Tag Archives: Appellate process

Appellate Principles, Duty of counsel, Duty of the court, Sentencing

Case 000548

Posted on by Gary McCurdy

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Amelioration, Appellate Principles, Plea bargains, Retroactivity, Sentencing, Statutory interpretation

Case 000532

Posted on by Gary McCurdy

Error and/or relief

(You might need a cuppajoe or demitasse of tea or mug o’cocoa for this Error and/or relief, because Gary has a few words to share.  If THAT doesn’t put you to sleep, then you’re safe to move on to the 11 items I’ve listed as Holdings.  I happen to be quite interested in the impact of section 1171 on the application of the Stamps remedy that involves setting aside the plea if the prosecution doesn’t like effect that application of ameliorative provisions have where the upper term had been stipulated to in the original plea bargain.  This opinion alludes to that in what I have labeled as the Eleventh Holding.)

Upon recall of the sentence under section 1172.75, the trial court should have addressed whether the changes in the gang criminal activity law effected by AB 333 applied to the defendant’s judgment. The trial court’s resentencing order is vacated. The gang conviction (sec. 186.22(a)) on count 3 is reversed and the true finding on the gang enhancement (sec. 186.22(b)(1)) on count 4 is vacated. The prosecution shall have the opportunity to establish the gang conviction and enhancement under the current version of section 186.22. The matter is remanded for further proceedings.

(Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

(This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

(On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

(But Wait! There’s More!

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, (renumbered) section 1172.75 made this change retroactive.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A defendant is entitled to a full resentencing under section 1172.75 even when the original sentence was imposed pursuant to a plea agreement.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Carter (2023) 97 Cal.App.5th 960, 972

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Effective January 1, 2022, Assembly Bill 333 [AB 333] made several changes to the criminal street gang laws.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Fifth Holding:

Previously, a defendant who had committed an offense to benefit the reputation of a criminal street gang, but with no other benefit, was subject to the enhancement. Amended section 186.22(g) now requires the prosecution to show that the common benefit to the gang is more than reputational. Additionally, to prove a pattern of gang activity was collectively engaged in by members of the gang under amended section 186.22(f), the prosecution must show a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Authority:

PEN 186.22

People v. Sek (2022) 74 Cal.App.5th 657, 667

People v. Clark (2024) 15 Cal.5th 743, 749

Sixth Holding:

Under Estrada, ameliorative changes to criminal statutes apply to all cases not final on appeal absent contrary legislative intent. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. Assembly Bill 333 added new elements to the substantive offense and enhancements in section 186.22, and thus its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 744–745

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Nasalga (1996) 12 Cal.4th 784, 792

People v. Lopez (2025) 17 Cal.5th 388, 394–395

Seventh Holding:

The defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. The defendant regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for Estrada purposes.

Authority:

People v. Padilla (2022) 13 Cal.5th 152, 161-162, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of the defendant’s sentence effectively vacates his original sentence and commitment]

Eighth Holding:

Courts that have applied AB 333 retroactively have permitted retrial of the gang charges on remand when the defendant was convicted following a jury trial. As one court explained, the proper remedy for this type of failure of proof —where newly required elements under amended section 186.22 were never tried to the jury—is to remand and give the People an opportunity to retry the affected charges. We see no reason the prosecution should be precluded from establishing the elements of section 186.22 as amended by AB 333 because the defendant’s sentence resulted from a plea agreement.

Case law has recognized the prosecution must have an opportunity to establish an element of an offense subsequently added by statute even if the defendant was convicted pursuant to a plea agreement. When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. Such a retrial is not barred by the double jeopardy clause or ex post facto principles. Fairness dictates that the prosecution be given the opportunity to establish the additional element on remand when a conviction based on a plea bargain is vacated due to a statutory amendment adding an element the prosecution previously had no reason to prove.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 764

People v. Cooper (2023) 14 Cal.5th 735, 746–747

People v. Sek (2022) 74 Cal.App.5th 657,669-670

People v. E.H. (2022) 75 Cal.App.5th 467, 480

People v. Lopez (2020) 57 Cal.App.5th 409, 416

People v. Eagle (2016) 246 Cal.App.4th 275

People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 and fn. 2

Ninth Holding:

Requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. Because a plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound, a trial court may not violate the agreement by modifying it. Under Doe, however, the terms of the plea bargain include future changes in the law. By implementing such changes, the trial court is not altering the terms of the plea bargain.

