Tag Archives: Appellate process

Appellate Principles, Jury trial

Case 001134

Posted on by Gary McCurdy

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Amelioration, Elements of crime, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001124

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the petition for recall of sentence under section 1172.6 and direct the trial court to consider the defendant’s youth at the time of the killing as a relevant factor in determining whether the defendant formed the requisite mental state to be convicted of aiding and abetting an implied malice murder.

First Holding:

The trial court found that the defendant directly aided and abetted an implied malice murder. To satisfy the actus reus for that theory of liability, the aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The relevant act is the act that proximately causes death.

The required mens rea is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Second Holding:

Based on our review of the trial court’s written order denying resentencing, we conclude the trial court understood and applied the elements of directly aiding and abetting an implied malice murder. We therefore review its decision for substantial evidence.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We do not reweigh evidence or second-guess credibility determinations. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a conviction based on insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

The defendant asserts that the trial court failed to consider his youth when deciding the resentencing petition. He did not raise the issue in the trial court, arguably forfeiting the issue. But we agree that considering the issue on the merits is appropriate where this emerging area of the law was only developing at the time the trial court denied the petition.

In Pittman, for example, the defendant argued for the first time on appeal after the denial of resentencing that his youth (21 years old at the time of the offense) was relevant to whether he acted with implied malice and therefore could be found guilty of second degree murder. The appellate court observed that the policy interests underlying the felony-murder cases—that youth is relevant to a criminal defendant’s ability to perceive risk and consequences, and therefore to the level of culpability—apply equally in the context of implied malice murder.

The Pittman court further concluded that failure to consider Pittman’s youth was not harmless, given trial evidence of Pittman and his peers acting impulsively and under the influence of transient rashness.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 416, 418 [Cases discussing the role of youth in relation to criminal culpability stress two areas: youthful offenders’ relative impulsivity and their vulnerability to peer pressure]

Fourth Holding:

The defendant was 20 years old at the time of the crime. Impulsivity and vulnerability to peer pressure may have contributed to his participation in the unplanned group attack of a rival gang member. We find it is reasonably probable a more favorable result would have been reached on the defendant’s petition had the trial court considered his youth.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417 (applying the Watson standard)

People v. Watson (1956) 46 Cal.2d 818

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001111

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.

First Holding:

Under California’s determinate sentencing law as it currently stands, excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term and a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757

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

Second Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Scott (2015) 61 Cal.4th 363, 406

Third Holding:

Strong policy reasons support this forfeiture rule. It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2016) 63 Cal.4th 214, 239–240

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.

Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7

People v. Salazar (2023) 15 Cal.5th 416, 431–432

People v. Stamps (2020) 9 Cal.5th 685, 698–699

People v. Perez (2020) 9 Cal.5th 1, 7–8

People v. Brooks (2017) 3 Cal.5th 1, 92

People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]

Fifth Holding:

The restitution fine imposed in 2002 must be vacated under section 1465.9(d), which provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626–627

Sixth Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

We remand for the court to determine the appropriate credit for time served.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]

(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.

(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)

People v. Sek (2022) 74 Cal.App.5th 657, 673

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Standard of review

Case 001108

Posted on by Gary McCurdy

Error and/or relief

The record is ambiguous whether the trial court misunderstood its discretion to dismiss or strike an enhancement pursuant to Penal Code section 1385. Accordingly, we vacate the sentence and remand for resentencing.

First Holding:

Section 1385 governs a trial court’s discretion to dismiss various elements of an action or sentence. Under section 1385(a), the trial court may in furtherance of justice, order an action to be dismissed. This authority includes the power to dismiss or strike a sentencing enhancement.

Section 1385(b)(1) states that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice. In other words, striking an enhancement is different from striking the punishment for the enhancement.

Authority:

PEN 1385

People v. Thomas (1992) 4 Cal.4th 206, 209

People v. Tang (2025) 109 Cal.App.5th 1003, 1010

Second Holding:

Prior to 2022, section 1385 did not provide direction as to how courts should exercise that discretion” to dismiss or strike enhancements. Effective January 1, 2022, SB 81 amended section 1385 to specify mitigating circumstances courts must consider when deciding whether to strike enhancements in furtherance of justice.

SB 81 added subdivision (c) to section 1385, which now provides, in part:

(1) 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.

(2) 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 enumerated mitigating circumstances 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.

As relevant here, the enumerated mitigating circumstances include that the current offense is connected to mental illness and the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385(c)(2)(A) through (I) [a list of nine mitigating circumstances to be given great weight)

People v. Anderson (2023) 88 Cal.App.5th 233, 238

People v. Dain (2025) 115 Cal.App.5th 235, 246

Third Holding:

Under section 1385(c), 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.

That is, 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. If a trial court dismisses an enhancement pursuant to section 1385(c), then both the enhancement and its punishment must be dismissed.

