Tag Archives: Duty of the court

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000381

Posted on by Gary McCurdy

Error and/or relief

The parties agree the minute order and abstract of judgment contain clerical errors regarding the imposed enhancements and should be corrected to reflect the trial court’s oral pronouncement of judgment. The court also must determine credit for time served. We agree.

First Holding:

Courts have the inherent power to correct clerical errors, either on their own motion or upon the application of the parties. Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error]

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Second Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, 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. Sek (2022) 74 Cal.App.5th 657, 673

Due process, Duty of the court, Standard of review

Case: 000380

Posted on by Gary McCurdy

Error and/or relief

We review an order denying the defendants motion to vacate his conviction based on newly discovered evidence of factual innocence, pursuant to Penal Code section 1473.7(a)(2). We reverse the order because the defendant was entitled to a hearing in the trial court to consider his eligibility for relief under section 1473.7(d).

First Holding:

The construction and interpretation of a statute is a question of law that we consider de novo on appeal.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 975

Second Holding:

Section 1473.7 expressly provides that a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Persons who file a section 1473.7 motion are entitled to a hearing on the merits of the motion, per subdivision (d): “All motions shall be entitled to a hearing.” The plain language of section 1473.7 also entitles the moving party to be personally present at the hearing. However, upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.

Authority:

PEN 1473.7

Third Holding:

As to appointment of counsel on the defendant’s behalf, the trial court was required to determine whether his petition stated a prima facie case for relief. If a prima facie case has been made, appointment of counsel is demanded by due process concerns. Here, the trial court summarily denied the petition without addressing entitlement to counsel and whether the defendant had presented a prima facie case for relief. The court reviewed only a handwritten one-page motion that it determined fails to cite to a basis for the relief without reviewing the entirety of the defendant’s 42-page motion.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, 983

Amelioration, Sentencing

Case: 000372

Posted on by Gary McCurdy

Error and/or relief

It was error to conclude that the defendant was not eligible for resentencing under section 1172.75.. The court, the prosecutor, and the defense attorney all based their arguments and decisions on the understanding that the now-invalid prior prison term had been stricken by the appellate court in a prior appeal for reasons other than those eligible for striking under PEN 1172.75. The parties misunderstood the facts. While it is true that one prior prison term was stricken by the appellate court, there were two prior prison terms, only one of which had been stricken. Thus, when the defendant filed his PEN 1172.75 petition, he was eligible for resentencing, because he was a person described in PEN 1172.75.

First Holding:

(GARY NOTE: I decided to include this victory not so much because of its legal authorities so much as just a reminder of the importance of counsel to actually investigate the case. The parties all seemed to assume that there was one prior prison term, and that it had been stricken as a result of a prior appeal. As it happens, it was stricken because it had been used to enhance the sentence as both a prior serious felony under PC 667 and as a prior prison term under PC 667.5, whereas the law permits it to be used only once, per Jones. But the parties and the trial court missed the fact that the defendant had two prior prison terms, only one of which had been dismissed in the prior appeal.

(In my opinion, that should have been discovered far earlier than on the appeal from the denial of the PC 1172.75 petition because of a misunderstanding of the facts, particularly once the number of prior convictions became an issue when the prosecutor asserted that the defendant was not eligible. I do concede I do not know what occurred in and out of the lower court. But the Court of Appeal, which does not engage in investigation of matters outside the record on appeal, was able to determine the existence of the qualifying prior prison term just by reading the prior opinion from 2016, which states (in part and paraphrased), “The information also alleged that defendant suffered a conviction in case No. xxxxxxx, a serious felony conviction in case No. xxxxxx, and two prison convictions, one in case No. xxxxxxx, and one in case No. xxxxxx (Pen. Code, sec. 667.5(b).”)

Authority:

PEN 1172.75

People v. Jones (1993) 5 Cal.4th 1142, 1150

Second Holding:

It is unclear from the record as originally filed how the section 1172.75 proceedings had been initiated. Section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for section 1172.75 relief brought solely by a defendant]

Third Holding:

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 as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

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

Case: 000369

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in failing to conduct a full resentencing. The court erred in its calculation of custody credits, both as to postsentence conduct credits and credits for days in actual custody. The abstract of judgment should be corrected to reflect the oral pronouncement of judgment as to the restitution fines and the victim restitution order.

