Tag Archives: Duty of the court

Discretion, Duty of the court

Case: 000174

Posted on by Gary McCurdy

Error and/or relief

After reviewing the petition and the parties’ briefing, we conclude that, at a pretrial hearing in May 2024, the court erred in denying petitioner’s request for a bail review hearing after petitioner showed changed circumstances entitling him to such a review. Therefore, we grant the petition and direct the trial court to hold a new bail review hearing. The court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion.

First Holding:

Under section 1289, after a defendant has been admitted to bail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. Such good cause must be founded on changed circumstances relating to the defendant or the proceedings.

Authority:

PEN 1289

In re Alberto (2002) 102 Cal.App.4th 421, 430

Second Holding:

If the court properly determines nonfinancial conditions are insufficient to protect the state’s interests, but that imposing a money bail condition (alone or in combination with nonfinancial conditions) would adequately protect the public and the victims and ensure the arrestee’s presence in court, the court must consider the individual arrestee’s ability to pay and set bail at a level the arrestee can reasonably afford. If money bail set at a level the defendant can reasonably afford is not sufficient to protect the state’s compelling interests, then the trial court’s only option is to order pretrial detention, assuming the evidentiary record is sufficient to support the findings necessary to justify such an order.

Authority:

In re Brown (2022) 76 Cal.App.5th 296

In re Humphrey (2021) 11 Cal.5th 135

Third Holding:

The appellate court held that circumstances had changed between the former bail hearing and the current because a Court of Appeal published an opinion disagreeing with another appellate court’s conclusion that pretrial detention is the only option if bail is set at a level the defendant can reasonably afford but is not sufficient to protect the state’s compelling interests. In failing to address the conflict between the two opinions, the court abused its discretion. The Kowalczyk court had disagreed with the Brown court’s earlier conclusion that a pretrial detention order is the only option when a bail amount the defendant can afford is insufficient to protect the public and ensure the defendant’s presence in court. The Kowalczyk court concluded that under Humphrey, if a court makes the findings necessary to support a detention, the court may set bail in an amount higher than a defendant can afford.

Authority:

In re Kowalczyk (2022) 85 Cal.App.5th 667

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

Duty of the court, Sentencing

Case: 000167

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the presentence custody credits. He actually served more time than the court calculated. We award him the additional days he is entitled to and direct the trial court to issue a corrected abstract of judgment and minute order to reflect the correct award.

Holding:

Upon conviction, a criminal defendant is entitled to credit for actual time served. This time includes confinement from the date of arrest to the date when the sentence commences. Generally, a term of four days will be deemed to have been served for every two days spent in actual custody. When a defendant is convicted of a violent felony as defined by section 667.5(c), however, work time is accrued at a rate of no more than 15 percent. Any miscalculation of credits results in an unauthorized sentence, and an unauthorized sentence may be corrected upon discovery.

Authority:

PEN 2900.5(a)

PEN 4019(a)(1)

PEN 4019(f)

PEN 2933.1(a)

People v. Taylor (2004) 119 Cal.App.4th 628, 647

Abstracts and Minutes, Amelioration, Duty of the court, Fines and fees, Sentencing

Case: 000165

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the court erred in reimposing an unenforceable restitution order and in failing to update the defendant’s custody credits. Though the court did not orally reimpose the fine or recalculate credit for time served, the amended abstract of judgment reflects the fine and the credits he received at the defendant’s original sentencing.

First Holding:

The restitution fine imposed under section 1202.4(b) Must be vacated because it is over 10 years old.

Authority:

PEN 1465.9(d)

Second Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. The defendant is entitled to an updated abstract that accurately reflects the amount of custody credits earned.

Authority:

PEN 2900.1

Abstracts and Minutes, Jurisdiction, Sentencing

Case: 000147

Posted on by Gary McCurdy

Error and/or relief

The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.

The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.

First Holding:

Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries.

In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge.

Authority:

In re Candelario (1970) 3 Cal.3d 702

Second Holding:

The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony.

Authority:

In re Candelario (1970) 3 Cal.3d 702

People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]

People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]

People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]

People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true]

Third Holding:

Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Howard (1997) 16 Cal.4th 1081, 1089

Fourth Holding:

The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction.

Authority:

People v. Farias (2023) 92 Cal.App.5th 619, 635-636

People v. Codinha (2023) 92 Cal.App.5th 976, 1120 [holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]

People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]

People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]

People v. Singleton (2025) 113 Cal.App.5th 783, 797

Duty of the court, Elements of crime, Jury instructions, Standard of review

Case: 000144

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

First Holding:

The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 29, 33, fn. 6

Second Holding:

We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 30

Third Holding:

It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only.

Authority:

PEN 243.4(e)(1)

PEN 242

People v. Shockley (2013) 58 Cal.4th 400, 404

People v. Yonko (1987) 196 Cal.App.3d 1005, 1010

Fourth Holding:

Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him.

Authority:

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

People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201

People v. Schuller (2023) 15 Cal.5th 237, 260

Fifth Holding:

The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 681

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

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Third Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Duty of the court, Probation Parole PRCS, Standard of review

Case: 000128

Posted on by Gary McCurdy

Error and/or relief

We find that the nature of the required program is impermissibly vague in the condition of probation that the defendant “enter into and continue such education, psychological, psychiatric, drug, alcohol, or other rehabilitation program as directed by the probation officer or as specifically ordered as a term of probation, and shall not leave or terminate such programs without the permission of the probation officer.”

First Holding:

Applying de novo review, we address each challenge to a probation condition separately.

Authority:

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

Second Holding:

It is the court’s duty to determine the nature of the requirements imposed on the probationer. Although a probation condition need not be set forth with mathematical certainty, the language used must have reasonable specificity. Here, such specificity is lacking. The program choices for the probation officer are open-ended, ranging from education to psychological and psychiatric to drug, alcohol, or other rehabilitation. This is too vague to pass muster, and we cannot interpret it more narrowly in light of other probation conditions, the probation report, or the trial court’s commentary. Without meaningful guidance from the record, the open-ended program condition cannot be saved by permitting the probation department to provide the necessary specificity.

Authority:

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

Sheena K. (2007) 40 Cal.4th 875, 890

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Amelioration, Duty of the court, Sentencing

Case: 000125

Posted on by Gary McCurdy

Error and/or relief

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility. We therefore remand the matter for a new evidentiary hearing under section 1172.6(d). At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.

First Holding:

The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by SB 1437.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Second Holding:

The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt. A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 294-296

People v. Harden (2022) 81 Cal.App.5th 45, 51

Amelioration, Duty of the court, Sentencing

Case: 000122

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed. The People concede both of these points. We vacate the defendant’s sentence, and remand for a full resentencing with directions to recalculate the credit for time served.

First Holding:

Even where the defendant is serving a sentence under the Three Strikes law, on recall the trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety.

Authority:

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

Second Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000121

Posted on by Gary McCurdy

Error and/or relief

The court failed to recalculate the actual time defendant had served pursuant to the sentence for which he was being resentenced and reflect those credits in the amended abstract of judgment.

First Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody.

Authority:

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Second Holding:

Generally, a clerical error is one inadvertently made. Clerical error can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705