Tag Archives: Due Process

Due process, Elements of crime, Pleading, Sentencing

Case 001133

Posted on by Gary McCurdy

Error and/or relief

The gang conspiracy convictions are unsupported by substantial evidence that defendants committed the target offense charged, i.e., a violation of section 26100(c). We therefore modify the verdicts on count 5 to reflect convictions for gang conspiracy based on a lesser included target felony violation of section 26100(d). Resentencing is required on this count and vacate the sentences.

The sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22(b)(4) was neither pled nor proved. Additionally, imposition of both the gang enhancement and firearm enhancement on this count violates the dual use prohibition set forth in section 12022.53(e)(2).

We remand for resentencing.

(Gary note: This was a multiple-defendant case with an extremely long opinion. There were many issues, most of which resulted in a finding of no error, and I have not attempted to list them all.)

First Holding:

The information charged defendants in count 5 with gang conspiracy for promoting, furthering, assisting, or benefitting from felonious criminal conduct, specifically Penal Code section 26100(c). Section 26100(c) is violated by the willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle.

Authority:

PEN 26100(c)

Second Holding:

In this case there was no evidence that a firearm was discharged at anyone other than an occupant of a motor vehicle. Under sections 1181 and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

In a conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime included in the alleged target offense.

Authority:

PEN 1181

PEN 1260

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

People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [the trial court has a sua sponte obligation to instruct on lesser included target offenses if there is evidence from which the jury could find a conspiracy to commit a lesser offense]

Third Holding:

It is well settled that a section 182.5 conspiracy (i.e., conspiracy in connection with participation in a criminal street gang) relates only to the commission of a felony. Thus, a gang conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.

A violation of section 26100(d) [discharging a firearm from a motor vehicle] is a wobbler, meaning it is chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor. An attempted or completed felony violation of section 26100(d) may appropriately serve as the target offense for a gang conspiracy conviction.

In light of the insufficient evidence of a violation under subdivision (c), we will modify the verdicts on count 5 to reflect the gang conspiracy convictions are predicated upon a felonious violation of section 26100(d).

Authority:

PEN 26100(d)

People v. Johnson (2013) 57 Cal.4th 250, 262

People v. Park (2013) 56 Cal.4th 782, 789

Fourth Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. However, a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.

When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

An offense is necessarily included within another if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.

Authority:

People v. Reed (2006) 38 Cal.4th 1224, 1226-1227

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Sanchez (2001) 24 Cal.4th 983, 987 [a defendant cannot be convicted of both a greater offense and a necessarily included offense based on the commission of the same act]

People v. Robinson (2016) 63 Cal.4th 200, 207

Fifth Holding:

The elements of the crimes of active participation in a gang (section 186.22) and gang conspiracy (section 182.5) are nearly identical.

However, whereas active participation may be committed by any of the alternative means of promoting, furthering, or assisting in felonious conduct by gang members, gang conspiracy may be committed by any of the alternative means of promoting, furthering, assisting, or benefitting from the felonious conduct of gang members.

Although all the elements of the active participation offense are also included in the gang conspiracy offense, it is possible to commit gang conspiracy without committing the active participation offense if the defendant merely benefits from the felonious criminal conduct of fellow gang members.

Thus, because gang conspiracy may be committed without necessarily committing the offense of active participation in a criminal street gang, active participation is not a necessarily included lesser offense.

Authority:

PEN 186.22

PEN 182.5

People v. Robinson (2016) 63 Cal.4th 200, 207

People v. Hinojos (2025) 111 Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that section 654 did not bar imposition of the gang enhancement on the defendant’s gang conspiracy convictions]

Sixth Holding:

The court erred in sentencing defendants pursuant to section 186.22(b)(4) because this alternate penalty provision was not alleged in the information. Section 186.22(b)(4) is an alternate penalty provision prescribing indeterminate terms of life imprisonment for those who committed certain enumerated felonies under the same gang-related circumstances described elsewhere in section 186.22. If the elements are present, the sentence will be an indeterminate term of life, with a specified minimum term.

A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. As a matter of due process, an alternative punishment provision must be pleaded and proved.

The failure to plead an alternate penalty provision deprives the defendant of fair notice of his or her sentencing exposure by failing to inform him or her that an alternate sentence carrying a higher term will be pursued.

Additionally, a defendant is deprived of adequate notice if punishment is imposed under one provision, and an enhancement was alleged under a different, mutually exclusive provision, even if facts supporting the alternate allegation are contained in the information.

Even if the statute alleged in the information cross-references the statute under which an alternate penalty is pursued, the information fails to inform the defendant that the prosecution will seek to impose the more stringent sentence; therefore, imposition of the higher alternate sentence would violate due process.

Authority:

People v. Lopez (2022) 12 Cal.5th 957, 970

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899–900, and fn. 6

In re Vaquera (2024) 15 Cal.5th 706, 717, 723, 724 [information alleging One Strike allegation pursuant to sec. 667.61(b)/(e)(4) for an offense against more than one victim was inadequate to provide the defendant notice the prosecution might seek a One Strike sentence pursuant to sec. 667.61(j)(2) for an offense against a child under 14 years of age, even though the facts supporting the allegation were contained in the information].