First Holding:

When a defendant is convicted of an offense, a sentencing court has a duty to render judgment and impose the penalty authorized by law. Judgment is rendered when the trial court orally pronounces sentence. In rendering the judgment, the court must pronounce sentence on each count for which the defendant sustained a conviction. The failure to pronounce a sentence for each conviction results in an unauthorized sentence that can be corrected at any time.

Authority:

PEN 12

People v. Martinez (2015) 240 Cal.App.4th 1006, 1012

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

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

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

Second Holding:

At the resentencing hearing following our remand in the earlier appeal, the trial court addressed only the errors we identified in our opinion. Our remand order was not so limited. It was for a full resentencing.

Authority:

People v. Smith (1985) 166 Cal.App.3d 1003, 1008, abrogated on another ground by People v. Bullock (1994) 26 Cal.App.4th 985

Third Holding:

The trial court’s statements suggest a fundamental misunderstanding of the effect of our order vacating the defendant’s sentence and remanding for a full sentencing, which was the nullification of the previous sentence. Because the prior sentence no longer existed, the court had to construct an entirely new sentence. By failing to orally pronounce a sentence on the nine counts for which it stayed the sentences at the original sentencing, the court failed to render judgment on all of the defendant’s convictions, resulting in an unauthorized sentence. When the trial court stated it was excluding counts it had previously stayed under section 654, the trial court used the term concurrent in connection with section 654. But where section 654 applies, it precludes any multiple punishment, consecutive or concurrent.

Authority:

People v. Rouse (2016) 245 Cal.App.4th 292, 297

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

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

People v. Deloza (1998) 18 Cal.4th 585, 594

Fourth Holding:

Generally, when an unauthorized sentence is discovered on appeal, a reviewing court affirms the defendant’s conviction and remands the case for the trial court to pronounce a sentence consistent with the verdict.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Fifth Holding:

Our order for a full resentencing necessarily encompasses calculating the defendant’s custody credits and the appropriate assessments, fines, and restitution awards. When it resentenced the defendant, the trial court was required to credit her with all actual days she had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

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

Sixth Holding:

A trial court is required to include all aspects of a judgment in its oral pronouncement. That includes fines and direct victim restitution. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. Upon a defendant’s request, the trial court must hold a hearing on the defendant’s ability to pay before imposing ancillary costs, like the court operations assessment (sec. 1465.8(a)(1)) and the court facilities assessment (Gov. Code, sec. 70373).

Authority:

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

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

People v. Rowland (1997) 51 Cal.App.4th 1745, 1751

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

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

Case: 000358

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to properly consider its discretion on whether to strike the prior serious felony conviction in light of the presence of one or more mitigating circumstances enumerated in section 1385(e), in the absence of a finding of danger to public safety.

First Holding:

Senate Bill No. 81, effective January 1, 2022, added subdivision (c) to section 1385. Section 1385(c) provides, “(1) 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. (2) In exercising its discretion under [subdivision (c)], the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] 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.

The mitigating circumstances identified in the subparagraphs include, among others, that multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. And they include that the application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

Second Holding:

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. This furtherance of justice inquiry requires a trial court’s ongoing exercise of discretion. Thus, notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

Third Holding:

In determining whether dismissing an enhancement would endanger public safety, the plain words of the statute do not support a trial court’s singular focus on whether the defendant currently poses a danger. Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal will impact the length of the defendant’s sentence. Thus, a currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect of release from prison until he is elderly.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225, 228

Fourth Holding:

We review a trial court’s decision not to strike a sentence enhancement under section 1385 for abuse of discretion. The abuse of discretion standard is highly deferential. When a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.

We presume that the trial court acted to achieve legitimate sentencing objectives. The burden is on the party challenging the sentencing decision to show that the court abused its discretion. We may not presume error from a silent record. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules. In addition as a general rule a trial court is presumed to have been aware of and followed the applicable law. Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. A trial court abuses its discretion by rendering a sentencing decision based on impermissible factors or on an incorrect legal standard. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Nakano (2023) 89 Cal.App.5th 623, 635 [an abuse of discretion occurs when the trial court applies the wrong legal standard]

People v. Flores (2020) 9 Cal.5th 371, 431

Fifth Holding:

When the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign great weight to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice. The term “great weight” did not create a presumption in favor of dismissal, but should be interpreted to mean 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.

