Tag Archives: Duty of the court

Duty of the court, Fines and fees

Case 000939

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing for the trial court to state the statutory basis for the imposed fines and fees.

First Holding:

The matter must be remanded for the trial court to orally pronounce the applicable statutory citations for each imposed fine and fee in the case and for the corresponding probation minute order to be amended accordingly. The absence of statutory citations for the $165 “restitution fine” and the $40 “[c]ourt [s]ecurity [f]ee” and the absence of a statutory citation for the $35 “infraction fee” in the minute order must be corrected.

Authority:

People v. High (2004) 119 Cal.App.4th 1192

Second Holding:

Although a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed. A trial court’s failure to specify the amount and statutory basis for each fine, fee, and penalty assessment imposed is legal error. Such error may be reviewed on appeal even in the absence of an objection.

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

People v. Eddards (2008) 162 Cal.App.4th 712, 715

People v. Hartley (2016) 248 Cal.App.4th 620, 637

Third Holding:

A court may adequately pronounce judgment by imposing a specific fine and generally referring to the applicable penalty assessments. However, the responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment or the probation minute order. This includes providing a statutory basis of each fine or fee imposed.

Authority:

People v. Voit (2011) 200 Cal.App.4th 1353, 1373

People v. Sharret (2011) 191 Cal.App.4th 859, 864

People v. Eddards (2008) 162 Cal.App.4th 712, 715, 718

Fourth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75(d)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Duty of the court, Jury trial

Case 000925

Posted on by Gary McCurdy

Error and/or relief

We agree that the trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecution’s use of peremptory challenges.

First Holding:

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Discrimination in violation of section 231.7 need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s perceived or actual race and] gender, as well as five other protected characteristics.

Once an objection to a peremptory challenge is made, the party challenging the prospective juror must state the reasons the peremptory challenge has been exercised.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Second Holding:

We review de novo a trial court’s determination that a peremptory challenge was valid, and the trial court’s express factual findings for substantial evidence. We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. If the ruling on an objection was erroneous, the statute precludes a finding of harmless error. Instead, the sole remedy is reversal.

Authority:

CCP 231.7(j) [error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial]

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Third Holding:

(Gary note: The opinion then discussed the specific reasons the juror was excused by the prosecution and the failure of the court to follow the required procedure where the reason given is one that is expressly presumed in section 231.7 to be an invalid reason. I have omitted that discussion, since it cannot provide any value as an unpublished opinion.)

Neither the showing required of the prosecution under section 231.7(e) nor the determination by the trial court required under subdivision (f) was made in this case. To the extent that the record is silent, we may not speculate about or consider other possible reasons for the challenge by the prosecution, as we are permitted to consider only the reasons given.

Moreover, we may not impute to the trial court any findings that the trial court did not expressly state on the record. Simply put, the statute does not permit a reviewing court to find compliance when no compliance is apparent in the record.

In any event, even without the statutory prohibition, there would be no reason to impute findings to the trial court in this case because the trial court expressly found, on the record, that there were no presumptively invalid reasons for exclusion of the prospective juror.

Authority:

CCP 231.7(j)

People v. Garcia (2025) 114 Cal.App.5th 1154, 1164

People v. Alston (2026) 118 Cal.App.5th 575, 587

Fourth Holding:

If another party or the trial court objects to the use of a peremptory challenge, then the party that exercised the peremptory challenge must state the reasons for the challenge; there is no requirement that the objecting party first establish a prima facie case of discrimination.

Instead, it is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection, and this includes determining whether the proffered reason is presumptively invalid.

Authority:

People v. SanMiguel (Jul. 30, 2026, S287786) __ Cal.5th __

People v. Aguilar (2026) 118 Cal.App.5th 1, 11

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1141 [objecting party’s initial objection preserves the right to challenge the court’s failure to consider the presumptively invalid categories]

Fifth Holding:

(Gary note: This is not really a holding in the opinion. The court discusses the specific reasons relied on by the prosecution and found them in presumptive violation of Code of Civil Procedure section 231.7(e). I thought it might be useful and enlightened to include all of the section 231.7(e) statutorily presumptively invalid reasons here.)

Authority:

CCP 231.7(e):

A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review

Case 000906

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under section 1172.75, the trial court struck the one-year prior but otherwise declined to reduce the defendant’s sentence. The trial court did not apply the correct standard of law and therefore abused its discretion. We reverse the order.

First Holding:

SB 136 (2019–2020 Reg. Sess. amended section 667.5b) to allow courts to impose one-year prior prison term enhancements only for specified sexually violent offenses. Thereafter, SB 483 (2021–2022 Reg. Sess.) made the amendment retroactive to final cases and added what is now section 1172.75.

