Tag Archives: Prejudice

Appellate Principles, Sentencing, Sixth Amendment

Case 001155

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on factors that were not submitted to a jury for proof beyond a reasonable doubt or stipulated to by the defendant.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the 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 trial by the jury or by the judge in a court trial.

Notwithstanding these provisions, 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:

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

Second Holding:

In Wiley, the Supreme Court held that aggravating factors must be found by a jury, including the increasing seriousness of prior convictions and unsatisfactory performance on probation, to be true beyond a reasonable doubt, in order to support the imposition of the upper term. It noted that the United States Supreme Court, in Erlinger, held that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1084-1085

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

The facts supporting every aggravating circumstance upon which the trial court relies to justify imposition of the upper term must be properly proven as the statute requires. The finding regarding the prior convictions as an adult for defendant were numerous and of increasing seriousness must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. The same applies to the determination of whether a defendant has served a prior prison term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1082-1084, 1085 [other than the fact of the prior conviction, a defendant is entitled to a jury determination on any other aggravating factors that expose him to a sentence more serious than the midterm sentence]

Fourth Holding:

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. 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. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

Appellate Principles, Immigration, Sentencing, Standard of review

Case 001153

Posted on by Gary McCurdy

Error and/or relief:

The court erred in denying the defendant’s motion to vacate her plea under section 1473.7 by concluding that she did not establish prejudicial error regarding her misunderstanding of the immigration consequences of her plea.

First Holding:

Section 1473.7(a)(1) provides that a person who is no longer in criminal custody may file a motion to vacate a conviction if the conviction is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

PEN 1473.7

Second Holding:

To prevail, the moving party must show three things.

First, they must show that they did not meaningfully understand the immigration consequences of their plea.

Second, they must show that their misunderstanding constituted prejudicial error.

And third, they must show that the conviction or sentence being challenged currently is causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The moving party bears the burden of establishing entitlement to relief by a preponderance of the evidence.

Authority:

PEN 1473.7(a)1, (e)(1), (f)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

To show prejudicial error under section 1473.7(e)(1), the moving defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he or she had rejected the plea, as well as the difference between the bargained-for term and the likely term if he or she were convicted at trial.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

However, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted or rejected a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321

People v. Bravo (2021) 69 Cal.App.5th 1063, 1074

Fifth Holding:

We independently review whether a movant has demonstrated entitlement to relief under section 1473.7(a)(1). In this context, independent review does not mean de novo review. We exercise independent judgment to determine whether the facts satisfy the rule of law. We weigh and consider all relevant circumstances, with no single factor being dispositive. We are in the same position as the trial court in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. We may not simply second-guess factual findings that are based on the trial court’s own observations. We afford particular deference to factual findings based on the trial court’s personal observations of witnesses.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 524, 527-528

People v. Coca (2023) 96 Cal.App.5th 451, 458

Sixth Holding:

But we do not defer to those findings that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And 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.

Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging defendant’s ability to meaningfully understand the immigration consequences of the charges to which she pled, or her ability to defend against those consequences or to knowingly accept them.

Authority:

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

Seventh Holding:

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. We ask whether the defendant has shown that they were unable to meaningfully understand the immigration consequences of their plea, or that their ability to defend against or knowingly accept those consequences was impaired. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

Authority:

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

Eighth Holding:

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.

(Gary note: The court then spent several pages analyzing the evidence that the defendant and the People presented at the hearing, and concluded that she established that she did not meaningfully understand the immigration consequences and that she suffered prejudice from that lack of understanding. The details are case-specific and of no value to any reader of this summary of an unpublished case.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 615

People v. Mosby (2004) 33 Cal.4th 353, 361 [going beyond the courtroom colloquy and examining the totality of circumstances to evaluate whether plea was knowing and voluntary]

People v. Patterson (2017) 2 Cal.5th 885, 898-899 [in deciding whether to permit withdrawal of guilty plea under section 1018 based on defendant’s mistake or ignorance courts consider all factors necessary to bring about a just result.]

Amelioration, Elements of crime, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 001124

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the petition for recall of sentence under section 1172.6 and direct the trial court to consider the defendant’s youth at the time of the killing as a relevant factor in determining whether the defendant formed the requisite mental state to be convicted of aiding and abetting an implied malice murder.

First Holding:

The trial court found that the defendant directly aided and abetted an implied malice murder. To satisfy the actus reus for that theory of liability, the aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The relevant act is the act that proximately causes death.

The required mens rea is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Second Holding:

Based on our review of the trial court’s written order denying resentencing, we conclude the trial court understood and applied the elements of directly aiding and abetting an implied malice murder. We therefore review its decision for substantial evidence.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We do not reweigh evidence or second-guess credibility determinations. We presume the existence of every fact the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a conviction based on insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

The defendant asserts that the trial court failed to consider his youth when deciding the resentencing petition. He did not raise the issue in the trial court, arguably forfeiting the issue. But we agree that considering the issue on the merits is appropriate where this emerging area of the law was only developing at the time the trial court denied the petition.