Without credible evidence to support findings on aggravating circumstances, judges could disregard mitigating factors without a proper basis for doing so. This would be incompatible with the great weight the Legislature has attached to the enumerated mitigating circumstances. Section 1385(c)(2)’s mandate to give great weight to enumerated mitigating circumstances requires a sentencing court to engage in a holistic balancing with special emphasis on the enumerated mitigating factors.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094

Sixth Holding:

On appeal, we presume that a judgment or order of the trial court is correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.

Authority:

People v. Giordano (2007) 42 Cal. 4th 644, 666

Seventh Holding:

The court did not explicitly conclude that dismissal of the enhancements would result in a danger to public safety. Indeed, the trial court did not discuss public safety in its findings, nor did it make any statements related to the possibility of the defendant committing further crimes if his sentence were to be reduced, and he were to be released early, following dismissal of the enhancements. when the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign “great weight” to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice.

Walker and Gonzalez had not been decided at the time of the trial court’s ruling, and that in making its findings, the trial court did not use the word “mitigating factors,” or specifically discuss the mitigating factors listed under section 1385(c). While we acknowledge that a silent record does not, on its own, reflect an abuse of discretion , we find it is not evident from the instant record and findings that the trial court would have still exercised its discretion not to dismiss the enhancement if it had the guidance provided in those cases. The trial court did not make any indication that the defendant would pose a danger to public safety if he were to be released early as a result of a reduced sentence.

Further, while the trial court’s final order cited the serious nature of the defendant’s offenses, as well as his criminal history. it is unclear if such findings reflected the trial court engaging in a holistic balancing with special emphasis on the enumerated mitigating factors as required under Walker. Under these circumstances, we conclude that remand for resentencing is required. In reaching our decision, we do not express any position on how the court should exercise its discretion under section 1385 regarding dismissal of the section 667(a) enhancement.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2023) 15 Cal.5th 416, 424 [noting that if the trial court is unaware of the scope of its informed discretion at the time of sentencing and fails to exercise it in making a sentencing decision, the appellate court must remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

People v. Walker (2024) 16 Cal.5th 1024, 1036

Jury trial, Standard of review

Case: 000355

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it overruled defendant’s objection to the prosecutor’s use of a peremptory challenge to excuse a prospective Hispanic juror who reported negative experiences with law enforcement and the criminal justice system, where the prosecutor did not overcome the presumptive invalidity of the challenge by clear and convincing evidence.

First Holding:

Intentional discrimination is not the correct standard for determining whether the exercise of a peremptory challenge was improper. The court did not first require the prosecutor to overcome the presumptive invalidity of the challenge under the more demanding standard set forth in Code of Civil Procedure section 231.7(e). We may not impute to the trial court findings it did not make, but in this case, the record is devoid of any evidence that the prospective juror’s negative experiences with law enforcement and the criminal justice system bore on his inability to be fair and impartial. Under these circumstances, the prosecutor did not overcome the presumptive invalidity of the peremptory challenge, the trial court erred in overruling defendant’s objection, and section 231.7 compels reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7(e) and (j)

People v. Guzman (2025) 115 Cal.App.5th 464, 475

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

Second Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.

Authority:

People v. Parker (2017) 2 Cal.5th 1184, 1210–1211

People v. Lenix (2008) 44 Cal.4th 602, 612

Third Holding:

The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. This is so because it is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection—actual or perceived—erode confidence in the adjudicative process, undermining the public’s trust in courts.

Authority:

Powers v. Ohio (1991) 499 U.S. 400, 412, 415

People v. Gutierrez (2017) 2 Cal.5th 1150, 1154

Miller-El v. Dretke (2005) 545 U.S. 231, 238

Fourth Holding:

Under the Batson/Wheeler test, the ultimate question for the trial court in ruling on an objection to a peremptory challenge is whether the party exercising the objection engaged in ‘purposeful discrimination. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. The Legislature intended that the new law be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges.

Authority:

CCP 231.7

People v. Guzman (2025) 115 Cal.App.5th 464, 475

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Ortiz (2023) 96 Cal.App.5th 768, 791–792

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

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

Fifth Holding:

Section 231.7 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. If a party or the trial court objects to the use of a peremptory challenge, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.

If the reason for the exercise of the peremptory challenge is not presumptively invalid under section 231.7(e) or (g) (which set forth specific reasons that are presumptively invalid), the reason is to be evaluated in light of the totality of the circumstances to determine if there is a substantial likelihood that an objectively reasonable person, who is aware that unconscious bias and purposeful discrimination have resulted in the unfair exclusion of potential jurors in California, would view membership or perceived membership in any of the protected groups as a factor in the use of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection.

