Tag Archives: Duty of the court

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000056

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying his request for resentencing pursuant to Penal Code section 1172.75. We reverse the order because the defendant was entitled to have the court consider his eligibility for relief under Assembly Bill No. 333.

First Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements for prior prison terms.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

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

Second Holding:

Assembly Bill 333 (revising the elements that must be proven to support gang crimes and enhancement allegations) applies to cases where a defendant is resentenced pursuant to section 1172.75, even where there was a negotiated plea agreement.

Authority:

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

Third Holding:

Assembly Bill 333 took effect on January 1, 2022 and is considered ameliorative legislation.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

People v. E.H. (2022) 75 Cal.App.5th 467, 477

Fourth Holding:

The trial court should have considered the applicability of Assembly Bill 333 in the context of the defendant’s resentencing under section 1172.75, whether or not his counsel brought the issue to the attention of the court. By its express language, section 1172.75 itself puts the onus on the trial court to apply any other changes in law that reduce sentences. Assembly Bill 333 is such a law and should have been addressed by the trial court.

Authority:

PEN 1172.75(d)(2

Fifth Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all non-final cases.

Authority:

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

Sixth Holding:

For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

Authority:

People v. Esquivel (2021) 11 Cal.5th 671, 679 [The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability]

Duty of the court, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000037

Posted on by Gary McCurdy

Error and/or relief

The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.

First Holding:

A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Second Holding:

The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one.

Authority:

People v. Hardy (2018) 5 Cal.5th 56, 98

Third Holding:

In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 161 [disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260]

Fourth Holding:

Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Fifth Holding:

Doubts about whether an instruction is warranted should be resolved in favor of the accused.

Authority:

People v. Tufunga (1999) 21 Cal.4th 935, 944

Sixth Holding:

Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record.

Authority:

Reid v. Google (2010) 50 Cal.4th 512, 524, 532

Seventh Holding:

[Gary’s short description of an extensive discussion in the opinion:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s post-arrest exercise of his right to remain silent. Under Doyle, in essence, the prosecution may not comment on the defendant’s exercise of his right to remain silent. Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel.

Authority:

Griffin v. California (1965) 380 U.S. 609

Doyle v. Ohio (1976) 426 U.S. 610

People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings]

People v. Fabert (1982) 127 Cal.App.3d 604, 609

People v. Bryant Smith and Wheeler (2014) 60 Cal.4th 335, 387

Eighth Holding:

The prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. Griffin/Doyle error requires reversal unless the court can conclude it was harmless beyond a reasonable doubt. The appellate court must determine, absent the prosecutor’s reference to defendant’s failure to testify, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Hardy (1992) 2 Cal.4th 86, 153–154

United States v. Hasting (1983) 461 U.S. 499, 507–509

Ninth Holding:

Indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. But the error is prejudicial if the evidence against defendant is less than overwhelming and the improper comment touched a live nerve in the appellant’s defense. It is prejudicial if it served to fill an evidentiary gap in the prosecution’s case. The appellate court must determine whether the comment actually or implicitly invited the jury to infer guilt from silence.

Authority:

People v. Hovey (1988) 44 Cal.3d 543, 572

People v. Galloway (1979) 100 Cal.App.3d 551, 560

People v. Medina (1974) 41 Cal.App.3d 438, 463

People v. Hardy (1992) 2 Cal.4th 86, 159

Tenth Holding:

The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction.

Authority:

People v. Galloway (1979) 100 Cal.App.3d 551, 560

Eleventh Holding:

Griffin prohibits the prosecution from so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Guzman (2000) 80 Cal.App.4th 1282, 1287

People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present]

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000035

Posted on by Gary McCurdy

Error and/or relief

After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.

First Holding:

The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

PEN 1172.75

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]

Second Holding:

Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.

Authority:

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

In re Estrada (1965) 63 Cal.2d 740

People v. Burgos (2024) 16 Cal.5th 1, 28

Third Holding:

If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.

Authority:

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

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

United States v. Tateo (1964) 377 U.S. 463, 465

Fourth Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41

Duty of the court, Jury instructions

Case 000026

Posted on by Gary McCurdy

Error and/or relief

Because of error in instructing the jury with CALCRIM 361, we reverse the convictions and remand for further proceedings. The trial court erred by instructing the jurors with CALCRIM No. 361 because the defendant’s testimony did not represent a complete failure to explain or deny incriminating evidence, nor did he claim a lack of knowledge about something incriminating that he could reasonably be expected to have known.

First Holding:

It is error to instruct on failure to explain or deny where defendant did not fail to explain or deny.

Authority:

People v. Cortez (2016) 63 Cal.4th 101

Second Holding:

We review a claim of instructional error de novo.

Authority:

People v. Parker (2022) 13 Cal.5th 1, 66

People v. Cole (2004) 33 Cal.4th 1158, 1217

Third Holding:

That there was a prior hung jury may be persuasive on the question of the prejudice from the error.