Authority:

PEN 1385(c)

Cal. Rules of Court, rule 4.428(c)(3)

People v. Walker (2024) 16 Cal.5th 1024, 1029

Fourth Holding:

We review a court’s sentencing choices for abuse of discretion. A defendant is entitled to a sentencing decision made in the exercise of informed discretion. We presume the court knows and applies the applicable law, absent evidence to the contrary. Where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion. Additionally, a record that is, at best, ambiguous about whether the court understood its sentencing discretion warrants remand.

(Gary note: The opinion then discusses how it concludes that the record is ambiguous on whether the court understood the scope of it discretion.)

Authority:

People v. Nielsen (2026) 119 Cal.App.5th 816, 823

People v. Fuhrman (1997) 16 Cal.4th 930, 944

People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [Remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.]

People v. Ochoa (2020) 53 Cal.App.5th 841, 852–853

Fifth Holding:

The proper remedy is a remand for resentencing. Remand would be unnecessary if the record clearly indicated that the trial court would have reached the same conclusion even if it had been aware of its discretion. But we cannot conclude that the record here so clearly indicates such a result. That is, the record does not demonstrate with unusual clarity that remand would be an idle act.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Flores (2020) 9 Cal.5th 371, 432

Sixth Holding:

The presence of a mitigating circumstance enumerated in section 1385(c)(2) does not dictate that an enhancement should be dismissed. Instead, the ultimate question before the trial court remains whether it is in the furtherance of justice to dismiss an enhancement.

This means that, absent a danger to 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, 1033

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

Seventh Holding:

The defendant further argues that the court erred in limiting his conduct credit to 15% under section 2933.1 We reject the People’s contention that the defendant forfeited his claim of conduct credit error by failing to object below.

To the extent his claim could be forfeited, we would exercise our discretion to consider it because it involves a pure question of law presented by undisputed facts and to forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. However, given our disposition, we do not reach the merits of the defendant’s challenge to his conduct credit award.

Authority:

People v. Hines (1997) 15 Cal.4th 997, 106

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Appellate Principles, Immigration

Case 001101

Posted on by Gary McCurdy

Error and/or relief

In light of Hernandez, decided after the ruling appealed from below, we reverse the order denying the defendant’s motion to vacate his conviction under section 1473.7 because of his inadequate understanding of the immigration consequences, and we remand for further proceedings.

First Holding:

Under Penal Code section 1473.7, a person who is no longer in custody may seek to vacate a conviction on the ground it is legally invalid due to prejudicial error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. The statute was enacted to provide out-of-custody defendants with a means to challenge criminal convictions for which they have suffered unexpected immigration consequences.

Authority:

PEN 1473.7

People v. Vivar (2021) 11 Cal.5th 510, 517

Second Holding:

To prevail under the statute, the defendant must first prove by a preponderance of the evidence that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error. Prejudical error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

In Hernandez, the California Supreme Court made clear that for purposes of establishing error under section 1473.7(a)(1), the focus is not so much on what the defendant was told about the possible immigration consequences of his plea, but on what the defendant subjectively understood those consequences to be.

Keeping in mind that, for noncitizen defendants, preserving their right to stay in the United States is often a crucial factor in deciding whether to plead guilty to criminal charges, the trial court ultimately must decide whether the defendant was prejudicially harmed by his or her inability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 607-608, 614-15, 622-623

Fourth Holding:

The court erred by applying res judicata (based on the previous 2002 denial of a motion to vacate the conviction for inadequate advice on immigration consequences) to bar the defendant’s motion under section 1473.7.

In Ruiz, the court ruled the doctrine of collateral estoppel, an aspect of res judicata, did not preclude the defendant from bringing successive section 1473.7(a)(1) motions on the basis she failed to understand the immigration consequences of her guilty plea. In so ruling, the Ruiz court found it significant that, at the time of the defendant’s first motion, she was required to prove her attorney was ineffective for failing to advise her of those consequences.

But by the time the Ruiz filed her second motion, that requirement had been eliminated, and she only had to show she prejudicially failed to understand the immigration consequences of her plea. Because the second motion involved a different standard for challenging and prevailing on immigration advisement errors, Ruiz was not collaterally estopped from bringing the motion.

The same reasoning applies here.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1068-1070

DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–825

Padilla v. Kentucky (2010) 559 U.S. 356 [a defense attorney’s failure to advise his or her client about the potential immigration consequences of a plea may constitute ineffective assistance of counsel]

Fifth Holding:

Whereas the defendant was required to prove his attorney was ineffective when he petitioned to vacate his guilty plea 25 years ago, that was not the case when he filed his recent section 1473.7(a)(1) motion. Hernandez confirms this is an important point of distinction because the error analysis under section 1473.7(a)(1) turns not on what the defendant was advised regarding the possible immigration consequences of his plea, but on whether he meaningfully understood those consequences and whether he was able to defend against or knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 622-626

Sixth Holding:

Hernandez acknowledged that remand to the trial court for further development of the record will be appropriate in many appeals from denials of section 1473.7(a)(1) motions that were pending when it issued its decision. As the concurring and dissenting opinion observed, remand would allow the defendant an opportunity to make a fuller presentation of evidence with the guidance the Supreme Court has provided in mind and would permit the trial court to make a new ruling taking that additional evidence into account.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 621, fn. 4