Authority:

CCP 231.7

People v. Barnes (2024) 107 Cal.App.5th 560, 577–578

Sixth Holding:

The trial court’s denial of an objection under section 231.7 is reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall 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. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Discretion, Duty of the court, Effective assistance of counsel, Sentencing, Sixth Amendment

Case: 000353

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s Sixth Amendment rights by imposing a sentence based on aggravating circumstances that were neither admitted by him nor tried to a jury. The trial court conducted an inadequate inquiry when the defendant requested that new counsel be substituted.

[GARY NOTE: The unpublished opinion lays out several observations that it characterizes as possibly arguable deficiencies in counsel’s performance that would support a finding that it would be necessary to substitute new counsel as the defendant requested. Many of the specifics have been redacted from the filed opinion itself, as the Marsden hearing is a confidential inquiry conducted outside the presence of the prosecution and the public, and the matters stated by any participants (the defendant, the attorney for the defendant, the court) at the hearing are not subject to public disclosure.]

First Holding:

The defendant is entitled to resentencing because the trial court violated his Sixth Amendment rights by relying on aggravating circumstances based on facts that had not been admitted or tried to a jury. Although the defendant did not preserve this claim in the trial court, his failure to do so does not forfeit his Sixth Amendment right to a jury trial.

Authority:

People v. French (2008) 43 Cal.4th 36, 47-48

Second Holding:

In Cunningham, the United States Supreme Court held that, except for prior conviction allegations, the Sixth Amendment requires any fact that exposes a defendant to a greater potential sentence to be found by a jury beyond a reasonable doubt. The sentencing scheme in effect in California at the time violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. Cunningham explained that California could comply with the Sixth Amendment either by requiring jury findings for any facts necessary to impose an aggravated sentence or, alternatively, by authorizing sentencing courts to exercise broad discretion within a statutory range.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281, 294

People v. Lynch (2024) 16 Cal.5th 730, 746-747

Third Holding:

California’s current sentencing scheme (in effect at the time of the defendant’s sentencing) adopts the first option Cunningham outlined. Under section 1170(b), when a statute specifies three possible terms, the court must order imposition of a sentence not to exceed the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances 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. After revoking the defendant’s probation, the court found in aggravation that the crime involved great violence, great bodily harm, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. But this aggravating factor was not admitted or otherwise proved to the trier of fact.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 294

People v. Lynch (2024) 16 Cal.5th 730, 748

Fourth Holding:

We apply the rigorous Chapman standard of review to determine whether the trial court’s reliance on unproven aggravating circumstances was prejudicial. Under that standard, the violation is prejudicial unless we can conclude, beyond a reasonable doubt, that a jury would have found true all the aggravating facts upon which the challenged sentence was based. The defendant is entitled to a remand for resentencing unless the appellate court can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence. Put another way, the defendant is entitled to a remand unless no reasonable jury would have found in favor of the defendant as to any of the aggravating facts relied upon by the trial court. In conducting this analysis, moreover, we may not assume that the record contains all the evidence that would have been presented had the aggravating circumstances been tried to a jury.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Fifth Holding:

Further, because the court imposed an enhancement for great bodily injury under section 12022.7, it was improper to also rely on great bodily injury as a factor in aggravation for purposes of imposing the upper term, although that error is subject to harmless error analysis. The court could, without running afoul of section 1170(b)(5), rely on other aggravating circumstances independent of the great bodily injury enhancement, such as a finding that the offense involved great violence or reflected a high degree of cruelty, viciousness, or callousness.

Authority:

PEN 1170(b)(5) [a court cannot impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court, rule 4.421(a)(1)

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

Sixth Holding:

When a defendant requests that his appointed counsel be relieved and new counsel be appointed under Marsden, the trial court must give the defendant an opportunity to explain his concerns about his counsel’s performance and provide examples of deficiencies. The defendant is entitled to substitute counsel when the record clearly shows that the appointed counsel is not providing adequate representation. The trial court abuses its discretion when the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. The trial court also abuses its discretion if it does not conduct an adequate inquiry into the defendant’s motion. When the defendant has identified shortcomings by counsel, the court must obtain counsel’s response and conduct any further inquiry that is needed to determine whether counsel had adequate explanations for all of the defendant’s complaints.

