Tag Archives: Duty of the court

Appellate Principles, Effective assistance of counsel, Pleading, Sentencing

Case 000795

Posted on by Gary McCurdy

Error and/or relief

The court erroneously imposed a 10-year upper term firearm enhancement, although the jury was not asked to consider, and did not render a finding, that defendant personally used a firearm in the commission of the murder. The 10-year firearm enhancement is unauthorized. We therefore strike the enhancement and affirm the judgment as modified.

Holding:

The personal firearm use allegation under section 12022.5(a), was pled only as to the codefendant. No firearm allegation was alleged as to defendant under any statute. Nevertheless, at defendant’s sentencing hearing, the trial court imposed a 10-year upper term enhancement for personal firearm use under section 12022.5. No objection was raised in the trial court to the imposition of this enhancement, and no contention was raised on appeal regarding the sentencing error. The 10-year firearm use enhancement is unauthorized and must be stricken.

(Gary note:  There was no discussion of effective assistance of counsel in the opinion.  It relied solely on the unauthorized nature of the sentence.  But I have “tagged” this as ineffective assistance of counsel.  How could counsel have let his or her client receive a 10-year enhancement that was not charged against the client?  Yes, it was against the co-defendant, but I’m not sure it takes a Monday morning quarterback to suggest that one’s client should not be sentenced on a different defendant’s charges.  If the co-defendant had been charged with murder, and my client with only burglary, I think I’d notice if my client was sentenced to a life term for my co-defendant’s murder conviction.  Just sayin’, I guess.)

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

Duty of the court, Sentencing, Standard of review

Case 000794

Posted on by Gary McCurdy

Error and/or relief

The court erred at the recall of sentence hearing under section 1172.6 when it refused to review the transcript of the district attorney’s summation at the original trial. We reverse the trial court’s order and remand the matter for the court to consider the record of conviction in its entirety.

First Holding:

Effective January 1, 2019, SB 1437 added what is now section 1172.6 and made other amendments to the Penal Code that eliminated the natural and probable consequences doctrine and limited the scope of liability that could be imposed under the felony murder theory.

The purpose of this legislation was to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Outside of the felony-murder rule, a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448

Second Holding:

Effective January 1, 2022, SB 775 further limited the theories under which a defendant could be prosecuted to better reflect this purpose.

As a result, section 1172.6(a) now provides that a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder;

(3) The petitioner could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Third Holding:

The court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. The parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under subdivision (c).

Authority:

PEN 1172.6(c)

People v. Lewis (2021) 11 Cal.5th 952, 972

Fourth Holding:

The prima facie inquiry under subdivision (c) is limited. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

The prima facie bar was intentionally and correctly set very low. At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

If the petitioner makes a prima facie showing of eligibility, the trial court must issue an order to show cause and hold an evidentiary hearing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Sixth Holding:

The trial court erred by refusing to consider the prosecutor’s closing argument when determining whether the defendant made a prima facie showing of eligibility for relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction may include closing arguments of counsel]

People v. Harden (2022) 81 Cal.App.5th 45, 55 [considering counsel’s arguments when determining prima facie eligibility under section 1172.6]

Seventh Holding:

In promulgating SB 775, the Legislature specifically provided relief to persons who may have been convicted under another theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Where the petitioner argues that he or she was convicted under another theory of imputed malice, the absence of natural and probable consequences and felony-murder instructions to the jury alone may not be sufficient to preclude eligibility as a matter of law.

As here, where the petitioner has identified specific portions of the record of conviction in support of the claimed theory of imputed malice, the trial court should consider that record material in the first instance to make its prima facie determination.

We reverse the trial court’s order denying the defendant’s petition for resentencing and remand the cause to the trial court to consider the record of conviction in its entirety.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 661 [legislature intended SB 1437 to reach beyond felony murder and natural and probable consequences cases]

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

Case 000779

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or violent felony for purposes of the strike prior and prior serious felony enhancements and remand the matter to the trial court for any retrial of this finding.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: If a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7(c) defines “serious felony” to include, among other things, “any felony offense, which would also constitute a felony violation of section 186.22.”

