Tag Archives: Pleading and notice

Sentencing, Sixth Amendment, Standard of review

Case 001040

Posted on by Gary McCurdy

Error and/or relief

The trial court violated Penal Code section 1170(b) by imposing the upper term on one count of shooting at an occupied vehicle based on aggravating circumstances not found true by a jury or admitted by him. We reverse and remand for resentencing.

First Holding:

The Fifth and Sixth Amendments to the United States Constitution require that a jury find beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum. Section 1170(b)(2) codified this requirement by authorizing a court to impose the upper term only when the facts underlying an aggravating circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170(b)(2)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Cunningham v. California (2007) 549 U.S. 270, 282

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Allegations of prior convictions may be tried by the court alone. But here, the court did not exclusively rely on aggravating circumstances related to prior convictions. Additionally, one of the aggravating circumstances related to prior convictions—the defendant’s prior convictions as an adult and juvenile were numerous and of increasing seriousness—involves more than the permissible factual finding by a court that the convictions were sustained.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1083

Third Holding:

When the sentencing court relies on an aggravating circumstance not found by a jury, the reviewing court must apply the standard of prejudice under Chapman. We must reverse the sentence unless we conclude 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

Fourth Holding:

Whether the defendant was a danger to society is a subjective factual determination. Because the inquiry into the circumstances is comparative and qualitative, we cannot conclude with confidence that the jury would have assessed the facts in the same manner as the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1089-1090

Fifth Holding:

Because the omission of a jury trial was not harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, we must reverse the defendant’s sentence.

On remand, the proceedings must comply with the current statutory requirements and the defendant be given the opportunity for a jury trial. The trial court may rely on any properly proven aggravating facts and retains its discretion to impose an upper term sentence. If the court cannot conclude that one or more properly proved circumstances justifies an upper term sentence, it may impose no more than the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 777-778

Sentencing, Sixth Amendment, Standard of review

Case 001039

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term on the firearm enhancement based on aggravating circumstances which were not pleaded in the information nor found true by the jury. Remanded for resentencing.

First Holding:

The prosecution conceded that no aggravating circumstances were alleged against the defendant to support imposing the upper term on the enhancement. But she asserted that the evidence showed the defendant committed the crime with planning, sophistication, and professionalism, which is a factor in aggravation under California Rules of Court, rule 4.421(a)(8). Over objection by defense counsel, the court found the factors cited by the prosecution true and imposed the upper term on the firearm enhancement. This was error.

Section 1170.1(d)(2) permits a trial court to impose the upper term for a sentencing enhancement only when there are circumstances in aggravation 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.

Authority:

PEN 1170.1(d)(2)

Second Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. On this record, we cannot say the error was harmless beyond a reasonable doubt.

Authority:

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

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

Third Holding:

The District Attorney failed to allege any aggravating circumstances against the defendant in the information. The prosecutor merely argued that the evidence supported aggravating facts that she described for the first time at the sentencing hearing.

These aggravating circumstances—the offense was committed with planning, sophistication, and professionalism, and it was coldhearted, ruthless, and committed with disregard for human life—rest on a subjective standard, making it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

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

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

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

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. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]

Due process, Duty of counsel, Duty of the court, Effective assistance of counsel, Jurisdiction, Sentencing, Standard of review

Case 001026

Posted on by Gary McCurdy

Error and/or relief

Twenty-one years after his conviction of murder committed when he was 20, the defendant filed a motion for a hearing under Franklin. The court (Judge A) appointed counsel and set a hearing date to determine whether the defendant was entitled to a full evidence preservation hearing. The defendant’s attorney ultimately filed a motion to be relieved as counsel, requesting that the matter be taken off the calendar, stating that the defendant was not entitled to a Franklin hearing under Hardin. There was no indication that counsel had discussed this with the defendant. The defendant was not present. The court (Judge B) relieved counsel and took the matter off calendar.

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond.

To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden (1970) 2 Cal.3d 118

The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

First Holding:

Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the controlling offense, the offender is eligible for parole. The hearing must provide for a meaningful opportunity to obtain release, and includes an assessment of the offender’s growth and maturity that takes into consideration the diminished culpability of youth as compared to that of adults and the hallmark features of youth.

Given these factors, the California Supreme Court held in Franklin that when a juvenile offender receives an indeterminate life sentence, the offender must be given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.