The critical factual inquiry in a Marsden hearing will often involve whether counsel consulted sufficiently with their client, adequately investigated the facts, and properly prepared for the relevant hearing. When the trial court’s inquiry is deficient, we remand the case for a new Marsden hearing. On this record, the trial court lacked an adequate basis to determine whether counsel had properly investigated and prepared the defendant’s mitigation case for the sentencing hearing. Likewise, we lack an adequate record to review the trial court’s denial of Marsden relief. On remand, the trial court should conduct a Marsden hearing to determine whether the defendant is entitled to substitute counsel for purposes of his resentencing.

Authority:

People v. Marsden (1970) 2 Cal.3d 118, 123-124

People v. Taylor (2010) 48 Cal.4th 574, 599

People v. Carter (2024) 15 Cal.5th 1092, 1099, 1102-1104

People v. Ng (2022) 13 Cal.5th 448, 500

People v. Abilez (2007) 41 Cal.4th 472, 488

People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 [stating the trial court must make a careful inquiry before it can intelligently rule on the Marsden motion]

Appellate Principles, Duty of the court, Sentencing

Case: 000352

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not conducted a full resentencing under section 1172.75 after striking the now-invalid prior prison term enhancements and in conducting the hearing in the absence of the defendant without his express consent.

First Holding:

A defendant is entitled to a full resentencing hearing under section 1172.75.

Authority:

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]

Second Holding:

Absent a valid waiver under section 977, defendant is entitled to be present physically or by remote appearance at resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Third Holding:

Resentencing under section 1172.75 ordinarily must be initiated by the California Department of Corrections and Rehabilitation (CDCR), by the CDCR notifying the trial courts—no later than December 31, 2023—of all incarcerated individuals who may be entitled to relief under the statute. Compare Burgess with Cota–two cases discussing different circumstances under which a defendant-initiated resentencing petition is improper, but the CDCR’s failure to notify trial court by deadline does not preclude full resentencing hearing. Here, it appears the trial court’s early, but incomplete action granting defendant some resentencing relief by striking his section 667.5(b) prison-prior terms in 2022 made it unlikely defendant would appear on the CDCR resentencing-eligibility lists submitted to the trial court in 2023. That defendant may have fallen through the cracks in this manner does not deprive him of full resentencing eligibility under section 1172.75. To the extent necessary for procedural regularity, we deem defendant’s appeal here a petition for habeas corpus to secure the resentencing hearing the People concede is necessary.

Authority:

PEN 1172.75(b) and (c)

People v. Burgess (2022) 86 Cal.App.5th 375, 379-382

People v. Cota (2025) 112 Cal.App.5th 1118, 1131

People v. Boyd (2024) 103 Cal.App.5th 56, 71-72 [appeal may be treated as a habeas corpus petition in the interest of judicial economy]

Duty of the court, Juveniles, Sentencing

Case: 000349

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in setting restitution without allowing the minor an opportunity to challenge the amount. We reverse the juvenile court’s restitution award and remand the matter for a contested restitution hearing.

First Holding:

The minor had posed as another person and agreed to buy a counterfeit watch. On meeting the seller, he robbed the seller. At the disposition hearing, the seller said he’d paid a specified amount for the counterfeit watch. The minor asked the court to reserve the question of the amount so the minor could research and present evidence on what the market rate was for counterfeit watches. The court denied the motion and set restitution at the sum the seller testified to.

A victim of conduct for which a minor is found to be a person described in Welfare and Institutions Code section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor. For stolen property, the value shall be the replacement cost of like property, or the actual cost of repairing the property, whichever is less. A minor has the right to a hearing before a judge to dispute the determination of the amount of restitution. This statutory directive is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims’ claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy due process, and ensure fundamental fairness in the determination of the restitution ultimately ordered.

Authority:

WIC 730.6

In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391

Second Holding:

The juvenile court’s refusal of the minor’s request for a restitution hearing wherein he could present evidence contesting the victim’s statement to authorities and the probation department recommended restitution order was contrary to section 730.6(b)(2)’s directive and thus an abuse of discretion.

Authority:

In re S.E. (2020) 46 Cal.App.5th 795, 804

In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391

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

Case: 000348

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]

First Holding:

It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Erlinger v. United States (2024) 602 U.S. 821, 840

Second Holding:

A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

People v. Holmes (1960) 54 Cal.2d 442, 443–444

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]

Third Holding:

Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fourth Holding:

We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fifth Holding:

A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.

