Tag Archives: Appellate process

Appellate Principles, Sentencing, Sixth Amendment

Case 000669

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously stated that all of the aggravating factors had been found true by the jury. The only aggravating factor alleged, and found true by the jury was that the victims were particularly vulnerable. The sentence is reversed and the court is directed to consider the sentence in light of the only aggravating factor found true by the jury. Further, the court must consider the defendant’s ability to pay the restitution fines and ancillary fees.

First Holding:

In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.

Authority:

In re Reno (2012) 55 Cal.4th 428, 483

Second Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

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 Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024)16 Cal.5th 730, 768

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

Third Holding:

To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

The determination of whether the crime involved sophistication and planning rests on a vague and subjective standard. Accordingly, we cannot conclude beyond a reasonable doubt that the jury would have found true the two remaining aggravating factors upon which the court relied to conclude the upper term was justified.

We therefore reverse the sentence and remand for the trial court to hold a new sentencing hearing during which it shall only consider aggravating factors that were found true by the jury as part of its analysis of whether to impose an upper term sentence.

Authority:

People v. Lynch (2024)16 Cal.5th 730, 775

Fourth Holding:

Where a trial court imposes fines exceeding the statutory minimum of $300 under section 1202.4(b), and section 1202.45, it must consider the defendant’s ability to pay. Before imposing ancillary costs pursuant to section 1465.8(a)(1) and Government Code section 70373, equal protection principles require the trial court to, on defendant’s request, consider a defendant’s inability to pay such costs.

Authority:

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

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Appellate Principles, Fines and fees, Sentencing

Case 000647

Posted on by Gary McCurdy

Error and/or relief

The court should have granted the defendant’s motion to vacate the restitution fine, which was more than 10 years old.

First Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d). The statute now provides: “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)

Second Holding:

Defendant’s restitution fine was effectively vacated when section 1465.9(d) went into effect. The defendant’s motion, however, was filed a few months before the law took effect. For the statute to apply, it is not clear that a motion is even required, as the law declares the fine uncollectible and that any portion of a judgment imposing those fines is to be vacated. In the interests of judicial economy, we will direct the trial court to correct the abstract of judgment to reflect that the restitution fine has been vacated.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069

Amelioration, Appellate Principles, Fines and fees, Sentencing

Case 000635

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider the recent decision in Kopp on the imposition of fines and fees, and also to conduct a full resentencing in light of this remand for resentencing.

First Holding:

Kopp clarified the standards applied when a defendant challenges the imposition of certain fines and fees on the grounds that they are unlawful because he cannot afford to pay them. We remand the matter to the trial court to apply those standards regarding its imposition of various fines and fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Second Holding:

Because his conviction is not final on direct review, the defendant may be entitled to the benefit of various intervening changes in the law, including AB 333 (gang allegations) and the Racial Justice Act. AB 333, for example, limits what predicate offenses the People can now use to prove a group is a criminal street gang under Penal Code section 186.22.

On remand, the defendant can ask the trial court to provide relief under relevant intervening ameliorative sentencing laws, including but not limited to SB 81, 483, 567, and 1393; AB 333 and 518, as well as any appropriate challenges under the Racial Justice Act. But this court need not decide which intervening laws apply retroactively and whether their application requires any retrial or change in sentence.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 448

People v. Lopez (2025) 17 Cal.5th 388, 400

People v. Buza (2018) 4 Cal.5th 658, 693 [courts abide by a cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more]

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

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Appellate Principles, Discretion, Sentencing

Case 000631

Posted on by Gary McCurdy

Error and/or relief

The sentence for either the attempted murder or the domestic violence should have been stayed pursuant to section 654, because both convictions were based on the same act, namely, the defendant’s act of running over the victim with his SUV.

First Holding:

This matter had previously been remanded for the court to consider its discretion on the application of section 654 as to which count should be sentenced on and which should be stayed. The original judge had retired. The resentencing judge’s statements make clear that in determining whether to stay the sentence on count 1 or count 2, he was deferring to and believed himself to be bound by the sentencing choices already made by the original sentencing court. He did not exercise his own discretion to decide which sentence should be stayed under section 654. Rather, he expressed the belief that the original sentencing judge had already made the relevant determination.