Section 1172.75 sets forth the process for recalling sentences and resentencing. If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 667.5(b)

PEN 1172.75

Second Holding:

Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

At a hearing under section 1172.75, the resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75(d)(2)

Third Holding:

As relevant here, SB 81 (2021–2022) effected a change in law by adding subdivision (c) to section 1385. That subdivision provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present.

Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘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)

Fourth Holding:

Section 1385(c) sets forth several mitigating circumstances for consideration. Two of them are relevant in this case. Under section 1385(c), absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in furtherance of justice.

This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

PEN 1385(c)

People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038

Fifth Holding:

We review a trial court’s sentencing decision under section 1172.75 for abuse of discretion and ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

We similarly review a trial court’s decision not to dismiss a sentencing enhancement 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.

Authority:

People v. Garcia (2024) 101 Cal.App.5th 848, 857

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

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

Sixth Holding:

We reject the Attorney General’s argument that the defendant forfeited this contention because he failed to raise it below. The defendant did not have to ask the trial court to apply the correct standard of law to preserve a claim on appeal that the trial court applied an incorrect one. Rather, a defendant is entitled to sentencing decisions based on the sentencing court’s informed discretion, including one informed by the correct law. In any event, we may review any question of law involved in any ruling or order that affects the defendant’s substantial rights, even if the defendant did not object below.

(Gary note: The court proceeded to analyze the trial court’s treatment or lack thereof of facts specific to this defendant that demonstrated the abuse of discretion.)

Authority:

PEN 1259

People v. Salazar (2023) 15 Cal.5th 416, 424

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

Case 000905

Posted on by Gary McCurdy

Error and/or relief

The trial court lacked potential information relevant to exercising its discretion at the resentencing hearing under section 1172.75. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

On the date ultimately set for the hearing, the defendant’s attorney informed the court that he did not know the hearing on the petition was going to be held, and he needed a continuance to prepare for presenting mitigating information. The court denied the motion for continuance and held the hearing, striking the now-invalid prior prison term enhancement but otherwise making no changes to the sentence.

This was error. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Thus, in a case such as this, the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

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

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

Second Holding:

Section 1172.75 provides that when a court resentences a defendant under the statute, it shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75(d)(2), (d)(3)

Third Holding:

Section 1385(a) grants the superior court discretion, in furtherance of justice, to order an action to be dismissed. This includes the authority to strike a sentence enhancement. To apply this discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of several mitigating circumstances are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385

People v. Barboza (2021) 68 Cal.App.5th 955, 965

Fourth Holding:

We review a trial court’s denial of a continuance for abuse of discretion. One factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing regarding childhood trauma and mental capacity.

This was apparently the defendant’s first request for a continuance, and the burden on the court of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience. 

(Gary note: The appellate court then outlined several factors specific to this defendant that the trial court failed to give any consideration to, leading to the appellate court’s decision to remand. The details are not useful for this summary.)

Because the court lacked evidence of all relevant mitigating factors identified in section 1385, we must remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even had it considered the mitigating factors.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fifth Holding:

Although a court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary, when it expressly states the basis for its decision and declines to consider other factors, we will not infer it weighed the other factors. Because the court expressly considered only the circumstances of the defendant’s crime, we cannot infer that it also considered mitigating circumstances.

Authority:

People v. Myers (1999) 69 Cal.App.4th 305, 310

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

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

Duty of the court, Fines and fees, Sentencing

Case 000894

Posted on by Gary McCurdy

Error and/or relief

The record discloses that the trial court imposed an unauthorized sentence by imposing a fine without specifying the basis of the penalty assessments.

(Gary note: This was not a victory in the purest sense, as it changed nothing for the defendant, whom the trial court found had the ability to pay. I have included this summary for its authority that the court must specify the breakdown of the fine with its various penalty assessments. In the case, the appellate court reversed the imposition of the fine and directed the trial court to reimpose it but specifying the authority for the various assessments that turned the $300 fine into $1170.)

First Holding:

Section 290.3 provides in pertinent part, that every person who is convicted of any offense specified in section 290(c) shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of $300 upon the first conviction or a fine of $500 upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.

Authority:

PEN 290.3(a)

Second Holding:

The imposition of a section 290.3 fine in the total amount of $1,170 or the imposition of a $300 base fine plus $870 in penalty assessments without citing the statutory basis for the penalty assessments are both unauthorized sentences. An unauthorized sentence may be corrected at any time even if there was no objection in the trial court. Such an unauthorized sentence may be corrected even when raised for the first time on appeal.

Authority:

People v. Valenzuela, (2009) 172 Cal.App.4th 1246, 1248-1249 [The fine imposed in this case constituted an unauthorized sentence]

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

People v. Smith (2001) 24 Cal.4th 849, 854

Third Holding:

The trial court imposed the sex offender fine in the amount of $1,170 as set forth in the probation report. We construe the court’s statement to mean that it intended to impose the section 290.3 fine and the corresponding penalty assessments, which are listed in the probation report, but erroneously failed to list each penalty assessment and their respective corresponding amounts at sentencing.

