Tag Archives: Appellate process

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, 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. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. 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)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

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

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

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

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

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

In re Estrada (1965) 63 Cal.2d 740

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Appellate Principles

Case: 000124

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 do not oppose the request. Granted. [GARY NOTE: the 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.]

First Holding:

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.

Authority:

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

Second Holding:

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:

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:

AD

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, Jury trial

Case: 000118

Posted on by Gary McCurdy

Error and/or relief

The judgment must be reversed because the trial court deprived the defendant of his statutory rights under Code of Civil Procedure section 231.7 when it failed to sustain defense counsel’s objections to the prosecutor’s use of peremptory challenges to two prospective jurors. We reverse the judgment and remand the matter for a new trial.

First Holding:

At its core, Code of Civil Procedure section 231.7 precludes either party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s 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.

Once the objection is made, the trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. It must consider only the reasons actually given and not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained.

The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record.

Authority:

CCP 231.7(d)(1)

Second Holding:

The statute acknowledges that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of California. It defines ‘unconscious bias’ to include both implicit and institutional biases.

Authority:

CCP 231.7(d)(2)(C)

Third Holding:

A peremptory challenge for any of certain enumerated reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(e)

Fourth Holding:

The term “clear and convincing” refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(f)

Fifth Holding:

Section 231.7(g) provides a list of reasons for peremptory challenges that have historically been associated with improper discrimination.

Authority:

CCP 231.7(g)(1)(A) and (B)

Sixth Holding:

he denial of an objection made under section 231.7 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 subdivision (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)

Seventh Holding:

[GARY NOTE: The opinion examined the details of the voir dire and procedures followed, and cited several published opinions as examples of resolutions of the problem. Rather than write a full tome, I have chosen simply to list the published cases, which you may want to read if you have a similar issue in your case(s).]

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 892 [the role of the two-step procedure set forth in section 231.7, subdivision (g)(2) is to determine whether the presumption of invalidity has been rebutted]

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243 [discussing racial disparities in charging decisions]

People v. Aranda (2012) 55 Cal.4th 342, 364 [the high court has identified as structural error constitutional violations such as racial discrimination in jury selection]

People v. Cahill (1993) 5 Cal.4th 478 [certain structural errors require reversal notwithstanding the strength of evidence in a particular case]

Eighth Holding:

[GARY NOTE: Amicus curiae filed a brief that, in essence, challenged the legality of section 231.7, an issue not raised by either party in the appeal.] The second issue regarding the Legislature’s ability to require reversal was not raised by either party, either before the trial court or in this appeal. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered.

Authority:

People v. Hannon (2016) 5 Cal.App.5th 94, 105

Appellate Principles

Case: 000110

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This appeal was dismissed as moot, and there was no “victory,” even in my very broad definition. But it contains a decent discussion on mootness that might provide some insight into the appellate process.] The defendant complains of terms set on his mandatory supervision. But he has completed his term of mandatory supervision. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide the defendant with any relief, his appeal challenging the term of mandatory supervision is moot. We will therefore dismiss it.

First Holding:

A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. Consequently, when, pending an appeal from the judgment of a lower court, and without any fault of the opposing party, an event occurs which renders it impossible for the court, if it should decide the case in favor of the defendant, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal as moot.

Authority:

People v. Rish (2008) 163 Cal.App.4th 1370, 1380

People v. DeLeon (2017) 3 Cal.5th 640, 645

Second Holding:

Where a defendant has completed a sentence, their claims of error as to that sentence are moot because a reviewing court’s resolution of the issues could offer no relief regarding the time he spent on mandatory supervision or in custody. A defendant must demonstrate sufficiently concrete consequences to avoid a finding of mootness. Speculative consequences do not support the conclusion that a legally sufficient controversy exists. Complaining of stigma alone is insufficient to sustain an appeal. The stigma must be paired with some effect on the legal status that is capable of being redressed by a favorable court decision. The moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.

Authority:

People v. DeLeon (2017) 3 Cal.5th 640, 645, 646, fn. 2

In re D.P. (2023) 14 Cal.5th 266, 277

People v. Armas (2024) 107 Cal.App.5th 350, 357

Third Holding:

The defendant urges us to consider the merits of his appeal despite its mootness, because the issue raised is likely to recur, might otherwise evade appellate review given the “relatively fleeting nature of mandatory supervision,” and is of continuing public interest, within the meaning of Morales. We decline to do so. Many published California cases have shown varying terms of supervision, many of which cannot be characterized as fleeting. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide appellant with any relief, his appeal challenging the term of mandatory supervision is moot.

Authority:

People v. Morales (2016) 63 Cal.4th 399, 409

People v. Nixon (2025) 111 Cal.App.5th 947, 950 [five years of mandatory supervision]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 [three years of mandatory supervision]

People v. Martinez (2020) 54 Cal.App.5th 885, 890 [two years eight months of mandatory supervision]

People v. Conatser (2020) 53 Cal.App.5th 1223, 1225 [six years of mandatory supervision]

People v. Mendoza (2020) 44 Cal.App.5th 1044, 1050 [four years of mandatory supervision]

People v. Samuels (2018) 21 Cal.App.5th 962, 965 [five years of mandatory supervision]

People v. Millan (2018) 20 Cal.App.5th 450, 452 [five years of mandatory supervision]

People v. Bollaert (2016) 248 Cal.App.4th 699, 704 [10 years of mandatory supervision]

Appellate Principles, Sentencing

Case: 000103

Posted on by Gary McCurdy

Error and/or relief

We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654. Accordingly, we modify the judgment to stay the sentence on the second of those two counts.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct.

