Tag Archives: Pleas and plea bargains

Appellate Principles, Duty of the court, Plea bargains

Case 001057

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to dismiss defendant’s misdemeanor conviction as contemplated by the parties’ plea agreement and affirm the judgment as modified.

Holding:

The terms of the parties’ plea agreement required the trial court to dismiss the misdemeanor count for carrying a dirk or dagger (count 2) because defendant failed to successfully complete probation, leaving the felony count remaining. While the trial court sentenced defendant to two years on the felony count, it did not address the misdemeanor count. In accordance with the parties’ plea agreement, we shall dismiss defendant’s misdemeanor conviction for carrying a dirk or dagger.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931 [a plea agreement is a contract that is binding upon the parties and the court]

Immigration, Plea bargains, Standard of review

Case 001051

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a denial of a motion under section 1473.7 to vacate the defendant’s conviction because he did not adequately understand the immigration consequences of his plea more than 15 years ago. As neither the court nor the defendant had the benefit of Hernandez when the court ruled on the motion, we remand for the court to hold a proper hearing.

First Holding:

The defendant pleaded no contest to petty theft with prior convictions in violation of section 666. A conviction under section 666 is a crime involving moral turpitude, which is a ground of deportability and inadmissibility. The conviction also renders a noncitizen ineligible to apply for permanent residency, despite his strong ties to U.S. citizens. A crime involving moral turpitude is also a ground of mandatory immigration detention.

Authority:

8 U.S.C. sec. 1227(a)(2)(i)(I)

8 U.S.C. sec. 1182(a)(2)(A)(i)(I)

8 U.S.C. sec. 1255(a)

8 U.S.C. sec. 1226(c)(l)(A)

Second Holding:

Section 1473.7 allows a person who is no longer in criminal custody to file a motion to vacate a conviction or sentence. To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Third Holding:

On appeal from a denial of a motion under section 1473.7, we independently review the evidence in the record. When the trial court’s findings are based on written materials rather than the court’s observations of the defendant, we do not defer to those findings because we are similarly situated to the trial court when interpreting a cold record.

We may reach a different conclusion from the trial court on an independent examination of the evidence even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Fourth Holding:

Hernandez has clarified the analysis courts must apply when evaluating whether there was error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry. Courts must engage in a case-specific examination that involves assessing credibility and weighing circumstantial evidence.

The most direct evidence of a defendant’s subjective understanding consists of the defendant’s own statements to the court when entering the plea and in declarations or testimony given in support of their section 1473.7(a)(1) motion. However, while the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.

(Gary note: The opinion goes on to cite several examples contained in the Hernandez opinion that may corroborate the defendant’s assertions. If you have such a case, Hernandez is a must-read.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614-617

Eighth Amendment, Equal protection, Plea bargains, Probation Parole PRCS, Sentencing

Case 001044

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 16 months in jail as a condition of probation. The matter must be remanded for resentencing, and for the court to determine the issue of the amount of the restitution fine in light of Kopp.

First Holding:

The trial court imposed a jail term of 16 months as a condition of probation because he had missed his appointment with his probation officer and failed to appear at the sentencing hearing. However, section 19.2 provides that, except in situations not here relevant, in no case shall any person sentenced to confinement in a county or city jail, as a condition of probation upon conviction of either a felony or a misdemeanor, be committed for a period in excess of one year.

Authority:

PEN 19.2

Second Holding:

Although Bailey held that the one-year limit may be waived by the defendant, Bailey is distinguishable because the defendant Bailey entered a knowing and intelligent waiver. There is no evidence here that the defendant was informed of the 12-month limit under section 19.2, and his agreement to the longer term was therefore not a knowing and intelligent waiver.

Authority:

People v. Bailey (1983) 140 Cal.App.3d 828, 831

People v. Arnold (2004) 33 Cal.4th 294, 308 [regarding waiver of credit for time served, the gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5]

People v. Sivongxxay (2017) 3 Cal.5th 151, 166 [criminal defendant’s waiver of right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it]

Third Holding:

On remand, the defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state constitutions. As to ancillary costs, if requested by the defendat, the trial court shall consider his inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1), allowing the parties to present any relevant evidence or argument on the matter.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 30-31

Plea bargains, Sentencing

Case 001042

Posted on by Gary McCurdy

Error and/or relief

The court erred in not staying the sentence under section 654 for one of the two counts. The defendant’s sentence is reversed and the matter is remanded to the trial court for resentencing. On remand, the trial court shall select a sentence to stay execution of pursuant to section 654.