Authority:

PEN 1192.7(c)(28)

Second Holding:

Assembly Bill 333 amended section 186.22. Effective January 1, 2022, this legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

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

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

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

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

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

Third Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1065, 1067

Fourth Holding:

In Fletcher, our Supreme Court held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies 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.

Accordingly, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22. The matter must be remanded to the trial court for any retrial of these allegations, and if required, any resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Duty of the court, Sentencing

Case 000777

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have recalculated his credit for time served.

Holding:

Upon resentencing that results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment.

Authority:

PEN 2900.1

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Amelioration, Duty of the court, Sentencing

Case 000776

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court failed to pronounce sentence on two of the counts. This was error. Also, the court must recalculate the defendant’s credit for time served.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Once the Department of Corrections and Rehabilitation identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant.

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A recall effectively vacates the defendant’s original sentence and commitment.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 399, 402

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]

People v. Rogers (2025) 108 Cal.App.5th 340, 360

Second Holding:

The resentencing under section 1172.75 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In resentencing, the court 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

Authority:

PEN 1172.75(d)(1)

Third Holding:

In a criminal case, judgment is rendered when the trial court orally pronounces sentence. If a sentence of imprisonment is to be imposed the sentencing judge must pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

At a sentencing hearing, the court must orally pronounce the sentence on the record. Since the court recalled defendant’s sentence under section 1172.75, it effectively vacated his original sentence and thus should have orally pronounced all components of the sentence on the record at the resentencing hearing.

Authority:

Rules of Court, rule 4.433(c)(5)

People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9

People v. Mesa (1975) 14 Cal.3d 466, 471 [Rendition of judgment is an oral pronouncement]

Fourth Holding:

There was also an error in the sentencing, in that the sentence on one count was a life term, but the count was not a serious felony and should have been sentenced as a determinate term.

It is well established that when the trial court pronounces a sentence that is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Benton (1979) 100 Cal.App.3d 92, 102

Fifth Holding:

The trial court should recalculate defendant’s custody credits on remand.

Authority:

PEN 2900.5(d)

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.]

Duty of the court

Case 000765

Posted on by Gary McCurdy

Error and/or relief

This was a grant of a petition for habeas corpus to compel the trial court to set bail in this murder case. The appellate court granted the petition and directed the court to hold a new bail hearing consistent with the opinion.

First Holding:

Our state constitution entitles arrestees to bail unless one of a limited number of exceptions applies. The exception at issue here provides that a trial judge may deny bail when a defendant is charged with a felony offense involving acts of violence on another person when the facts are evident or the presumption great and the judge finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.

Authority:

Cal. Const., art. I, sec. 12

Yedinak v. Superior Court (2023) 92 Cal.App.5th 876, 884

In re Kowalczyk (2026) 19 Cal.5th 593, 630 [a court may order the pretrial detention of a noncapital defendant only in the circumstances specified in subdivisions (b) and (c) of section 12 of article I of the California Constitution]

Second Holding:

California Supreme Court caselaw imposed two more requirements for the so-called violent felony exception to apply. A trial judge must satisfy four legal requirements before issuing a pretrial detention order under section 12(b).

The judge must: (1) find there is sufficient evidence to sustain a guilty verdict against the arrestee on a qualifying felony; (2) find by clear and convincing evidence a substantial likelihood that the arrestee’s release would result in great bodily harm to others; (3) find by clear and convincing evidence that no less restrictive condition than detention can reasonably protect the interests in public or victim safety, and the arrestee’s appearance in court; and (4) set forth the reasons for their decision on the record and include them in the minute order.

Per our order to show cause, only the third and fourth Yedinak factors are at issue here. We hold the trial court did not adequately satisfy either factor.