We shall therefore modify the judgment to include a $300 section 290.3 fine and penalty assessments in the following amounts: a $60.00 Court Surcharge (sec. 1465.7), a $150.00 State Court Facilities Construction Fund Fee (Gov. Code, sec. 70372(a)), a $300.00 State Penalty Assessment (sec. 1464), a $210.00 County Penalty Assessment (Gov. Code, sec. 76000), a $30.00 DNA Identification Fund Fee (Gov. Code, sec. 76104.6), and a $120.00 DNA Identification Fund fee (Gov. Code, sec. 76104.7).

Authority:

PEN 290.3

PEN 1465.7

GOV 70372(a)

PEN 1464

GOV 76000

GOV 76104.6

GOV 76104.7

Appellate Principles, Duty of the court, Sentencing

Case 000893

Posted on by Gary McCurdy

Error and/or relief

It was error for the judge to stay the section 12022.1 enhancement under section 1385(b)(1). An enhancement may be stricken or imposed, unless there is some other legal reason it must be stayed rather than imposed.

First Holding:

Ordinarily, an enhancement must be either imposed or stricken in furtherance of justice under section 1385. Section 1385(b)(1) adds that, if the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.

There are exceptions to this rule that permit courts to stay the punishment imposed for an enhancement, for example section 654 and rule 4.447 of the California Rules of Court. These exceptions are not discretionary; they are limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.

Authority:

PEN 1385(b)(1)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

According to the transcript of the sentencing hearing, the trial court here relied on section 1385(b)(1) when it purported to stay the section 12022.1 enhancement. It does not appear that any overriding statute prohibits imposition of the enhancement in this case.

As a result, the court lacked the authority to stay the enhancement. In general, we presume a trial court knew and followed the law. Based on the statutory provision cited by the court, we conclude the court intended to strike the punishment for the enhancement rather than imposing an unauthorized stayed sentence.

The minute order from the sentencing hearing supports this conclusion by indicating that the court struck the enhancement, though it suggests the court did so at a prior hearing, which is not supported by the transcript. We will modify the judgment accordingly.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Amelioration, Duty of the court, Sentencing

Case 000892

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant a full resentencing at the hearing held under section 1172.75. At the initial hearing, the defendant agreed that the court could proceed with striking the now-invalid prior prison term enhancement with the judge’s assurance that the defendant could seek a full resentencing at a later date.

First Holding:

When the defendant did request the full resentencing, the trial court denied it based on the Tang decision, which held that a defendant was not eligible for resentencing because his prior conviction had previously been stricken and he was not serving a sentence under which that prior conviction was a component.

But Tang was not applicable. In Tang, the prior conviction enhancement was stricken on direct appeal a full decade before Tang sought resentencing under section 1172.75.

Here, the enhancement was stricken as part of a single proceeding under section 1172.5 held on two dates. Moreover, the defendant only consented to bifurcating that one proceeding based on the court’s assurance it would later conduct a full resentencing hearing, and it was improper for the court to later render that promise meaningless.

Authority:

PEN 1172.75

People v. Tang (2025) 109 Cal.App.5th 1003

(Gary note: the court did not expressly cite any authority for the recognition that a defendant eligible for relief under section 1172.75 is entitled to a full resentencing. The courts have interpreted section 1172.75 as, by its plain terms, requiring a full resentencing, not merely that the trial court strike the newly invalid enhancements. I have set forth two cases as a convenience for the reader that support that principle, though Buycks was addressing a different statute.)

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing `a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Duty of the court, Jury trial, Standard of review

Case 000874

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecutor’s exercise of a peremptory challenge during voir dire.

First Holding:

Section 231.7(a), prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute specifies the process that must be followed if a party or the trial court objects to the use of a peremptory challenge. Two different subdivisions of the statute provide lists of presumptively invalid reasons for exercising a peremptory challenge and specify the processes that must be followed if such reasons are asserted in a section 231.7 scenario.

Relevant here, subdivision (g) lists three categories of presumptively invalid reasons that have historically been associated with improper discrimination in jury selection. Those reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or those of counsel for the objecting party.

Authority:

CCP 231.7

Second Holding:

On appeal, we review the overruling of a section 231.7 objection de novo, with the trial court’s express factual findings reviewed for substantial evidence. We may only consider those reasons given by the party exercising the peremptory challenge and those factual findings expressly made by the trial court. If we conclude the trial court erred by overruling an objection, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Third Holding:

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.