Authority:

PEN 1016.8

PEN 1192.7(b)

Doe v. Harris (2013) 57 Cal.4th 64, 73–74

People v. Stamps (2020) 9 Cal.5th 685, 701

People v. Harrell (2023) 95 Cal.App.5th 161, 168

Tenth Holding:

Pursuant to Doe, the defendant’s plea agreement is deemed to incorporate the Legislature’s subsequent enactment of AB 333, and we agree with the parties that AB 333 applies retroactively to the defendant’s case. Requiring the parties’ compliance with changes to section 186.22 made retroactive to the defendant does not violate the terms of the plea agreement. For these reasons, the prosecution must be given an opportunity on remand to establish the elements of the substantive gang offense charged on count 3 and the gang enhancement on count 4 pursuant to amended section 186.22. Following any proceeding to establish those elements or if the prosecution chooses to forego its opportunity to comply with AB 333, the trial court must conduct a full resentencing.

Authority:

Doe v. Harris (2013) 57 Cal.4th 64, 73

People v. Sek (2022) 74 Cal.App.5th 657,669-670

People v. Valenzuela (2019) 7 Cal.5th 415, 425

Eleventh Holding:

As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts. We note though for the benefit of the parties and the trial court that the defendant’s resentencing under section 1172.75 remains subject to section 1171, which provides (effective 1/1/2025) that any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement. Section 1171 was further amended effective 1/1/2026 to provide that this section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding. On remand, the trial court must comply with the current version of section 1171 when resentencing the defendant.

Authority:

PEN 1171(c)(3) and (e)

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

Appellate Principles, Effective assistance of counsel, Evidence, Fifth Amendment, Sentencing

Case 000517

Posted on by Gary McCurdy

Error and/or relief

It was error to include in the restitution order reimbursement for expenses incurred by the victim that were not caused by the defendant’s criminal conduct.

First Holding:

The defendant concedes he forfeited his Fifth Amendment claim by failing to object during trial on this ground to the admission of the pretext call evidence, the prosecutor’s arguments and questions on his silence, and the adoptive admission jury instruction. We elect to address the issue in order to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to jury instruction forfeits appellate claim of error]

People v. Adanadus (2007) 157 Cal.App.4th 496, 512 [requiring timely objection to preserve prosecutorial misconduct claim]

People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [claim based on privilege against self-incrimination may be forfeited]

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

Second Holding:

The police arranged a pretext call between the victim and the defendant, during which the defendant did not deny the victim’s accusations. That evidence was presented at trial as an adoptive admission. The defendant argued that it was a violation of his rights under the Fifth Amendment, because he had previously been advised by counsel to make no statements to the victim. The People’s emphasis on the presence or absence of government coercion fails to account for the rationale underlying adoptive admissions, which is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.

That inference is only justified where the person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.

But advice of counsel is one form of restraint that might bar a free response by a person accused of a crime and therefore may not give rise to an inference of acquiescence or guilty consciousness as an adoptive admission. An accused’s express invocation of the right to remain silent on the advice of counsel is precisely a circumstance that may lend itself to the inference that the accused’s silence in the face of accusations stems merely from the assertion of that right.

[Gary note on the rest of the story–the appellate court proceeded to conclude that under the actual facts of the case, it was not error to allow the evidence as an adoptive admission.  I have included this holding merely for its educational value, though it did not assist this defendant.]

Authority:

People v. Simmons (1946) 28 Cal.2d 699, 712, 715–716

People v. Riel (2000) 22 Cal.4th 1153, 1189

Third Holding:

A victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. The trial court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. The hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution, and no particular kind of proof evidence is required.

Authority:

PEN 1202.4

People v. Baker (2005) 126 Cal.App.4th 463, 470

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The restitution power conferred by section 1202.4 in cases where a criminal defendant is sentenced to prison is not as broad as the court’s power to order restitution as a condition of probation, which need only be reasonably related to the crime of which the defendant was convicted or to future criminality. The victim’s mother’s expense incurred for paying for the defendant’s trip to a foreign country was entirely unrelated to the defendant’s criminal conduct, as was the victim’s rideshare share expenses on the day of the crime. Those portions of the restitution order must be stricken.