Authority:

Yedinak v. Superior Court (2023) 92 Cal.App.5th 876, 886

In re White (2020) 9 Cal.5th 455

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

Third Holding:

A court entering a pretrial detention order must set forth the reasons for its decision on the record and to include them in the court’s minutes, and the reasons supporting a denial of bail cannot be implied.”

Authority:

In re Harris (2021) 71 Cal.App.5th 1085, 1105, reversed in part on other grounds in In re Harris (2024) 16 Cal.5th 292

AppellateAdvisor Updates, Duty of the court, Probation Parole PRCS, Sentencing

Case 000762

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied the defendant’s motion to dismiss his conviction under section 1203.4 following his fulfillment of conditions of probation. The trial court concluded that the defendant was not eligible for relief as long as he had to register as a sex offender. The trial court denied the defendant’s petition for an erroneous reason without determining whether he fulfilled the conditions of probation for the entire probation period. Therefore, the order denying the petition is reversed, and the trial court is directed to make that determination.

First Holding:

When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, the defendant is entitled to have his conviction set aside and the case dismissed.

Authority:

PEN 1203.4(a)(1)

Second Holding:

This statutory provision is clear. If the defendant fulfilled the conditions of probation for the entire period of probation, the trial court shall allow the defendant to withdraw his guilty plea and shall thereupon dismiss the accusations or information. Dismissal in this circumstance is mandatory.

Authority:

People v. Daffeh (2024) 104 Cal.App.5th 790, 796

People v. Tran (2015) 242 Cal.App.4th 877, 892, fn. 6 [under section 1203.4, if the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief]

Third Holding:

A person who has suffered a conviction specified in section 290 is required to register as a sex offender, notwithstanding dismissal of such conviction pursuant to 1203.4. But the duty to register as a sex offender does not make the person ineligible for relief under section 1203.4

Authority:

Doe v. Brown (2009) 177 Cal.App.4th 408, 423

People v. Chatman (2018) 4 Cal.5th 277, 287

People v. Hamdon (2014) 225 Cal.App.4th 1065, 1071, fn. 3 [Section 290.007 expressly precludes relief from the sex offender registration requirement for persons whose convictions are dismissed pursuant to section 1203.4]

People v. Guillen (2013) 218 Cal.App.4th 975, 996 [same]

Fourth Holding:

If the defendant has not fulfilled the conditions of probation for the entire period of probation or been discharged prior to the termination of the probation period, the court still has discretion to grant relief in the interests of justice.

Authority:

People v. Guillen (2013) 218 Cal.App.4th 975, 991

Appellate Principles, Duty of the court, Sentencing

Case 000748

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a two-year sentence on each of two felony counts, stayed one of those sentences under section 654, and pronounced sentences of concurrent time on the three misdemeanor counts. The failed, however, to pronounce the sentence for those three misdemeanors, and the case is remanded for it to do so.

First Holding:

Section 12 requires courts to pass sentence on the defendant and impose the punishment prescribed upon conviction for a crime. And the trial court generally must include all aspects of a judgment in its oral pronouncement of judgment.

Authority:

PEN 12

In re Sandel (1966) 64 Cal.2d 412, 415

People v. Leon (2020) 8 Cal.5th 831, 855

Second Holding:

Therefore, a trial court must pronounce a sentence on every felony and misdemeanor conviction. The failure to do so results in an unauthorized sentence. When the mistake in failing to pronounce sentence on a count is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

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

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

Discretion, Due process, Duty of the court, Standard of review

Case 000745

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion and violated his right to due process when it denied a continuance to investigate and file a motion for a new trial after granting his motion to represent himself.

First Holding:

We review a trial court’s decision granting or denying a continuance for an abuse of discretion. Absent a showing of an abuse of discretion and prejudice, we will not reverse the trial court’s decision.