First Holding:

Where, as here, probation is revoked after imposition of sentence was previously suspended, a court must determine all matters necessary for sentencing, including whether section 654 applies.

Authority:

Cal. Rules of Court, rules 4.435(b)(1), 4.433(c)(3), 4.424

Second Holding:

Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. When section 654 applies, the trial court has the discretion to select which statute to punish the defendant under and must stay execution of the other, duplicative sentences.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

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

Third Holding:

We review the trial court’s explicit or implicit factual findings on section 654 issues for substantial evidence. The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

Fourth Holding:

The record shows that the defendant removed an item from a business and was apprehended a short distance away from that business with the item still in his possession. At defendant’s sentencing hearing, the trial court indicated it was pretty obvious that defendant stole the item for the purpose of obtaining possession of it and then using it to support his drug habit. Under these circumstances, section 654 prohibits defendant from being punished for both theft and possession.

Authority:

People v. Allen (1999) 21 Cal.4th 846, 866-867

In re Adams (1975) 14 Cal.3d 629, 634

Fifth Holding:

Where, as here, the trial court suspended imposition of sentence and the defendant who was granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 934

Duty of the court, Plea bargains, Sentencing

Case 001035

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s failure to appear for sentencing, the court declined to reduce the felony to a misdemeanor as contemplated by the plea agreement that was accompanied by a Cruz waiver. This was error, as the court did not find that the defendant wilfully failed to appear for sentencing.

First Holding:

In Cruz, our Supreme Court held a defendant who pleads guilty pursuant to a plea bargain that is subsequently disapproved by the trial court for defendant’s failure to appear is entitled to withdraw his or her plea. But if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained for term.

Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

People v. Jones (2026) 119 Cal.App.5th 261, 265

Second Holding:

Here, the trial court did not advise the defendant of his right to withdraw his plea if the court imposed a more severe sentence. Nor did the court advise him that his conviction would not be reduced to a misdemeanor if he willfully failed to appear for sentencing. But the defendant’s written plea form stated that he would not be allowed to withdraw his guilty plea and that his negotiated disposition would be cancelled if he willfully failed to appear at sentencing.

To deprive him of the benefit of his plea bargain, the trial court must find that the defendant willfully failed to appear at his sentencing hearing. A defendant acts willfully if he knows what he is doing and intends to do it. The term ‘willful’ requires only that the prohibited act occur intentionally.

Authority:

PEN 7(b)(1)

People v. Atkins (2001) 25 Cal.4th 76, 85–86

In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438

Third Holding:

It is the People’s burden to prove a defendant willfully failed to appear for sentencing after being released pursuant to a Cruz waiver. This burden requires the People to present admissible evidence.

The People concede they did not present sufficient evidence to show appellant willfully failed to appear for sentencing. In fact, they presented no evidence. The People relied on the prosecutor’s conclusion that there’s a willful failure to appear because the defendant is responsible for getting to court for sentencing.

Authority:

People v. Jones (2026) 119 Cal.App.5th 261, 265

Fourth Holding:

From our review of the record, it does not appear that the trial court found, explicitly or implicitly, that the defendant’s failure to appear was willful. We presume that a trial court understands and properly carries out its duties. But the trial court’s statements here suggest that it did not consider whether the defendant’s failure to appear was willful. On this record, we must conclude that the trial court imposed the greater term of a felony conviction exclusively on the fact of the defendant’s failure to appear for the hearing, without determining whether the failure to appear was willful.

The matter is remanded to the superior court so that it can give the parties the opportunity to present evidence and to make a finding of whether the defendat’s failure to appear at his sentencing hearing was willful.

Authority:

EVID 664

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

People v. Jones (2026) 119 Cal.App.5th 261, 266