Authority:

PEN 654

People v. Harrison (1989) 48 Cal.3d 321, 335

Second Holding:

Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Third Holding:

The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Fourth Holding:

An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances.

Authority:

PEN 1260

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Appellate Principles, Elements of crime, Jury trial, Sufficiency of and substantial evidence

Case: 000094

Posted on by Gary McCurdy

Error and/or relief

We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, and we reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace.   We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

First Holding:

Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

PEN 209(b)(1)–(2)

People v. Rayford (1994) 9 Cal.4th 1, 11–12

People v. Waqa (2023) 92 Cal.App.5th 565, 577

People v. Nguyen (2000) 22 Cal.4th 872, 886

Second Holding:

In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.

Authority:

People v. Williams (2017) 7 Cal.App.5th 644, 671

Third Holding:

Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 470

Fourth Holding:

If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.

Authority:

People v. Daniels (1969) 71 Cal.2d 1119, 1140

People v. Power (2008) 159 Cal.App.4th 126, 139

People v. Leavel (2012) 203 Cal.App.4th 823, 834

People v. Dominguez (2006) 39 Cal.4th 1141, 1152

People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]

Fifth Holding:

In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.

Authority:

People v. Hartland (2020) 54 Cal.App.5th 71, 77

Sixth Holding:

Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

PEN 1181, subd. 6

PEN 1260

People v. Bailey (2012) 54 Cal.4th 740, 748

People v. Ellis (2025) 108 Cal.App.5th 590, 601

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 671

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case: 000092

Posted on by Gary McCurdy

Error and/or relief

The clerk of the superior court is directed to correct the abstract of judgment to reflect that the court did not impose any prior-prison-term enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed to forward copies of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

First Holding:

As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.

Authority:

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

Second Holding:

Effective January 1, 2020, SB 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, sec. 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (sec. 667.5(b)).

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

Third Holding:

Effective January 1, 2022, SB 483 made the change retroactive to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

Fourth Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken.

Authority:

PEN 1172.75

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

Fifth Holding:

An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground.

Authority:

People v. Battle (2021) 11 Cal.5th 749, 800

Sixth Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

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

Seventh Holding:

The abstract may be corrected at any time when it does not reflect the oral pronouncements.

Authority:

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

 

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.]

Appellate Principles, Jurisdiction, Sentencing

Case 000077

Posted on by Gary McCurdy

Error and/or relief

[Gary note: this is an unusual case because the defendant was allowed to appeal from a denial of his request to be resentenced under section 1172.1, a statute that specifically states “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.” But there was an unusual scenario in the trial court that turned it into an appealable order.]

The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1. For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance. However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:

The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request), affected the defendant’s substantial rights, and in this instance, the order is appealable.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375 [noting that even if a defendant does not have the right to petition for relief, he does have the right to invite the court to exercise its power to do so and may raise a trial court’s failure to do so on appeal]

Second 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

Third Holding:

Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1.

Authority:

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

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

People v. Raoy (2025) 110 Cal.App.5th 991

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

Fourth Holding:

While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and the court is not required to respond to such an invitation or to consider the request at all.

Authority:

PEN 1172.1(c)

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

Fifth Holding:

An appellate court has an independent obligation to assure itself of its own jurisdiction.

Authority:

Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

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

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

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

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Abstracts and Minutes, Appellate Principles

Case 000067

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment requires correction to show that the enhancement was stricken and the determinate sentences were stayed under Penal Code section 654.

First Holding:

Where there is a discrepancy between the oral pronouncement of sentence and the minute order or abstract of judgment, the oral pronouncement controls.

Authority:

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

Second Holding:

A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. Here, however, we have rejected all but one of her claims of error. As a result, there are not multiple errors to accumulate.

Authority:

People v. Hill (1998) 17 Cal.4th 800, 844

People v. Weaver (2012) 53 Cal.4th 1056, 1077

Appellate Principles, Jurisdiction, Sentencing

Case 000041

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing conducted after the remittitur issued, the trial court declined to strike or reduce the Penal Code section 12022.53(d) firearm enhancement and reimposed the sentence of 50 years to life. The parties agree that the trial court lacked jurisdiction to conduct the earlier hearing (while the appeal was up in higher court, the trial court permitted the prosecution to file new circumstance in aggravation) and the matter must be remanded for a new resentencing hearing. Accordingly, we reverse and remand for a new sentencing hearing conducted in accordance with Senate Bill 567.

First Holding:

It is well established that the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

This jurisdictional rule serves to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided, and prevents the trial court from rendering an appeal futile by altering the appealed judgment by conducting other proceedings that may affect it.

Authority:

People v. Awad (2015) 238 Cal.App.4th 215, 224

Third Holding:

During the premature hearing, the trial court permitted the prosecution to amend the information to add a factor in aggravation pursuant to California Rules of Court, rule 4.421(b)(1), and accepted defendant’s waiver of his right to trial and admission to the new allegation. Because the trial court lacked jurisdiction to conduct this hearing, all proceedings conducted during that hearing—including the amendment of the information and defendant’s subsequent admission—are null and void.

Authority:

People v. Williams (1999) 77 Cal.App.4th 436, 446-447