Authority:

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

People v. Doolin (2009) 45 Cal.4th 390, 450

Second Holding:

A trial court’s decision that is deemed an abuse of discretion has been described as a decision that exceeds the bounds of reason or as one that is arbitrary, capricious, patently absurd, or even whimsical. A court’s discretion, however, is not a whimsical, uncontrolled power. T

he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of the action. The court’s proper exercise of its discretion, therefore, requires knowledge and consideration of the legal principles essential to an informed, intelligent and just decision.

Where a ruling transgresses the confines of the applicable principles of law defining the scope of discretion, the court abuses its discretion.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 609

People v. Jacobs (2007) 156 Cal.App.4th 728, 737

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

People v. Lara (2001) 86 Cal.App.4th 139, 165

Third Holding:

In deciding whether to grant a continuance, trial courts may not exercise their discretion in such a manner as to deprive the defendant or defendant’s counsel of a reasonable opportunity to prepare.

That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel. The opportunity to prepare is no less fundamental when a defendant elects to proceed pro se.

While it is true that a defendant, who chooses to conduct his defense in pro. per. does so subject to the disabilities normally attendant upon the status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.

The denial of a continuance after a trial court grants a defendant’s request for self-representation could deprive a defendant of the opportunity to prepare a defense. To deny him that opportunity would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.

Therefore, when a trial court grants a defendant’s request to proceed pro se, it has been held an abuse of discretion and a denial of due process to deny a request for a reasonable continuance to allow the in propria persona defendant to prepare a defense.

Authority:

People v. Sakarias (2000) 22 Cal.4th 596, 646

People v. Maddox (1967) 67 Cal.2d 647, 652, 653-655

People v. Cruz (1978) 83 Cal.App.3d 308, 324

People v. Wilkins (1990) 225 Cal.App.3d 299, 304-305

People v. Hill (1983) 148 Cal.App.3d 744, 756, 757

Fourth Holding:

Courts have made an exception only where the record demonstrates the trial court expressly conditioned the granting of an untimely Faretta motion on the defendant’s express waiver of a continuance.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Jenkins (2000) 22 Cal.4th 900, 1038 [court warned the defendant that a request for a continuance would be a basis for denying Faretta motion, and the defendant accepted pro se status on the understanding that no additional time would be granted]

People v. Clark (1992) 3 Cal.4th 41, 110 [court granted Faretta motion only after the defendant “expressly represented he was able to proceed without a continuance], overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462

People v. Rudd (1998) 63 Cal.App.4th 620, 626 [Faretta motion granted only after the defendant expressly stated he would be able to proceed without a continuance]

Fifth Holding:

The denial of a continuance may be so arbitrary as to deny due process. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Instead, the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 921

Sixth Holding:

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. Such an abuse of discretion occurs when the court bases its decision on an incorrect legal standard.

Authority:

People v. Iraheta (2014) 227 Cal.App.4th 611, 619

Seventh Holding:

To be sure, the text of section 1181 expressly limits the grant of a motion for new trial to the nine grounds enumerated in the statute. And ineffectiveness of trial counsel is not one of them.

Trial courts, however, have a duty to ensure that a trial is conducted with solicitude for the essential rights of the accused. That includes the right to effective counsel.

The Legislature has no authority to limit by statute a court’s constitutional obligation to ensure that a defendant is accorded due process. Therefore, our Supreme Court has stated that section 1181 should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.

In appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.

Authority:

People v. Fosselman (1983) 33 Cal.3d 572, 582

People v. Clark (2016) 63 Cal.4th 522, 630

People v. Watts (2018) 22 Cal.App.5th 102, 117

Eighth Holding:

We take issue with the trial court’s determination that the defendant could raise the issues of ineffective assistance of counsel and late discovered evidence on appeal. Unless the record on appeal includes an explanation as to why trial counsel acted or failed to act in the manner challenged, or unless counsel was asked for an explanation and failed to provide one, a claim on appeal that trial counsel was ineffective is at risk of being rejected.

Under the circumstances in this case, the trial court abused its discretion and deprived the defendant of his right to due process. We remand the matter and direct the trial court to grant the defendant a reasonable continuance to investigate and file a motion for new trial.