That was error. The original sentencing judge declined to apply section 654 at all, so she never exercised her discretion to decide which sentence should be stayed under section 654. To date, no judge has exercised their discretion on that issue. Because the record does not clearly indicate which sentence the resentencing judge would have stayed had he exercised his discretion, the judge’s failure to exercise his discretion is not harmless.

(GARY note #1: The court did not readdress what section 654 does. As noted, this is the second appeal in the case. The unpublished opinion in the first appeal dealt exclusively with the application of section 654, and the court likely felt it was unnecessary to repeat itself in this second appeal, because its application was not the new question. Instead, it was the failure of the resentencing judge to act independently from the original judge’s views. Under section 654, a single act, or multiple acts during a course of action with a single intent and objective, may result in conviction of multiple crimes, but may be punished under only one of them. The court may choose which count to impose and execute sentence on, and must stay execution on the other count(s) to which section 654 applies. Imposition of a concurrent term is not an option.)

(GARY note #2: The court did not discuss the significance of a trial court’s failure to exercise discretion. But there is ample authority discussing the steps for an appellate court to deal with situations where the lower court did not recognize that it had discretion and it appears that there could have been a different outcome had the judge recognized it and exercised its discretion in an informed manner. I have set out some of the statements from some such cases below as Second Holding and Third Holding, but they were not cited in this opinion, likely because, as this court stated in the unpublished opinion, no judge had ever actually exercised the discretion required under section 654. Always keep in mind, however, that when I use the term “likely” in my notes, it is pure speculation on my part.)

Authority:

PEN 654

Second Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Third Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

People v. Heard (2022) 83 Cal.App.5th 608,

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence, Vicarious liability

Case 000608

Posted on by Gary McCurdy

Error and/or relief

The denial of the defendant’s motion for recall of sentence under section 1172.6 is reversed, and the court is directed to grant the petition. After examination of all the evidence, we conclude that there is insufficient evidence to support any theory today under which the defendant coould be convicted of murder.

First Holding:

The defendant was the assigned getaway driver who was not present in the building where the robbery took place. A bystander was killed by the police during the confrontation between the other defendants and the police. The defendant entered a plea bargain in which he pleaded guilty to one count of felony murder. First degree implied malice murder is not a valid theory of conviction for an accomplice under the provocative act theory of murder; the accomplice must harbor express malice–the specific intent to kill–in order to be properly convicted of first degree murder under this theory.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 662

Second Holding:

The felony murder rule is not applicable where the killing was committed by a third party (e.g., police officer) who was not involved in the perpetration of the underlying felony. Because the felony murder rule is not applicable to these facts, the Banks/Clark inquiry as to the degree of defendant’s participation in the robbery and whether he displayed reckless indifference to human life during the course of the robbery is also inapplicable.

The provocative act murder doctrine arose as an alternative to felony-murder liability in circumstances where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. A provocative act murder case necessarily involves at least three people—the perpetrator of the underlying offense, an accomplice, and a victim of their crime.

Authority:

People v. Taylor (2025) 108 Cal.App.5th 849, 861, 866

People v. Clark (2016) 63 Cal.4th 522

People v. Banks (2015) 61 Cal.4th 788

People v. Antonelli (2025) 17 Cal.5th 719, 727

Third Holding:

SB 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 842-844

Fourth Holding:

This court will ignore the findings purportedly made by the trial court following the remand from the court in the earlier appeal, as they were outside the scope of the remittitur. The remittitur defines the scope of the trial court’s jurisdiction to act, and action which does not conform to the reviewing court’s directions is unauthorized and void. Trial courts are bound by the directions given by a reviewing court and have no authority to retry any other issue or to make any other findings; the court’s authority is limited wholly and solely to following the directions of the reviewing court.

Authority:

In re J.M. (2024) 103 Cal.App.5th 745, 755

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. The requisite malice may be express or implied. Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The defendant’s life-endangering act must proximately cause the victim’s death and to suffice for implied malice murder, the defendant’s act must involve a high degree of probability that it will result in death.