Authority:

People v. Martinez (2017) 2 Cal.5th 1093, 1101

Amelioration, Sentencing

Case 000514

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the court to consider whether the defendant, serving a Three Strikes life sentence, is entitled to reduction under the Three Strikes Reform Act of 2012 and other ameliorative provisions at a new hearing under section 1172.75.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county are directed to identify individuals in custody and “currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and provide the information to the court who sentenced the individuals identified. The court is directed to review the judgment, and if it included a sentencing enhancement described in section 1172.75(a), recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act. Pursuant to the full resentencing rule, the court may also exercise its sentencing discretion in light of any changed circumstances.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 850, 878

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

Third Holding:

With respect to sentencing error in particular, the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it. The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme. Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case.

Authority:

Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256

Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303

Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

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, Sentencing

Case 000507

Posted on by Gary McCurdy

Error and/or relief

The defendant was entitled to full resentencing under section 1172.75, even though the now-invalid prior prison enhancement was stayed at the original sentencing.

First Holding:

When a prior conviction pursuant to section 667.5(b) is stricken pursuant to the procedures in section 1172.75, a defendant is entitled to full resentencing under section 1172.75(d).

Authority:

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

Second Holding:

The failure of the People to raise the issue in the trial court forfeits the issue on appeal. The reason for the forfeitur] rule is that 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 forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Sperling (2017) 12 Cal.App.5th 1094, 1101

People v. Partida (2005) 37 Cal.4th 428, 433-434

Third Holding:

If the appellate court’s order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order. At the hearing upon remand, the trial court addressed only the section 667(a), prior convictions as directed by disposition in the Opinion. While the trial court could have addressed the section 667.5(b) priors and the stayed sentences at that time of remand based on a change of the law, it did not do so and was never asked to consider resentencing on the prior prison terms.

Authority:

People v. Walker (2021) 67 Cal.App.5th 198, 205

People v. Hargis (2019) 33 Cal.App.5th 199, 205-207 [where a change in the law becomes effective after the appellate court’s opinion but before the hearing on the limited remand, the trial court could consider the new law despite the limited remand]

Appellate Principles, Effective assistance of counsel, Pleading

Case 000506

Posted on by Gary McCurdy

Error and/or relief

Under a convoluted set of circumstances, misdemeanors were alleged in the information that were not shown at the preliminary examination. Conviction on those misdemeanors was reversed.

First Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. No distinction is made between felony offenses and misdemeanor offenses.

Thus, misdemeanors included in an information must be supported by a showing of probable cause at the preliminary hearing. If not, an amendment that results in a conviction of the erroneously added offense is reversible error. Permitting the two misdemeanor counts to proceed to trial as part of a felony information without having been shown at the preliminary hearing was error and requires the reversal of the convictions for counts 1 and 2.

Authority:

PEN 1009

People v. Griffith (2011) 196 Cal.App.4th 943, 951

People v. Dominguez (2008) 166 Cal.App.4th 858, 867–868 [conviction of improperly added charges is unquestionably prejudicial]

Second Holding:

Both parties agree that the defendant forfeited his claim on appeal by failing to object to the improper amendment before trial, but both ask us to consider the merits to avoid a claim of ineffective assistance of counsel. We agree the claim was forfeited but exercise our discretion to decide the impact of the errant amendment.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 179, 181 [concluding the issue of prosecution for an offense not shown at the preliminary hearing was waived but reversing for prejudicial ineffective assistance of counsel for failure to object with specificity because a superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing]

People v. McCullough (2013) 56 Cal.4th 589, 593 [neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges]

Appellate Principles, Sentencing

Case 000496

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on one count under section 654.

Holding:

The defendant was convicted under two separate Penal Code sections for the same act. Section 654 provides that an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one provision. The sentence imposed for count 7 should have been stayed. The defendant requests a remand for resentencing, but we may modify the judgment ourselves to stay the count 7 sentence.

(GARY NOTE: The opinion does not mention whether it concluded that the trial court would have imposed sentence on the count carrying the longer sentence (15 years to life) rather than on the count carrying the shorter term (180 days), a choice that has been restored to the judiciary with the passage of AB 518 several years ago. But the defendant’s total sentence on the numerous counts consisted of several hundred years to life. Allowing the trial court to choose between the counts would likely not have resulted in earlier release. On the other hand, it is conceivable that on remand, the trial court might have had other options on a full resentencing.)

Authority:

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

People v. Lopez (2004) 119 Cal.App.4th 132, 139

Appellate Principles, Pleading, Sentencing, Standard of review

Case 000494

Posted on by Gary McCurdy

Error and/or relief

It was error to impose the upper term on aggravating factors there were not stipulated to or found true beyond a reasonable doubt by a jury.