Authority:

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective assistance of counsel are often more appropriately litigated in a habeas corpus proceeding]

Duty of counsel, Sixth Amendment, Standard of review

Case 000740

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding the defendant knowingly and intelligently waived his right to counsel.

First Holding:

A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. The Sixth Amendment guarantees a defendant a right to counsel but also allows him to waive this right and to represent himself without counsel.

Authority:

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

Second Holding:

In any case in which a Faretta request for self-representation has been made, the court must evaluate two countervailing considerations: on one hand, the defendant’s absolute right to counsel, which must be assiduously protected; on the other hand, the defendant’s unqualified constitutional right to discharge counsel if he pleases and represent himself.

The right to representation by counsel persists until a defendant affirmatively waives it, and courts indulge every reasonable inference against such waiver.

The waiver of counsel must be knowing and voluntary—that is, the defendant must actually understand the significance and consequences of the decision, and the decision must be uncoerced. The purpose of the knowing and voluntary inquiry is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

People v. Marshall (1997) 15 Cal.4th 1, 20 [Courts must indulge every reasonable inference against waiver of the right to counsel]

Third Holding:

When confronted with a request for self-representation, a trial court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

Nevertheless, no particular form of words is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.

Authority:

People v. Dent (2003) 30 Cal.4th 213, 217–218

Faretta v. California (1975) 422 U.S. 806,. 835

People v. Lawley (2002) 27 Cal.4th 102, 140

Fourth Holding:

On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation. The defendant bears the burden of affirmatively demonstrating the waiver was invalid.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

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

Fifth Holding:

In Jackio, the court held that trial courts are required to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself.

In Bush, the court distinguished Jackio and held that, while the better practice would be to inform the accused, on the record, of the maximum sentence, including any maximum monetary fine that could be imposed on a conviction, we have not found any case specifically concluding that an advisement on this point is a constitutional minimum in every case.

Authority:

People v. Jackio (2015) 236 Cal.App.4th 445, 454

People v. Bush (2017) 7 Cal.App.5th 457, 473

Sixth Holding:

It is not entirely clear whether the invalid waiver is structural error that is reversible per se or whether the error should be reviewed for prejudice under the standard of Chapman, under which error is reversible unless harmless beyond a reasonable doubt.

We need not resolve that question because, even if the error was not structural, respondent has not shown the error was harmless beyond a reasonable doubt. The evidence against appellant was overwhelming. There is certainly a reasonable possibility that, faced with a sentence three times longer than he initially had in mind and with no plausible defense to the charges, appellant would have opted to forgo self-representation. And there is also a reasonable possibility appointed counsel could have negotiated a plea agreement with the prosecution that would have resulted in a sentence less than that appellant received.

Authority:

People v. Burgener (2009) 46 Cal.4th 231, 244 [acknowledging but not resolving split of authority]

People v. Ruffin (2017) 12 Cal.App.5th 536, 549

Duty of the court, Sentencing

Case 000731

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. We remand with directions to the trial court to recalculate the defendant’s custodial credits and to reimpose the restitution order with joint and several liability.

First Holding:

When the defendant was originally sentenced in 2008, the trial court imposed a restitution order of (more than $50,000) on all three defendants. The court ordered joint and several liability, that is, each defendant is entitled to a credit for any actual payments by the other. The trial court has the authority to order direct victim restitution paid by all defendants jointly and severally. On resentencing, the court reimposed an order for restitution in the same amount, but did not make an order of joint and several liability. To prevent the possibility of unjust enrichment—a double recovery by the victim—the restitution order must be corrected to reflect joint and several liability.

Authority:

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

People v. Leon (2004) 124 Cal.App.4th 620, 622 [if two defendants convicted of the same crime caused economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Second Holding:

The trial court erred in delegating the recalculation of the defendant’s custody credits to the Department of Corrections and Rehabilitation. The trial court should have recalculated and pronounced the number of custody credits the defendant had garnered to the date of resentencing. When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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