Authority:

PEN 3051

People v. Williams (2024) 17 Cal.5th 99, 113

People v. Medrano (2019) 40 Cal.App.5th 961, 967

People v. Franklin (2016) 63 Cal.4th 261, 269

Second Holding:

In Cook, the California Supreme Court extended the availability of a Franklin hearing to a juvenile offender whose conviction and sentence have become final. Specifically, it held that an offender entitled to a youth offender parole hearing may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final. To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01.

Authority:

PEN 1203.01

People v. Ngo (2023) 89 Cal.App.5th 116, 127

In re Cook (2019) 7 Cal.5th 439, 451

People v. Howard (2021) 74 Cal.App.5th 141, 150

Third Holding:

The proper avenue to request a Franklin proceeding is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and Cook. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce.

There are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Fourth Holding:

A legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a Franklin proceeding is warranted. The trial court may also exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.

The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is appropriate, or if other types of evidentiary submissions will suffice. After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely to produce fruitful evidence.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 152

In re Cook (2019) 7 Cal.5th 439, 149

Fifth Holding:

Courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds.

While the California Supreme Court has concluded that section 3051’s exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.

Authority:

People v. Sands (2021) 70 Cal.App.5th 193, 201-202

People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489

People v. Hardin (2024) 15 Cal.5th 834, 864

Sixth Holding:

Generally, a trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion. Here, we have determined the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1119

People v. Cole (2004) 33 Cal.4th 1158, 1190

People v. Wright (2021) 12 Cal.5th 419, 440

Seventh Holding:

Generally, both the United States Constitution and California Constitution guarantee a basic right of due process, and the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

The Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.

Authority:

U.S. Const., 14th Amend.

Cal. Const., art. I, secs. 7, 15

People v. Allen (2008) 44 Cal.4th 843, 869

People v. Ramirez (1979) 25 Cal.3d 260, 265

Eighth Holding:

Generally, having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will. In light of this principle, it is established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.

These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. The legislative purpose of these provisions is to provide certain safeguards to protect the accused.

Authority:

CCP 284

CCP 285

People v. Prince (1968) 268 Cal.App.2d 398, 404, 406

Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558-559 [The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases.]

In re Martinez (1959) 52 Cal.2d 808, 813

People v. Bouchard (1957) 49 Cal.2d 438, 440

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636

Ninth Holding:

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the day after it was filed.

There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion.

Authority:

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636 [Adequacy of notice is an element of due process of law. There is no due process of law in the complete absence of any notice.]

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.]

People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5

Tenth Holding:

It is well established that a trial judge ordinarily may reconsider his or her own prejudgment rulings. There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.

This rule prevents a trial court judge from acting as a one-judge appellate court over another judge. This is true even if the first judge committed legal error in ruling on the matter. The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel.

Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing.

The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge.

Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

Authority:

Calif. Const. art VI, sec. 4

People v. Waldon (2023) 14 Cal.5th 288, 306

In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail]

People v. Goodwillie (2007) 147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge]

Eleventh Holding:

In our view, the error in this case is akin to structural error requiring reversal. Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. However, under the California constitutional harmless-error provision some errors are not susceptible to the ordinary or generally applicable harmless-error analysis.

The kinds of errors that, regardless of the evidence, may result in a miscarriage of justice because they operate to deny a criminal defendant the constitutionally required orderly legal procedure all involve fundamental structural defects in the judicial proceedings.

Most errors are amenable to harmless error review because they can be quantitatively assessed in the context of other evidence presented.

Structural defects, on the other hand, defy analysis by harmless-error standards because they are not simply an error in the trial process, but rather an error affecting the framework within which the trial proceeds. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 553

People v. Lewis (2025) 111 Cal.App.5th 1078, 1111

Discretion, Duty of the court, Pleading, Probation Parole PRCS, Sentencing, Standard of review

Case 001023

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s motion filed under Franklin and Penal Code section 1203.01 for a hearing to set forth youth-related evidence for consideration at future parole hearings.

We conclude that the trial court erred by denying the defendant’s motion absent evidence that the defendant had past opportunities to present youth-related evidence and absent information regarding the substance of the evidence that the defendant intended to present.

We decline to issue an order that the trial court grant the request for a Franklin hearing. We simply direct the court to hold a proper hearing on the motion to determine whether a Franklin hearing is warranted.