First Holding:

We review the validity of a jury trial waiver under the totality of the circumstances unique to each case. Relevant circumstances can include the nature of the colloquy prior to the court’s acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver. Ultimately, the record must affirmatively show the waiver is voluntary and intelligent under the totality of the circumstances. When a defendant is denied the right to a jury trial on aggravating factors, this error is not structural but subject to harmless error analysis.

Authority:

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 167

People v. Daniels (2017) 3 Cal.5th 961, 991

People v. Collins (2001) 26 Cal.4th 297, 310

People v. Lynch (2024) 16 Cal.5th 730, 750-751, 755

Second Holding:

We review procedural due process claims de novo because the ultimate determination of procedural fairness amounts to a question of law.

Authority:

In re Jonathan V. (2018) 19 Cal.App.5th 236, 241

Third Holding:

Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. However, a defendant’s failure to object would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Also, it is well-established that an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party.

Authority:

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

People v. Smith (2003) 31 Cal.4th 1207, 1215

Fourth Holding:

Under Apprendi, any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt. The Varnell court nevertheless held there is no due process right to notice in the accusatory pleading with respect to a sentencing factor. A sentencing factor is a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.

Because sentencing factors do not operate to increase the penalty for a crime beyond the statutory maximum, they are not required to be pleaded. Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. The California Supreme Court has yet to squarely address whether due process requires pleading and notice of aggravating factors under the most recent sentencing laws.

Authority:

In re Varnell (2003) 30 Cal.4th 1132, 1135, fn.3, 1142

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 95

People v. Lynch (2024) 16 Cal.5th 730, 769 [stating it was not necessary to decide exactly what the statute and the federal Constitution demand in the pleading and notice context]

Fifth Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. Here, the court’s findings that the defendant “has an extensive prior criminal history” and he “was on a grant of misdemeanor probation when he picked up the new charge” constitute qualitative decisions that go beyond the bare fact of the existence of the prior conviction and, absent a waiver, he was entitled to a jury trial on those factors.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085, 1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

When a court improperly relies upon a factor that was not properly proven at a jury trial, the error 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. If any aggravating circumstance fails to meet this standard, “the defendant is entitled to a remand for resentencing.

Authority:

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

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

Appellate Principles, Sentencing

Case 000486

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been stayed under section 654.

First Holding:

Section 654(a) provides that 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. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

People v. Bey (2025) 108 Cal.App.5th 144, 167

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000481

Posted on by Gary McCurdy

Error and/or relief

Denial of the petition for recall of sentence under section 1172.6 is reversed, and the matter is remanded for the court to redetermine whether petitioner acted with reckless indifference to human life, taking into consideration his youth at the time of the offense. We also conclude substantial evidence does not support the court’s finding that petitioner aided and abetted the murder with intent to kill and the denial of the petition therefore cannot be upheld on this alternative ground.

First Holding:

Although petitioner briefly argued in the superior court that his youth should be considered in the court’s analysis of whether he was a major participant in the underlying felony and acted with reckless indifference to human life, the superior court did not address this argument. Indeed, the superior court may have felt compelled to conclude, based on the state of the law at the time, that petitioner’s youth was not a relevant factor, given that petitioner was a young adult at the time he committed the offense and not a juvenile.

We continue to find there was substantial evidence for the trial court to conclude that the defendant acted with indifference of human life, but pending this appeal, there have been cases that squarely hold that the court should consider youth of a nonjuvenile in that determination.

If we do not address this issue, petitioner may be able to file a second petition for resentencing in the superior court to have the court consider his youth as part of the totality of circumstances bearing on whether he acted with reckless indifference to human life. In the interests of justice and for the sake of judicial economy, we address this argument on the merits. We conclude that petitioner is entitled to a new evidentiary hearing to apply new law relating to the effect, if any, of his youth on the court’s reckless indifference finding.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1008

Second Holding:

We review the court’s findings for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that petitioner acted with reckless indifference.

Authority:

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

People v. Emanuel (2025) 17 Cal.5th 867, 885

Third Holding:

In the first stage of this appeal–before review was granted and the matter was transferred back to this court–petitioner raised the argument (that the court should take into consideration the defendant’s youth) in his reply brief for the first time. Ordinarily, we do not consider issues raised for the first time in a reply brief. As such, this argument was not addressed in our prior opinion.

Authority:

In re Luke H. (2013) 221 Cal.App.4th 1082, 1090

Fourth Holding:

During the pendency of this appeal, the appellate court in Jones addressed the relevance of youth to the reckless indifference finding in a case involving a young adult who was 20 years old at the time of the offense.