A relevant life-endangering act is one that proximately causes the victim’s death. It is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of the victim and without which the death would not occur.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988-989

People v. Cervantes (2016) 26 Cal.4th 860, 866

Sixth Holding:

Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990

Seventh Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, 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.

The direct aider and abettor must, therefore, act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death. Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim.

The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-992

People v. Collins (2025) 17 Cal.5th 293, 311

People v. Curiel (2023) 15 Cal.5th 433, 468

Eighth Holding:

We remand the case with directions to grant the petition and resentence defendant on the underlying offense of robbery.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137, fn. 3 [Granting the petition for resentencing, as opposed to ordering a new evidentiary hearing, may be the appropriate remedy where a petitioner successfully demonstrates no substantial evidence supports the denial of a section 1172.6 petition even considering erroneously admitted evidence at an evidentiary hearing]

Amelioration, Elements of crime, Sentencing, Standard of review

Case 000604

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s motion under section 1172.6 to recall his sentence on his 1999 murder convictions (he had hired someone to kill his father, and that person also killed the defendant’s mother in the process, all while the defendant was away from the home in which they were killed). We conclude the defendant’s acquittal on first degree murder of his mother precluded a finding that he had intended to kill her. We remand for the court to consider whether he remains guilty of his mother’s murder under a theory of implied malice. In doing so, the court should consider his youth at the time of the offense.

First Holding:

The defendant hired a person to kill the defendant’s father. The hiree did so, but also killed the defendant’s mother. The jury convicted the defendant of first degree murder of the father, but of only second degree murder of his mother. In our view, the defendant’s acquittal of first degree murder as to the mother precluded a finding that he intended to kill her. First degree murder generally requires a premeditated and deliberate intent to kill. Second degree murder requires either an intent to kill without premeditation and deliberation or implied malice—conscious disregard for human life.

Authority:

People v. Whisenhunt (2008) 44 Cal.4th 174, 201

People v. Knoller (2007) 41 Cal.4th 139, 151–152

Second Holding:

After the defendant’s trial, the Legislature amended the law of murder to eliminate liability based on imputed malice, including the natural and probable consequences doctrine. Section 1172.6 provides retroactive relief to defendants convicted under those now-invalid theories. Under principles of collateral estoppel, a jury’s finding at trial precludes a contrary finding in a section 1172.6 hearing.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723–724

People v. Arnold (2023) 93 Cal.App.5th 376, 385-386 [discussing collateral estoppel]

Third Holding:

We review the trial court’s factual findings in denying a section 1172.6 petition for substantial evidence. But the preclusive effect of a defendant’s partial acquittal is a legal issue we review de novo.

Authority:

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Fourth Holding:

We presume the jury meticulously followed the trial court’s instructions. We thus conclude the jury found that that the defendant lacked an intent to kill the mother, precluding the trial court’s contrary finding.

Authority:

People v. Cruz (2001) 93 Cal.App.4th 69, 73

Fifth Holding:

The erroneous finding was not harmless. Although the record could have supported liability under a theory of implied malice, the trial court did not evaluate that theory and we cannot conclude it would have reached the same result if it had. The defendant was 19 years old at the time of the crimes—still on the lower end of the young adult age range. Recent decisions have emphasized that youths may be less able to appreciate risks and consequences and thus that courts must consider defendants’ youth in deciding if they acted with implied malice or reckless indifference.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004, 1007

People v. Pittman (2023) 96 Cal.App.5th 400, 416–418

Amelioration, Evidence, Fifth Amendment, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000601

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from the denial of a petition for recall of sentence under section 1172.6. We conclude there is substantial evidence to support the trial court’s finding the defendant is guilty of murder, beyond a reasonable doubt, under a still-valid theory, and reversal for resentencing is unwarranted. As for the defendant’s evidentiary challenges, however, we hold the trial court prejudicially erred in admitting and relying on the grand jury transcript and police reports. As a result, we vacate the trial court’s order, and remand the matter for a new evidentiary hearing.

First Holding:

SB 1437 was enacted to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. Through section 1172.6, it provided a means of relief for those whose convictions would no longer be considered murder under the revised law.