In Pittman, for example, the defendant argued for the first time on appeal after the denial of resentencing that his youth (21 years old at the time of the offense) was relevant to whether he acted with implied malice and therefore could be found guilty of second degree murder. The appellate court observed that the policy interests underlying the felony-murder cases—that youth is relevant to a criminal defendant’s ability to perceive risk and consequences, and therefore to the level of culpability—apply equally in the context of implied malice murder.

The Pittman court further concluded that failure to consider Pittman’s youth was not harmless, given trial evidence of Pittman and his peers acting impulsively and under the influence of transient rashness.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 416, 418 [Cases discussing the role of youth in relation to criminal culpability stress two areas: youthful offenders’ relative impulsivity and their vulnerability to peer pressure]

Fourth Holding:

The defendant was 20 years old at the time of the crime. Impulsivity and vulnerability to peer pressure may have contributed to his participation in the unplanned group attack of a rival gang member. We find it is reasonably probable a more favorable result would have been reached on the defendant’s petition had the trial court considered his youth.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417 (applying the Watson standard)

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

Immigration, Standard of review

Case 001106

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion under section 1473.7(a) to withdraw his no contest plea and vacate his conviction because he did not meaningfully understand the immigration-related consequences of his plea and that this was prejudicial

We reverse the order denying the defendant’s section 1473.7 motion. We remand the case to the trial court with directions to grant his motion, vacate his conviction, and permit him to withdraw his plea.

First Holding:

Section 1473.7 permits noncitizens who are no longer in criminal custody to seek vacatur of a conviction or sentence if they can show, by a preponderance of the evidence, the conviction or sentence is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.


To obtain relief under section 1473.7(a)(1), a defendant must satisfy two elements. The defendant must first show that he did not meaningfully understand the immigration consequences of his plea.

Next, the defendant must show that his misunderstanding constituted prejudicial error.

Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

If the court finds the defendant has made both of these showings and has established that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization, it must grant the motion and allow the defendant to withdraw the plea.

Authority:

PEN 1473.7

People v. Curiel (2023) 92 Cal.App.5th 1160, 1172

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Vivar (2021) 11 Cal.5th 510, 529

Second Holding:

We independently review a defendant’s entitlement to relief under section 1473.7(a)(1). In so doing, we exercise our independent judgment to determine whether the facts satisfy the rule of law.

We defer to the trial court’s factual findings to the extent they turn on the credibility of a witness’s live testimony. But when, as here, the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 524-525, 527, 528

People v. Espinoza (2023) 14 Cal.5th 311, 320

Third Holding:

A defendant establishes prejudice by showing that there is a reasonable probability that the person would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and the options for defending against those consequences.

A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Because immigration consequences may be more important to a noncitizen defendant than any term of incarceration, the focus of this inquiry is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626

Fourth Holding:

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.

Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320-321

Fifth Holding:

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

(Gary note: The court then dug into the details of this particular case and determined that the defendant demonstrated by the requisite preponderance of evidence that he did not fully understand the immigration consequences because of incorrect advice by his attorney, and that had he been properly informed, there was a reasonable probability that he would not have entered that plea.)

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321

Sixth Holding:

Whether the defendant could have secured a more favorable deal or prevailed at trial does not conclusively determine whether he established prejudice under section 1473.7. This is so because the focus is on what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.

Accordingly, our Supreme Court has explained that in evaluating whether a defendant would have rejected a plea on the hope or expectation of negotiating a different bargain without immigration consequences, we need not decide whether the prosecution would actually have offered a different bargain — rather, we should consider evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.

Authority:

People v. Padron (2025) 109 Cal.App.5th 950, 964

People v. Vivar (2021) 11 Cal.5th 510, 528-529

Seventh Holding:

(Gary note: This is not technically a holding or principle, but the Court of Appeal listed several cases where defendants with similar convictions were able to achieve surprisingly lenient, immigration-neutral sentences. I have included them below because they could prove useful comparisons on the the likelihood that a first degree burglary charge may be resolved in an immigration neutral manner.)

Authority:

People v. Kim (2009) 45 Cal.4th 1078, 1085 [Defendant was convicted of first degree burglary, but imposition of sentence was suspended and he was sentenced to five years’ probation on the condition he serve 180 days in jail]

People v. Preston (2015) 239 Cal.App.4th 415, 420 [following defendant’s guilty plea to one count of burglary and one misdemeanor count of false representation of identity to a peace officer, the trial court suspended imposition of sentence and placed defendant on five years’ probation]

People v. Ulloa (2009) 180 Cal.App.4th 601, 603 [defendant convicted of first degree, residential burglary, receiving stolen property, and misdemeanor vandalism sentenced to three years of formal probation and 120 days in jail]

People v. Romero (2002) 99 Cal.App.4th 1418, 1423 [defendant convicted of first degree burglary and, contrary to probation officer’s recommendation of a two-year prison sentence, given 36 months’ probation and 180 days in jail]

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

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

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

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