First Holding:

Section 3051(a)(1) provides for a youth offender parole hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of his or her controlling offense.

Section 4801(c) provides that, when a prisoner committed his or her controlling offense, as defined in section 3051(a), when he or she was 25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

Authority:

PEN 3051

PEN 4801(c)

Second Holding:

In Franklin, the Supreme Court held a defendant who did not have an opportunity to make a record of mitigating youth-related factors relevant to a later youth offender parole hearing should have an opportunity to make a record on remand.

The court explained that sections 3051 and 4801 contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. Assembling such statements about the individual before the crime is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.

The Supreme Court remanded the matter to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, and if not, to allow the defendant to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 283-284

Third Holding:

In Cook, the Supreme Court held that a juvenile offender with a final judgment could move for a postjudgment proceeding under section 1203.01, to present evidence of youth-related factors. The Cook court reasoned that recognizing the court’s authority under section 1203.01 to gather youth offender evidence effectuates sections 3051 and 4801.

For inmates who seek to preserve evidence following a final judgment, the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision that establishes the inmate’s entitlement to a youth offender parole hearing and indicates when such hearing is anticipated to take place, or if one or more hearings have already occurred.

Consistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Neither the passage of significant time, nor the fact that the defendant has had prior parole hearings is a bar to the court granting a Franklin hearing. The Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades-old convictions.

Authority:

PEN 1203.1

In re Cook (2019) 7 Cal.5th 439, 453, 458-459

People v. Benzler (2021) 72 Cal.App.5th 743, 751

Fourth Holding:

We review the trial court’s denial of a Franklin proceeding for abuse of discretion. In deciding whether the trial court has abused its discretion we are required to ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Benzler (2021) 72 Cal.App.5th 743, 749

Fifth Holding:

The defendant’s motion contained sufficient information. Nothing in Cook indicates the motion bust describe with precision the vidence the offender seeks to introduce. The court’s commentary in Cook about what a motion should include is not the same as creating mandatory pleading requirements.

Courts have found there are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

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

People v. Smith (2001) 24 Cal.4th 849, 852

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

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

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)

Sentencing, Sixth Amendment, Standard of review

Case 000890

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating factors that were not presented to a jury for proof beyond a reasonable doubt.

First Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

Rule 4.421 of the California Rules of Court provides a list of aggravating circumstances that must be stipulated to by the defendant or determined beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Notwithstanding section 1170(b)(1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2) and (3)

Rules of Court, rule 4.421

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Lynch (2024) 16 Cal.5th 730, 748, 759-760

Second Holding:

These provisions are subject to constitutional limitations under the Sixth Amendment. Specifically, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

For example, the Wiley court held that the defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085-1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Third Holding:

A defendant may waive his right to a jury trial on the aggravating factors, provided he does so personally and expressly. To be valid, the record must show the defendant’s waivers of the right to a jury are knowing, intelligent, and voluntary. In making such a determination, we examine the totality of the circumstances unique to each case.

In this case, we determine that the colloquy between the court and the defendant did not adequately inform him of what the aggravating factors were. Without a clear explanation that defendant was entitled to have a jury decide the truth of the specific aggravating factors that the court intended to use against him, or even notice of those aggravating factors, it cannot be said that he knowingly or intelligently waived his right to have a jury decide the truth of those specific aggravating factors, of which he was never made aware.

Authority:

People v. Collins (2001) 26 Cal.4th 297, 308

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. Daniels (2017) 3 Cal.5th 961, 990, 991 [a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent]

Fourth Holding:

Because defendant was deprived of a jury trial on the aggravating facts used to justify imposition of the upper term sentence, and there was no knowing or intelligent waiver, we must determine whether he was prejudiced by that error under the Chapman standard.

(Gary note: the court then reviewed the specific facts of the defendant’s criminal record and performance on probation or parole, details of which are case specific and would not add to this summary of an unpublished opinion that cannot be cited.)

Since we cannot conclude the lack of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify the upper term sentence, defendant is entitled to a reversal and remand for resentencing.

Authority:

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

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

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

Due process, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000882

Posted on by Gary McCurdy

Error and/or relief

Though the defendant was convicted of section 243.4(a), the correct code section for the pleaded and proved crime was section 243.4(d), and we modify the judgment accordingly. In all other respects, we affirm the judgment.