But that rule is not automatic. Further, courts have recognized there are circumstances in which it should not apply. Among those circumstances are when its application would be incompatible with the fundamental purposes of a statutory scheme.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 589–590

In re L.C. (2023) 90 Cal.App.5th 728, 738,

In re S.B. (2004) 32 Cal.4th 1287, 1293

In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]

In re Frank R. (2011) 192 Cal.App.4th 532, 539 [conflict with due process]

Fourth Holding:

As explained in Espiritu, the Legislature enacted section 231.7 in response to shortcomings of the inquiry under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, overruled in part in Johnson v. California (2005) 545 U.S. 162.

Whereas Batson/Wheeler targets purposeful discrimination only, section 231.7 aims to eliminate purposeful and unconscious bias. And, whereas Batson/Wheeler employs a largely deferential burden shifting evaluation which places the ultimate burden of persuasion on the objecting party, section 231.7 sets forth a comprehensive process that expressly imposes virtually all burdens on the party exercising the peremptory challenge or the trial court.

Authority:

CCP 231.7

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1139

People v. Lenix (2008) 44 Cal.4th 602

People v. Lomax (2010) 49 Cal.4th 530, 569

Fifth Holding:

Although not expressly stated in the statute, it logically flows from the legislative purpose and established scheme that the first required step in such an evaluation is to consider whether any of the reasons fall into a presumptively invalid category listed in subdivision (e) or subdivision (g).

Stated differently, the presumptively invalid categories embody circumstances in which the Legislature has declared the court must presume an objectively reasonable person would view membership or perceived membership in a listed group as a factor in the use of the peremptory challenge, unless the party exercising the challenge overcomes the presumption in the statutorily specified manner.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 893 [after party objects under sec. 237.1, it is trial court’s responsibility to apply correct procedure to decide whether to sustain objection]

Sixth Holding:

(Gary note: The opinion then sets forth the specifics of the questions and answers and exercise of the peremptory challenge. Those details are unnecessary in this type of summary that focuses on the principles relied on rather than specific application, so I have chosen to omit them. Having found error in overruling the defense objection to the exercise, the court reversed and remanded for a new trial. Erroneously overruled objections under section 231.7 are not subject to harmless error analysis.)

Authority:

People v. Aguilar (2026) 118 Cal.App.5th 1, 10

Discretion, Duty of counsel, Duty of the court, Juveniles

Case 000866

Posted on by Gary McCurdy

Error and/or relief

The minor received insufficient notice of his eligibility for a deferred entry of judgment (DEJ), and the trial court failed to conduct a DEJ suitability hearing. We conditionally reverse the juvenile court’s jurisdictional and dispositional orders and remand the matter to the juvenile court for further proceedings.

First Holding:

Welfare and Institutions Code section 790(a) provides that whenever a case is before the juvenile court for a determination of whether a minor is a person described in section 602 because of the commission of a felony offense, the minor may be eligible for DEJ when the following conditions are met: (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. (3) The minor has not previously been committed to the custody of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (4) The minor’s record does not indicate that probation has ever been revoked without being completed. (5) The minor is at least 14 years of age at the time of the hearing. (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. (7) The offense charged is not [one of several listed sexual offenses].

Authority:

WIC 790(a)

Second Holding:

Under section 790(b), the prosecuting attorney must review the file to determine whether or not paragraphs (1) to (7), inclusive, of subdivision (a) apply.

If the minor is found eligible for deferred entry of judgment, the prosecuting attorney must file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and must make this information available to the minor and their attorney.

Authority:

WIC 790(b)

In re C.W. (2012) 208 Cal.App.4th 654, 659 (C.W.)

Third Holding:

The Rules of Court require the court to notify the minor’s custodial parent, guardian, or foster parent at least 24 hours before the appearance hearing.

Authority:

Cal. Rules of Court, rule 5.800(c)

In re Trenton D. (2015) 242 Cal.App.4th 1319, 1324 [finding no indication that a proper notice was properly served and noting rule 5.800(c)’s service requirements]

Fourth Holding:

While a juvenile court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make the final determination regarding education, treatment, and rehabilitation.

The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.

Authority:

In re Luis B. (2006) 142 Cal.App.4th 1117, 1123

In re D.L. (2012) 206 Cal.App.4th 1240, 1243–1244

Appellate Principles, Discretion, Duty of the court, Plea bargains, Sentencing

Case 000863

Posted on by Gary McCurdy

Error and/or relief

We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.

First Holding:

After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.

The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.

Authority:

PEN 1385(b)(1)

People v. Haykel (2002) 96 Cal.App.4th 146, 151

People v. Lopez (2004) 119 Cal.App.4th 355, 364-365

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123

People v. Bradley (1998) 64 Cal.App.4th 386, 391

Second Holding:

A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.

The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).

Authority:

PEN 1260

People v. Vieira (2005) 35 Cal.4th 264, 294

People v. Alford (2010) 180 Cal.App.4th 1463, 1473