Tag Archives: PEN 1385

Fourth Amendment, Standard of review

Case 000086

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his motion to suppress evidence, contending the court erred when it found police officers had reasonable suspicion to detain him. Because we have concluded there was insufficient evidence that defendant’s conduct, when considered in the totality of circumstances, supported a reasonable suspicion that he was, or was about to be, engaged in activity relating to crime, we agree with defendant that the officers lacked reasonable suspicion to detain him. Accordingly, the subsequent recovery of the handgun was the product of an illegal detention and arrest and evidence related to the recovery was subject to exclusion.

[GARY NOTE: The facts relied on by the court are too extensive to adequately summarize. Essentially, the officer saw a group of people milling about. When some appeared to notice him, they ran off, though the defendant and one other did not run off. The officer described various body movements and claimed to have seen something that was not borne out by the appellate court’s review of the body cam video.]

First Holding:

The Fourth Amendment permits an officer to initiate a brief investigative stop when the officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts cannot reasonably demand scientific certainty where none exists. Rather, they must permit officers to make commonsense judgments and inferences about human behavior.

Authority:

Kansas v. Glover (2020) 589 U.S. 376, 380–381

People v. Flores (2024) 15 Cal.5th 1032, 1041

Second Holding:

The officer’s subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.

Authority:

People v. Wells (2006) 38 Cal.4th 1078, 1083

Third Holding:

In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. In doing so we do not consider each fact in isolation. Instead, we must consider the totality of the circumstances—the whole picture.

Authority:

People v. Flores (2024) 15 Cal.5th 1032, 1043

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

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

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

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

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

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to 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.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

Authority:

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

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

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

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

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

Duty of the court

Case 000025

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1385

Second Holding:

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

Authority:

PEN 1385(c)(2)