(Gary note: I stretch to count this as a win, because it did not really provide any relief. But it contains some important principles on what happens when the allegation describes conduct but lists the incorrect code section for it. So I decided to include it. Yep. My bar for inclusion is very low.)

First Holding:

Adequate notice to the defendant of the offense with which he is charged is not determined solely by the charging statute. A reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged.

The defendant was amply acquainted with the basis for count 3 and argues no prejudice from being charged under the wrong subdivision of section 243.4. The victim testified to the conduct underlying count 3 at the preliminary hearing and then again at trial. There is no dispute the evidence supports a conviction under subdivision (d).

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1439

People v. Thomas (1987) 43 Cal.3d 818, 826–827, 832

People v. Maury (2003) 30 Cal.4th 342, 427–428

(Gary note: the court did not cite it, but section 1260 provides that the appellate court may modify a judgment, among several other actions. While it does not specifically say that the court can modify the judgment by having it reflect a different code section than was alleged, the above cases make it clear that specification of a code section does not necessarily control whether the defendant has been placed on adequate notice of the conduct he is accused of.)

Second Holding:

We review de novo whether the trial court’s instructions on the law were correct. When instructions are claimed to be erroneous, conflicting, or ambiguous, we ask whether jurors were reasonably likely to have construed them in a manner that violates the defendant’s rights. We look to the instructions as a whole and the entire record of trial, including the arguments of counsel.

We assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions given. Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

People v. Rogers (2006) 39 Cal.4th 826, 873

People v. Franco (2009) 180 Cal.App.4th 713, 720

Third Holding:

The defendant argues the trial evidence does not support the conclusion that the victim was particularly vulnerable. We review an aggravating factor finding for substantial evidence. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the aggravating factor beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Mendez-Torres (2025) 113 Cal.App.5th 1007, 1020

People v. Wilson (2008) 44 Cal.4th 758, 806

People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [inability to speak English can be a factor suggesting particular vulnerability]

People v. Carpenter (1997) 15 Cal.4th 312, 413 [noting vulnerability from victim being alone]

People v. Clark (1990) 50 Cal.3d 583, 638 [noting vulnerability from victim being told a false story to get the victim into a private space]

People v. Stevens (2007) 41 Cal.4th 182, 203 [noting a vulnerable position arises from exploiting a false sense of security]

Pleading, Statutory interpretation

Case 000843

Posted on by Gary McCurdy

Error and/or relief

Defendant’s two convictions for methamphetamine possession were based on the same act and one of them must therefore be reversed. Count 2 must be vacated. Because the record does not indicate defendant’s current status or the extent to which the invalid conviction may have influenced the trial court’s sentencing choices, we will remand the matter for appropriate action by the trial court.

First Holding:

A defendant may be charged in an accusatory pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged, but if two alleged offenses are different statements of the same offense, both offenses may be charged based on the same act, but convictions for both cannot stand.

Authority:

PEN 954

People v. Aguayo (2022) 13 Cal.5th 974, 979

Second Holding:

The most reasonable construction of the language in Penal Code section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 650

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

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

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Due process, Pleading, Sentencing

Case 000603

Posted on by Gary McCurdy

Error and/or relief

The court sentenced the defendant under the One Strike Law (section 667.61), but relied on special circumstances that had not been alleged in the information to impose sentences of 25 years to life on several counts. Because of the lack of notice to the defendant that the specific special circumstances would be relied on, the sentences on those counts are reversed and the matter is remanded.

First Holding:

A defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for the defendant’s crimes.

Due process does not require rigid code pleading or the incantation of magic words. To satisfy due process, it is sufficient for an accusatory pleading to provide the defendant fair notice of a particular one strike sentence the prosecution is seeking and of which facts it intends to prove to support that sentence.

The ambiguity of the one strike allegation is that section 667.61 (a) provides for a 25-year-to-life sentence if the offense is committed under two or more circumstances in subdivision (e), and the information alleged only one circumstance, i.e., multiple victims. While the information notifies defendant of the 25-year-to-life term that applies under subdivision (a), that subdivision is not triggered based on the single subdivision (e) circumstance alleged.

Thus, the information is, at best, ambiguous and confusing as to whether the prosecution intended to seek terms of 25 years to life and, if so, based on which alleged circumstances, rather than 15 years to life based on the multiple victim circumstance.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 747

In re Vaquera (2024) 15 Cal.5th 706, 721, 720, 723-725