Authority:

SB 1437

PEN 1172.6

Second Holding:

In the context of an appeal from a criminal conviction where substantial evidence does not support a conviction, the remedy is generally not a new trial. The sufficiency of the evidence is considered by examining the whole record in the light most favorable to the judgment and deciding whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272 [the federal and California Constitutions preclude retrial if a court determines the evidence at trial was insufficient to support a conviction as a matter of law]

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Navarro (2021) 12 Cal.5th 285, 311

Third Holding:

The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that he has been convicted through a judicial process which is defective in some fundamental respect.

Thus, as a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Hernandez (2003) 30 Cal.4th 1, 6

Fourth Holding:

Although principles of double jeopardy are not implicated in the voluntary section 1172.6 petition process, an insufficient evidence claim, coupled with additional challenges to the admission of evidence, may give rise to an issue of remedy.

If, considering the whole record in the light most favorable to the judgment, there is no substantial evidence to support the trial court’s denial of the section 1172.6 petition after an evidentiary hearing, it signals a substantive failure of proof by the government much like it does in the context of a direct appeal from a criminal conviction, suggesting reversal for resentencing is the appropriate remedy. Under 1172.6(d)(3) if the prosecution fails to sustain its burden of proof, the petitioner shall be resentenced.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1068

People v. Emanuel (2025) 17 Cal.5th 867, 875, 896 [directing resentencing be granted on remand where insufficient evidence supported denial of sec. 1172.6 petition after an evidentiary hearing]

Fifth Holding:

On the other hand, a prejudicial procedural error (such as an evidentiary error), on its own, typically signals nothing about whether the petitioner is or is not guilty of murder under the law as amended by SB 1437, but points only to a flawed judicial process. In cases involving only this latter situation, remand for a new evidentiary hearing is ordinarily the appropriate remedy. This remedy is especially apt in the context of section 1172.6, which was created by the Legislature as an act of lenity.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137 & fn. 3 [in the absence of a substantial evidence challenge, prejudicial evidentiary errors warrant remand for a new evidentiary hearing rather than remand for resentencing]

People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227, 1255 [remanding for a new evidentiary hearing where trial court impermissibly relied on evidence admitted at the petitioner’s trial that contradicted jury findings]

People v. Nuno (2024) 105 Cal.App.5th 1030, 1062–1063 [conditionally reversing denial of sec. 1172.6 petition after evidentiary hearing to permit the trial court to reconsider discovery motion, and to order a new evidentiary hearing if additional evidence disclosure was warranted]

People v. Hill (2024) 100 Cal.App.5th 1055, 1067–1068 [sentence modification procedure under sec. 1172.6 is an entirely voluntary process and constitutes an act of legislative lenity, not a new criminal prosecution]

Sixth Holding:

The grand jury transcript is not admissible under section 1172.6(d)(3)’s exception for evidence previously admitted at a prior hearing or trial.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116

Seventh Holding:

Since Davenport and Cody, appellate courts have considered whether section 1172.6(d)(3)’s hearsay exception extends to transcripts from grand jury proceedings. In Ocobachi, the court held it did not. The court explained the existing hearsay exception for former testimony found in Evidence Code section 1291 requires a showing of witness unavailability) and that the party against whom the former testimony was offered had been given the right and opportunity to cross-examine the declarant.

Unlike former testimony given during a petitioner’s preliminary hearing or original trial, Ocobachi pointed out the person investigated at a grand jury proceeding is not a party but a target who has no right to appear or offer evidence at grand jury proceedings. Thus, unlike in Davenport and Cody, admitting a transcript of grand jury testimony under section 1172.6(d)(3) would require ignoring both provisions of Evidence Code section 1291, creating an overbroad hearsay exception. In contrast, Robinson [review granted] concluded that the grand jury transcript may be considered at the section 1172.6 hearing.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158–1159

People v. Cody (2023) 92 Cal.App.5th 87, 103

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1183

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted Feb. 26, 2025, S288606

Eighth Holding:

The proper interpretation of a statute is a question of law we review de novo. We consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Ninth Holding:

Grand jury proceedings are not adjudicative, unlike hearings and trials in a criminal proceeding, nor are they adversarial. Rather, they are investigatory proceedings: a judicial officer does not typically preside over grand jury proceedings; a defendant does not receive notice of grand jury proceedings; and a defendant has no right to appear, offer evidence, or cross-examine witnesses. Despite similarities in their function, unlike preliminary hearings, grand jury proceedings are one-sided investigatory proceedings.

