plea agreement (i.e., a NON-Stamps approach). In December 2024, just before section 1171 was to go in effect on January 1, 2025, the Supreme Court transferred the case back to the Court of Appeal in light of section 1171. Subsequently, the Court of Appeal issued an unpublished opinion in which it essentially affirmed its previous result–modification under section 1172.75 would not result in the plea being set aside in light of section 1171.

And if I may quote from Paul Harvey, “And now you know … the rest of the story.”

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same]

People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same]

People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023, S278503 [same]

Appellate Principles, Jurisdiction

Case: 000229

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order. The clerk of the superior court is to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives said request on or before 60 days of the date of this order.

Authority:

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

Second Holding:

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

Duty of the court, Probation Parole PRCS, Sentencing

Case: 000203

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his expungement request under Penal Code section 1203.4 and in failing to consider his request to reduce the offense to a misdemeanor under Penal Code section 17(b). Because the court did not address his request under section 17(b), on remand it must do so.

First Holding:

An order denying relief under section 1203.4 is appealable.

Authority:

People v. Chavez (2016) 5 Cal.App.5th 110, 114

Second Holding:

Section 1203.4 provides in pertinent part that a defendant who has fulfilled the conditions of probation for the entire period of probation is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. If the petitioner meets the criteria for relief under section 1203.4, the trial court is required to grant the requested relief.

Authority:

PEN 1203.4

People v. Hawley (1991) 228 Cal.App.3d 247, 249-250

People v. Guillen (2013) 218 Cal.App.4th 975, 991

People v. Lewis (2006) 146 Cal.App.4th 294, 297-298

Third Holding:

As of 2023, section 1203.4 provides that a petition for relief under this section shall not be denied due to an unfulfilled order of restitution, and an unfulfilled order of restitution shall not be grounds for finding that a defendant did not fulfill the condition of probation for the entire period of probation.

Authority:

PEN 1203.4(c)(3)(A) & (B)

Fourth Holding:

When a crime is punishable as either a felony or a misdemeanor it is commonly referred to as a “wobbler,” and the trial court may reduce the offense to a misdemeanor at the time of granting probation, or on application of the defendant or probation officer thereafter. The court has broad discretion in deciding whether to reduce a wobbler to a misdemeanor. In exercising its discretion, the court considers several factors, including “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.

Authority:

PEN 17(b)(3)

People v. Tran (2015) 242 Cal.App.4th 877,

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,

People v. Park (2013) 56 Cal.4th 782, 790-791

Fifth Holding:

Grand theft by embezzlement of property valued at more than $950, the offense for which the defendant was convicted, is a wobbler. The trial court should have addressed the defendant’s request to reduce his felony conviction to a misdemeanor.

Authority:

People v. Selivanov (2016) 5 Cal.App.5th 726, 75

Appellate Principles, Plea bargains, Sentencing

Case: 000142

Posted on by Gary McCurdy

Error and/or relief

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.

First Holding:

The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

Second Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, 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 shall 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 the 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. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

Authority:

PEN 1192.5

Third Holding:

A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

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

Fourth Holding:

A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, 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, 1219, 1222-1224

Fifth Holding:

Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024-1025

People v. Cruz (2013) 219 Cal.App.4th 61, 65

Sixth Holding:

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. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.

Authority:

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

Appellate Principles, Jurisdiction

Case 000085

Posted on by Gary McCurdy

Error and/or relief

This habeas petition seeks a belated appeal from a judgment rendered in the superior court. Petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine.

First Holding:

In response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief. Pursuant to the Attorney General’s response, this court may grant relief without further proceedings.

Authority:

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

Second Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

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

Third Holding:

(Gary note: The “Benoit” process is fairly routine, and the opinion does not discuss it. Except for roughly a 10-year period from 1961-1971 (when the Rules of Court set up a process for a petition for relief from default), there is no such thing in criminal law as a valid “late notice of appeal.” If the notice of appeal is not filed by the deadline, the court has no jurisdiction to proceed with the appeal.

(In Benoit, however, the Supreme Court recognized the difficulties of getting documents filed when the defendant is in custody. It confirmed or adopted the concept that if (a) the defendant is in custody the entire period of time for the filing of a notice of appeal, and (b) during the filing period the defendant takes steps to timely file the notice of appeal or to get someone to file it on his behalf (such as his or her attorney), the court will deem the notice of appeal constructively timely filed. Once it’s deemed to have been filed (albeit constructively) within the filing period, then it is not late, right?

(But both conditions are critical: the defendant must have been in custody the entire period AND the defendant must have taken reasonable efforts before the expiration of the deadline for filing.

(There is also the “prison delivery” rule, which treats the notice of appeal has having been filed timely if–prior to the expiration of the filing period–the inmate delivers the notice of appeal to the custodial official. I have listed the additional authorities below, though they were not part of the unpublished opinion. If you are faced with a similar problem, I suggest you read Benoit, Jordan, and Silverbrand, because they go into depth on the history and development of constructive filing and the prison delivery rule.)

Authority:

In re Benoit (1973) 10 Cal.3d 72 [incarcerated defendant timely requests the attorney to file the notice of appeal but the attorney does not]

In re Jordan (1992) 4 Cal.4th 116 [articulately the “prison delivery rule,” something that Benoit also discussed]

Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [extending the prison delivery rule to incarcerated defendants needing to appeal in civil cases]

Houston v. Lack (1988) 487 U.S. 266, 271 [holding that a self-represented prisoner’s appeal from the denial of a petition for writ of habeas corpus—a civil proceeding—was timely filed when delivered by the petitioner to prison authorities within the applicable 30-day period]

Rules of Court, rule 8.25(b)(5) [If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.]

Fourth Holding:

[GARY NOTE: In felony cases, the notice must be filed within 60 days.]

Authority:

Rules of Court, rule 8.308

Fifth Holding:

[GARY NOTE: In misdemeanor appeals, the notice must be filed within 30 days.]

Authority:

Rules of Court, rule 8.393

Sixth Holding:

[GARY NOTE: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. I’ve listed authority below.]

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.]