Authority:

People v. DePriest (2007) 42 Cal.4th 1, 50

People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6

Sixth Holding:

The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.

Authority:

People v. Brown (2016) 245 Cal.App.4th 140, 153

Seventh Holding:

Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).

Authority:

People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]

Appellate Principles, Duty of the court, Jury instructions, Standard of review

Case 000344

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred and violated his due process rights by failing to provide a self-defense instruction as to the lesser included battery offense. We reverse defendant’s misdemeanor simple battery conviction.

First Holding:

The trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239

Second Holding:

We independently review claims of instructional error. We examine the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Houston (2012) 54 Cal.4th 1186, 1229

Third Holding:

Under appropriate circumstances a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case. But a trial court need not give a pinpoint instruction if it is argumentative , merely duplicates other instructions , or is not supported by substantial evidence. However, a defendant bears the burden of requesting a pinpoint instruction; a trial court has no sua sponte duty to provide one.

Authority:

People v. Bolden (2002) 29 Cal.4th 515, 558

People v. Gutierrez (2009) 45 Cal.4th 789, 824

Fourth Holding:

Furthermore, a trial court must instruct the jury sua sponte on general principles of law applicable to the case, including any defense supported by substantial evidence that is not inconsistent with the defendant’s theory of the case. In deciding whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the evidence, but only whether there is evidence which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt.

Authority:

People v. Villanueva (2008) 169 Cal.App.4th 41, 49

People v. Barton (1995) 12 Cal.4th 186, 195

People v. Orlosky (2015) 233 Cal.App.4th 257, 269-270

Fifth Holding:

Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. But that rule does not apply when the trial court gives an instruction that is an incorrect statement of the law. Moreover, a failure to object to instructional error will not result in forfeiture if the error affects the defendant’s substantial rights. In this instance, the trial court on its own modified the instruction on the lesser included offense of battery by omitting the element of lack of self-defense, and directing the jury to consider self-defense solely on the question of whether he acted in self-defense on the greater offense of inflicting corporal injury. The instruction affirmatively and erroneously precluded the jury from considering the self-defense evidence in connection with the lesser included battery charge.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Townsel (2016) 63 Cal.4th 25, 60

Sixth Holding:

The California Supreme Court has yet to determine whether a trial court’s failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error. We need not resolve the question in this case, because the error was prejudicial even under the state law standard. Under that standard, reversal is warranted if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. In this context, a probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Gonzalez (2018) 5 Cal.5th 186, 199

People v. Salas (2006) 37 Cal.4th 967, 984

Chapman v. California (1967) 386 U.S. 18, 24 [federal harmlessness standard]

People v. Watson (1956) 46 Cal.2d 818, 836-837 [state law harmlessness standard]

Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050

Duty of the court, Sentencing, Standard of review

Case: 000336 (There is no 000335)

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence for either the assault or the battery conviction.

First Holding:

Although Code of Civil Procedure section 269 provided defendant with a statutory right to a certified shorthand reporter rather than an electronic recording, we conclude violation of that statutory right was harmless. The proceedings were recorded electronically and extensive transcripts were prepared based on the recordings.

The California Supreme Court has held that the trial court’s failure to comply with Penal Code section 190.9, requiring that all proceedings in a capital case be conducted on the record with a court reporter present, was harmless where the record was nevertheless adequate to permit meaningful appellate review.

Similarly, here, defendant possessed a statutory right to a certified court reporter, but the trial court’s inability to comply with that right, regardless of the reason, was harmless so long as the electronic recording produced an adequate appellate record.

(Gary note:  You might want to look at Family Violence Appellate Project v. Superior Court (Contra Costa County) 8/10/26 S288176, in which the Supreme Court recognized the right to a verbatim transcript, whether by certified shorthand reporter or electronic, despite the Government Code section 69957 proscription against use of electronic recording other than in limited exceptions.  While the case was a civil dispute, the principles would seem to apply in criminal cases as well.  It’s at least worth looking at, because it may be useful on the quality of the transcript process even where criminal proceedings are electronically recorded.)

Authority:

CCP 269

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1256-1258 (Hajek and Vo were abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216)

Second Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Authority:

PEN 654

Third Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act.

Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Section 654 prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective.

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Latten (2021) 63 Cal.App.5th 574, 577

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

Section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Thus, unless the record clearly indicates which sentence the trial court would stay, remand is required to permit the trial court to exercise its discretion.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

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