Authority:

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Petrilli (2014) 226 Cal.App.4th 814, 824

People v. Arroyo (2016) 62 Cal.4th 589, 595

Tenth Holding:

It would be anomalous for the Legislature to have amended the statute under SB 775 to tighten the evidentiary rules by excluding preliminary hearing testimony under section 872(b) [which allows a magistrate to find probable cause at a preliminary hearing based on the testimony of a qualified law enforcement officer that would otherwise be excluded as inadmissible hearsay], which is subject to cross-examination, but not exclude similar section 939.6(c), testimony received at a grand jury proceeding, which is untested by cross-examination.

Authority:

People v. Ledesma (1997) 16 Cal.4th 90, 101 [in construing statutes, courts should strive to avoid anomalous results]

Eleventh Holding:

We agree with the parties that the police reports and related witness statements collected by the police are hearsay because they were created out of court and were offered (and considered) for the truth of the matter asserted. These documents also contain out-of-court statements of witnesses that constitute another layer of hearsay when offered for the truth of the matter asserted.

While there may be an applicable exception for some of the information contained in the police reports, there must also be a hearsay exception for out-of-court witness statements recorded in the documents that were considered for the truth of the matter asserted. Many of the findings taken from the police reports involved nonparty witness statements recorded by the police that were considered for the truth of the matter asserted, but no hearsay exception was identified

Authority:

EVID 1200(a)[hearsay is an out-of-court statement offered to prove that its assertion is true]

People v. Hall (2019) 39 Cal.App.5th 831, 844–845 [arrest report admissible under official records exception to hearsay rule to the extent it reported an act, condition, or event observed by law enforcement pursuant to Evid. Code sec. 1280]

Walker v. Superior Court (2021) 12 Cal.5th 177, 192 [observing the general rule that each level of out-of-court statements in documents such as probation and police reports must fall under a hearsay exception to be admitted into evidence]

Twelfth Holding:

Judicial notice extends only to notice of the document’s existence, not necessarily to the truth of the facts contained within a document. Judicial notice of a document is not a vehicle for the admission of hearsay contained within the document.

Authority:

People v. Moore (1997) 59 Cal.App.4th 168, 178

People v. Woodell (1998) 17 Cal.4th 448, 458–459 [the fact that a document may be judicially noticed under Evid. Code sec. 452 does not mean all the hearsay statements within the document are admissible or noticeable]

Thirteenth Holding:

Prejudice is shown where it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Fourteenth Holding:

On other questions the defendant has asked us to address, we decline to do so in light of the remand and reversal. As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.

Authority:

People v. Slayton (2001) 26 Cal.4th 1076, 1084

Abstracts and Minutes, Appellate Principles

Case 000593

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment listed fines and fees that were not imposed by the court. It must be corrected.

Holding:

The parties agree that we should order the trial court to correct its minutes and prepare an amended abstract of judgment that accurately reflects that the trial court suspended and never imposed any fines and fees other than victim restitution. We thus instruct the trial court to issue a corrected minute order and an amended abstract of judgment indicating that the only monetary obligation imposed on the defendant is the amount ordered for victim restitution.

(Gary note:  The court did not cite authority for its power to order correction of an abstract of judgment, so in addition to the court’s reference to Lynex,  I have listed several cases it could have relied on.)

Authority:

In re Lynex (2026) 118 Cal.App.5th 756, 769 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case]

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Appellate Principles, Duty of the court, Sentencing

Case 000550

Posted on by Gary McCurdy

Error and/or relief

The amount of credit for time served was short by three days. The judgment is modified to include those three days.

Holding:

The appellate court has authority to modify the judgment to correct the credit for time served.

Authority:

People v. Jones (2000) 82 Cal.App.4th 485, 493–494 [modifying judgment to correct custody credits]