Authority:

People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

Fifth Holding:

In Oliver, the appellate court assumed, without deciding, that the trial court was required to consider the petitioner’s youth (23 years of age) in reference to the petitioner’s mental state, but held that its failure to do so was harmless under the standard of Watson

Authority:

People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 and fn. 8

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

Sixth Holding:

In Pittman, the court applied the Watson standard and concluded there was a reasonable possibility the failure to consider the petitioner’s youth impacted the trial court’s decision. The court noted inferences of immaturity could be drawn from the fact that the petitioner was 21 years old when he participated in the attack with two peers who were 16 and 17 years old. Additionally, the crime suggested the participants acted impulsively, under the influence of rashness, and while intoxicated. Thus, the court determined the interests of justice were best served by remanding for the court to consider whether youth impacted the petitioner’s ability to form the requisite mental state for second degree murder.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417-418

Seventh Holding:

In Jiminez, the appellate court agreed that there had been a significant change in the law governing young adult offenders since the ruling on the first petition, and therefore the doctrines of collateral estoppel and law of the case did not apply. In this regard, the court noted that early cases addressing this issue of a petitioner’s youth applied only to juvenile offenders under the age of 18, and only to the major participant and reckless indifference findings.

Thereafter, however, the law was expanded to hold that youth was a consideration for other mental state requirements, including implied malice, and additionally expanded to include young adults who were in their late teens and early 20’s when they committed the crimes. Additionally, the Legislature had enacted similar changes to a variety of statutes to expand youth-related considerations to persons 25 years of age and younger. The court also determined that the error in failing to consider the petitioner’s age was not harmless under the Watson standard.

Authority:

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

Appellate Principles, Discretion, Standard of review

Case 000479

Posted on by Gary McCurdy

Error and/or relief

In this People’s appeal from the order of the juvenile court denying its motion to transfer the juvenile matter to adult court, the order retaining jurisdiction in juvenile court is affirmed, even though the respondent is well over 25 years of age.

First Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The court’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo. A decision based on insufficient evidence or the court’s erroneous understanding of applicable law is subject to reversal. But we do not reweigh the evidence and we do not substitute our discretion for the discretion exercised by the trial court. We draw all reasonable inferences in support of the court’s findings, not against them. We are concerned only with whether the circumstances reasonably justify the trier of fact’s findings. When evidence reasonably justifies the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165, 169

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re J.S. (2024) 105 Cal.App.5th 205, 211

Second Holding:

The ultimate question for the juvenile court in a transfer petition is whether a minor is amenable to rehabilitation before the juvenile court’s jurisdiction expires. To order a minor’s transfer to a court of criminal jurisdiction, the juvenile court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court, which for persons 25 years or older extends for up to two years from the date of disposition. the prosecution bears the burden of proving by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 607(d) [The court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Section 707. The court shall exercise jurisdiction in conformance with the objectives of the juvenile court.]

WIC 707(a)(3)

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re Miguel R. (2024) 100 Cal.App.5th 152, 167

Third Holding:

In making that determination, the juvenile court must consider five specific factors. The statute also sets forth a nonexhaustive list of relevant factors for the juvenile court to consider with respect to each of the five criteria. If the juvenile court orders a transfer to criminal court, it must recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

In re J.S. (2024) 105 Cal.App.5th 205, 212

Fourth Holding:

The language used in a statute or constitutional provision should be given its ordinary meaning, and if the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters). Courts generally must accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose, and a construction making some words surplusage is to be avoided.

The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. We examine statutory language, not in isolation, but in the context of the statutory framework as a whole to discern its scope and purpose and to harmonize the various parts of the enactment.

Authority:

People v. Valencia (2017) 3 Cal.5th 347, 357

Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735

Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379, 1387

People v. Prudholme (2023) 14 Cal.5th 961, 975

Fifth Holding:

Language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered. Thus, a decision is authority only for the points actually involved and actually decided.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 154–155

People v. Brooks (2017) 3 Cal.5th 1, 110

Sixth Holding:

Failure to offer reasoned analysis of an issue constitutes a waiver. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. The People’s failure to develop a legal analysis that is tethered to the issue they raised and is supported by relevant authority compels rejection of their claim of error. We will not develop that analysis for them.

Authority:

Rule 8.204(a)(1)(B) [Each brief must state each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority]

Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008

Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 188, fn. 8 [It is not this court’s role to connect the dots]