Authority:

People v. Soojian (2010) 190 Cal.App.4th 491, 520

Duty of the court

Case 000025

Posted on by Gary McCurdy

Error and/or relief

The California Department of Corrections and Rehabilitation notified the court that the defendant was entitled to resentencing under Penal Code section 1172.75. He contends the court did not comply with the requirements of section 1385(c), as amended. We agree. Accordingly, we vacate the sentence and remand the matter for further proceedings. There was no discussion at the resentencing hearing in this case of whether dismissal of one or more of the firearm enhancements would endanger public safety.

First Holding:

Penal Code section 1385, subdivision (c) requires the court to give great weight to listed factors.

Authority:

PEN 1385

Second Holding:

“Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385(c)(2)

Duty of the court, Sentencing

Case 000020

Posted on by Gary McCurdy

Error and/or relief

Following a revocation of probation, the defendant was sentenced to state prison. The trial court erred in not obtaining a probation report before sentencing him. The error was prejudicial. We reverse.

First Holding:

Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.

Authority:

PEN 1203(b)(1)

PEN 1203(b)(4)

Second Holding:

The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record.

Authority:

People v. Llamas (1998) 67 Cal.App.4th 35, 40

Third Holding:

Prejudice is measured under Watson.

Authority:

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

People v. Dobbins (2005) 127 Cal.App.4th 176

Fourth Holding:

A stipulation to waive referral to probation must appear in the minutes

Authority:

PEN 1203(b)(4)

Effective assistance of counsel, Sentencing

Case 000006

Posted on by Gary McCurdy

Error and/or relief:

The trial court did not actually dismiss a prior conviction it had agreed to dismiss under the bargain. The court modified the judgment by dismissing the prior conviction in keeping with the bargain. (It does not appear that the defendant was sentenced to time on the prior; simply the court forgot to dismiss it on sentencing.)

First Holding:

The appellate court reviews the record as it existed at time of the lower court’s ruling.

Authority:

In re Kenneth D. (2024) 16 Cal.5th 1087, 1102 [appellate court reviews record as it existed when lower court ruled]

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance must be demonstrated on appellate record]

Second Holding:

A certificate of probable cause is required to challenge on appeal a no contest plea on the grounds of ineffective assistance of counsel.

Authority:

PEN 1237.5

Rules of Court rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694-695

People v. Richardson (2007) 156 Cal.App.4th 574, 596 [pre-plea ineffective assistance of counsel]

Third Holding:

A claim of ineffective assistance of counsel requires not only a showing of deficient performance but also prejudice–a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceedings would have been different.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688

People v. Patterson (2017) 2 Cal.5th 885, 900

Fourth Holding:

Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, the court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1051

Fifth Holding:

Senate Bill No. 567 does not apply where defendant stipulated to upper term [this issue may still be pending in the Supreme Court].

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 ]Although Senate Bill No. 567’s amendments to section 1170 apply to this case, defendant cannot benefit from them because he stipulated to the upper term]

People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154 [disagreeing with Mitchell]

Sixth Holding:

Where not charged with substituted enhancement, the court has no authority to make findings that change the character of the crime or increase sentence.

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [because the defendant was not charged with a substituted enhancement, the trial court was without authority to make findings that change the character of the crime or enhancement so as to increase the sentence]

Seventh Holding:

The court must proceed in keeping with Penal Code section 1192.5 and abide by terms of agreement. Because the trial court may not proceed with regard to the plea in a manner other than as specified in the approved plea (§ 1192.5), the trial court’s silence at the sentencing hearing regarding the dismissal of the strike allegation was not an exercise of judicial discretion, but rather a mistake in creating a record of the judgment.

Authority:

PEN 1192.5

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

Discretion

Case 000003

Posted on by Gary McCurdy

Error and/or relief:

The defendant contends, and the People concede, the case must be remanded for the juvenile court to declare whether his grand theft offense was a misdemeanor or a felony, as required by section 702. We agree and remand with instructions.

Holding:

Juvenile court must declare whether the wobbler grand theft offense was a misdemeanor or a felony. Absent a court’s express declaration or other evidence the juvenile court was aware of, and exercised, its discretion to determine the felony or misdemeanor nature of a wobbler, the matter must be remanded. Section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor.

Authority:

Cal. Rules of Court, rule 5.790(a)(1)

In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1207

In re Kenneth H. (1983) 33 Cal.3d 616, 619

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re F.M. (2023) 14 Cal.5th 701, 712

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

Case 000001

Posted on by Gary McCurdy

Error and/or relief:

On resentencing more than 10 years after conviction, the court must strike the unpaid balance of the $10,000 restitution fine, and it must recalculate the defendant’s credit for time served.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9(d) [Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.]

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37