People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under sec. 186.22(b) did not give the defendant adequate notice that an alternate sentence under subd. (d) might apply]

Seventh Holding:

The matter must be remanded for full resentencing.

Authority:

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

People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing hearing as to all counts in light of an unauthorized enhancement]

People v. Delgado (2010) 181 Cal.App.4th 839, 855 [It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence]

People v. Lopez (2022) 12 Cal.5th 957, 975–976 [remanding for resentencing after finding the alternate penalty provision set forth in sec. 186.22(b)(4) to be inapplicable]

Eighth Holding:

In a case in which it is proper to invoke section 186.22(b)(4), the court cannot both invoke that alternative sentencing scheme and impose the firearm enhancement under section 12022.53(e) on a principal who did not personally use the firearm. Only one of these enhancements may be imposed.

Section 186.22(b)(4) permits an indeterminate life sentence for criminal gang activity if certain conditions are present. Section 12022.53(e)(1) extends liability for the firearm use of another to a principal who did not personally use or discharge the weapon, but who violated subdivision (b) of section 186.22.

Section 12022.53(e)(1) creates an exception to the personal use requirement of section 12022.53(b) through (d) in a prosecution where findings have been made pursuant to section 186.22. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances.

However, as a consequence of this expanded liability under section 12022.53(e), the Legislature has expressly determined in section 12022.53(e)(2) to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.

Authority:

PEN 186.22(d)

PEN 12022.53(e)(2)

People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282

People v. Brookfield (2009) 47 Cal.4th 583, 593, 595-596 [In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53(j), choose the provision that will result in a greater sentence.]

Ninth Holding:

The availability of increased punishment is a matter of pleading and proof. The information alleged only that a principal personally discharged and used a firearm. Moreover, the prosecution did not request that the jury be instructed regarding personal firearm use or discharge or the firearm enhancement, and the verdict did not call for a jury finding on this point. There was therefore no finding that the defendant personally used or discharged a firearm in the commission of the crime. As a matter of law, the special circumstance finding in a different count applies only to that count and does not provide a finding sufficient to overcome the bar against dual use of the gang finding set forth in section 12022.53(e)(2).

Authority:

PEN 12022.53(j) [For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ….]

People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [Whether a defendant used a firearm in the commission of an enumerated sex offense is for the trier of fact to decide.]

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

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

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

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

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

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

Due process, Duty of counsel, Duty of the court, Effective assistance of counsel, Jurisdiction, Sentencing, Standard of review

Case 001026

Posted on by Gary McCurdy

Error and/or relief

Twenty-one years after his conviction of murder committed when he was 20, the defendant filed a motion for a hearing under Franklin. The court (Judge A) appointed counsel and set a hearing date to determine whether the defendant was entitled to a full evidence preservation hearing. The defendant’s attorney ultimately filed a motion to be relieved as counsel, requesting that the matter be taken off the calendar, stating that the defendant was not entitled to a Franklin hearing under Hardin. There was no indication that counsel had discussed this with the defendant. The defendant was not present. The court (Judge B) relieved counsel and took the matter off calendar.

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond.

To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden (1970) 2 Cal.3d 118

The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

First Holding:

Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the controlling offense, the offender is eligible for parole. The hearing must provide for a meaningful opportunity to obtain release, and includes an assessment of the offender’s growth and maturity that takes into consideration the diminished culpability of youth as compared to that of adults and the hallmark features of youth.

Given these factors, the California Supreme Court held in Franklin that when a juvenile offender receives an indeterminate life sentence, the offender must be given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.

Authority:

PEN 3051

People v. Williams (2024) 17 Cal.5th 99, 113

People v. Medrano (2019) 40 Cal.App.5th 961, 967

People v. Franklin (2016) 63 Cal.4th 261, 269

Second Holding:

In Cook, the California Supreme Court extended the availability of a Franklin hearing to a juvenile offender whose conviction and sentence have become final. Specifically, it held that an offender entitled to a youth offender parole hearing may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final. To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01.

Authority:

PEN 1203.01

People v. Ngo (2023) 89 Cal.App.5th 116, 127

In re Cook (2019) 7 Cal.5th 439, 451

People v. Howard (2021) 74 Cal.App.5th 141, 150

Third Holding:

The proper avenue to request a Franklin proceeding is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and Cook. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce.

There are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Fourth Holding:

A legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a Franklin proceeding is warranted. The trial court may also exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.

The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is appropriate, or if other types of evidentiary submissions will suffice. After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely to produce fruitful evidence.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 152

In re Cook (2019) 7 Cal.5th 439, 149

Fifth Holding:

Courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds.

While the California Supreme Court has concluded that section 3051’s exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.

Authority:

People v. Sands (2021) 70 Cal.App.5th 193, 201-202

People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489

People v. Hardin (2024) 15 Cal.5th 834, 864

Sixth Holding:

Generally, a trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion. Here, we have determined the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1119

People v. Cole (2004) 33 Cal.4th 1158, 1190

People v. Wright (2021) 12 Cal.5th 419, 440

Seventh Holding:

Generally, both the United States Constitution and California Constitution guarantee a basic right of due process, and the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

The Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.

Authority:

U.S. Const., 14th Amend.

Cal. Const., art. I, secs. 7, 15

People v. Allen (2008) 44 Cal.4th 843, 869

People v. Ramirez (1979) 25 Cal.3d 260, 265

Eighth Holding:

Generally, having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will. In light of this principle, it is established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.

These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. The legislative purpose of these provisions is to provide certain safeguards to protect the accused.

Authority:

CCP 284

CCP 285

People v. Prince (1968) 268 Cal.App.2d 398, 404, 406

Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558-559 [The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases.]

In re Martinez (1959) 52 Cal.2d 808, 813

People v. Bouchard (1957) 49 Cal.2d 438, 440

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636

Ninth Holding:

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the day after it was filed.

There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion.

Authority:

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636 [Adequacy of notice is an element of due process of law. There is no due process of law in the complete absence of any notice.]

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.]

People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5

Tenth Holding:

It is well established that a trial judge ordinarily may reconsider his or her own prejudgment rulings. There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.

This rule prevents a trial court judge from acting as a one-judge appellate court over another judge. This is true even if the first judge committed legal error in ruling on the matter. The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel.

Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing.

The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge.

Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

Authority:

Calif. Const. art VI, sec. 4

People v. Waldon (2023) 14 Cal.5th 288, 306

In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail]

People v. Goodwillie (2007) 147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge]

Eleventh Holding:

In our view, the error in this case is akin to structural error requiring reversal. Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. However, under the California constitutional harmless-error provision some errors are not susceptible to the ordinary or generally applicable harmless-error analysis.

The kinds of errors that, regardless of the evidence, may result in a miscarriage of justice because they operate to deny a criminal defendant the constitutionally required orderly legal procedure all involve fundamental structural defects in the judicial proceedings.

Most errors are amenable to harmless error review because they can be quantitatively assessed in the context of other evidence presented.

Structural defects, on the other hand, defy analysis by harmless-error standards because they are not simply an error in the trial process, but rather an error affecting the framework within which the trial proceeds. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 553

People v. Lewis (2025) 111 Cal.App.5th 1078, 1111

Due process, Probation Parole PRCS, Sentencing, Standard of review

Case 000992

Posted on by Gary McCurdy

Error and/or relief

We find sufficient evidence to support the conclusion that the defendant violated the conditions of his probation. But in light of the materially inaccurate information that appears to have influenced the defendant’s sentence, we cannot conclude that the superior court exercised informed discretion in imposing his sentence. Remanded for resentencing.

First Holding:

A probation violation is provable by a preponderance of the evidence. We review factual findings in this respect for substantial evidence. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In conducting this inquiry, we give full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 441

People v. Butcher (2016) 247 Cal.App.4th 310, 318

People v. Kurey (2001) 88 Cal.App.4th 840, 848

People v. Mumin (2023) 15 Cal.5th 176, 198

Second Holding:

There may be situations in which a prisoner is entitled to a new sentencing hearing, but only where he shows that: (1) material false information was (2) relied upon by the sentencing judge, and (3) the defendant had no opportunity at the time of sentencing to correct such false information. The probation officer’s report stated that the defendant was found in violation of probation for, among other things, using illicit drugs. In fact, he was not found to have used drugs, and he was not found in violation for using drugs.

The record here reflects that the court relied on that materially false information. When defense counsel attempted to bring it to the court’s attention that the statement was untrue, the court gave no feedback or acknowledgement and simply proceeded with sentencing, in contrast to an earlier correction on a different misunderstanding brought to the court’s attention by the prosecutor, whom the court thanked for bringing the correction to the court’s attention.

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. On this record, which appears to show that the sentencing court believed that the drug-use allegations had been proven, we cannot be confident that the court exercised informed discretion.

Authority:

In re Beal (1975) 46 Cal.App.3d 94, 99–100

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

Third Holding:

A court’s alleged reliance on inaccurate information that appears to have contributed to the defendant’s sentence implicates the federal constitutional guarantee of due process. We evaluate such claims under the standard set forth in Chapman. This stricter standard of review requires reversal unless the error is harmless beyond a reasonable doubt.

Authority:

People v. Eckley (2004) 123 Cal.App.4th 1072, 1080

Chapman v. California (1967) 386 U.S. 18, 24

People v. Schuller (2023) 15 Cal.5th 237, 251

Fourth Holding:

In revoking and terminating probation, trial court is entitled to consider defendant’s performance on probation from the time it was originally granted until it was reinstated for the final time.

Authority:

People v. Black (2009) 176 Cal.App.4th 145, 151