Tag Archives: Recall of sentence or resentencing

Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence, Vicarious liability

Case 000608

Posted on by Gary McCurdy

Error and/or relief

The denial of the defendant’s motion for recall of sentence under section 1172.6 is reversed, and the court is directed to grant the petition. After examination of all the evidence, we conclude that there is insufficient evidence to support any theory today under which the defendant coould be convicted of murder.

First Holding:

The defendant was the assigned getaway driver who was not present in the building where the robbery took place. A bystander was killed by the police during the confrontation between the other defendants and the police. The defendant entered a plea bargain in which he pleaded guilty to one count of felony murder. First degree implied malice murder is not a valid theory of conviction for an accomplice under the provocative act theory of murder; the accomplice must harbor express malice–the specific intent to kill–in order to be properly convicted of first degree murder under this theory.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 662

Second Holding:

The felony murder rule is not applicable where the killing was committed by a third party (e.g., police officer) who was not involved in the perpetration of the underlying felony. Because the felony murder rule is not applicable to these facts, the Banks/Clark inquiry as to the degree of defendant’s participation in the robbery and whether he displayed reckless indifference to human life during the course of the robbery is also inapplicable.

The provocative act murder doctrine arose as an alternative to felony-murder liability in circumstances where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. A provocative act murder case necessarily involves at least three people—the perpetrator of the underlying offense, an accomplice, and a victim of their crime.

Authority:

People v. Taylor (2025) 108 Cal.App.5th 849, 861, 866

People v. Clark (2016) 63 Cal.4th 522

People v. Banks (2015) 61 Cal.4th 788

People v. Antonelli (2025) 17 Cal.5th 719, 727

Third Holding:

SB 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 842-844

Fourth Holding:

This court will ignore the findings purportedly made by the trial court following the remand from the court in the earlier appeal, as they were outside the scope of the remittitur. The remittitur defines the scope of the trial court’s jurisdiction to act, and action which does not conform to the reviewing court’s directions is unauthorized and void. Trial courts are bound by the directions given by a reviewing court and have no authority to retry any other issue or to make any other findings; the court’s authority is limited wholly and solely to following the directions of the reviewing court.

Authority:

In re J.M. (2024) 103 Cal.App.5th 745, 755

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. The requisite malice may be express or implied. Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The defendant’s life-endangering act must proximately cause the victim’s death and to suffice for implied malice murder, the defendant’s act must involve a high degree of probability that it will result in death.

A relevant life-endangering act is one that proximately causes the victim’s death. It is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of the victim and without which the death would not occur.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988-989

People v. Cervantes (2016) 26 Cal.4th 860, 866

Sixth Holding:

Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990

Seventh Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, 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.

The direct aider and abettor must, therefore, act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death. Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim.

The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-992

People v. Collins (2025) 17 Cal.5th 293, 311

People v. Curiel (2023) 15 Cal.5th 433, 468

Eighth Holding:

We remand the case with directions to grant the petition and resentence defendant on the underlying offense of robbery.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137, fn. 3 [Granting the petition for resentencing, as opposed to ordering a new evidentiary hearing, may be the appropriate remedy where a petitioner successfully demonstrates no substantial evidence supports the denial of a section 1172.6 petition even considering erroneously admitted evidence at an evidentiary hearing]

Amelioration, Elements of crime, Sentencing

Case 000607

Posted on by Gary McCurdy

Error and/or relief

Because the prior strikes were incurred before the AB 333 amendments to criminal gang activity laws, and were dependent on gang activity findings made under the old law, the sentence is reversed and the matter is remanded for the court to determine whether those prior convictions would still be considered strikes under the current law on gang activity crimes.

Holding:

Effective January 1, 2022, AB 333 (2021–2022 Reg. Sess.) significantly modified the elements of gang-related offenses and enhancements. After appellant was sentenced, the California Supreme Court issued its opinion in Fletcher. In Fletcher, the high court held that when a defendant has a conviction under the prior version of section 186.22, whether that conviction still qualifies as a prior serious felony for purposes of the “Three Strikes” law and prior serious felony enhancements must be viewed under the current version of section 186.22. Because the sentence is vacated, the court shall conduct a full resentencing consistent with current law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

People v. Buycks (2018) 5 Cal.5th 857, 893

Amelioration, Elements of crime, Sentencing, Standard of review

Case 000604

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s motion under section 1172.6 to recall his sentence on his 1999 murder convictions (he had hired someone to kill his father, and that person also killed the defendant’s mother in the process, all while the defendant was away from the home in which they were killed). We conclude the defendant’s acquittal on first degree murder of his mother precluded a finding that he had intended to kill her. We remand for the court to consider whether he remains guilty of his mother’s murder under a theory of implied malice. In doing so, the court should consider his youth at the time of the offense.

First Holding:

The defendant hired a person to kill the defendant’s father. The hiree did so, but also killed the defendant’s mother. The jury convicted the defendant of first degree murder of the father, but of only second degree murder of his mother. In our view, the defendant’s acquittal of first degree murder as to the mother precluded a finding that he intended to kill her. First degree murder generally requires a premeditated and deliberate intent to kill. Second degree murder requires either an intent to kill without premeditation and deliberation or implied malice—conscious disregard for human life.

Authority:

People v. Whisenhunt (2008) 44 Cal.4th 174, 201

People v. Knoller (2007) 41 Cal.4th 139, 151–152

Second Holding:

After the defendant’s trial, the Legislature amended the law of murder to eliminate liability based on imputed malice, including the natural and probable consequences doctrine. Section 1172.6 provides retroactive relief to defendants convicted under those now-invalid theories. Under principles of collateral estoppel, a jury’s finding at trial precludes a contrary finding in a section 1172.6 hearing.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723–724

People v. Arnold (2023) 93 Cal.App.5th 376, 385-386 [discussing collateral estoppel]

Third Holding:

We review the trial court’s factual findings in denying a section 1172.6 petition for substantial evidence. But the preclusive effect of a defendant’s partial acquittal is a legal issue we review de novo.

Authority:

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Fourth Holding:

We presume the jury meticulously followed the trial court’s instructions. We thus conclude the jury found that that the defendant lacked an intent to kill the mother, precluding the trial court’s contrary finding.

Authority:

People v. Cruz (2001) 93 Cal.App.4th 69, 73

Fifth Holding:

The erroneous finding was not harmless. Although the record could have supported liability under a theory of implied malice, the trial court did not evaluate that theory and we cannot conclude it would have reached the same result if it had. The defendant was 19 years old at the time of the crimes—still on the lower end of the young adult age range. Recent decisions have emphasized that youths may be less able to appreciate risks and consequences and thus that courts must consider defendants’ youth in deciding if they acted with implied malice or reckless indifference.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004, 1007

People v. Pittman (2023) 96 Cal.App.5th 400, 416–418

Jurisdiction, Sentencing, Standard of review

Case 000602

Posted on by Gary McCurdy

Error and/or relief

Although the trial court had the jurisdiction to correct clerical errors, it had no jurisdiction after the judgment was final to correct judicial errors. Thus, it had no jurisdiction to set aside the credit for time served that it had awarded years earlier. The order eliminating the credits must be vacated.

(Because the new offenses were committed in prison while serving an earlier commitment, the new sentence was required to run consecutively, and he was not entitled to credit for time while serving his term on the original offense to be applied against the new consecutive sentence. Nonetheless, the court originally awarded him nearly two years credit for time served.)

First Holding:

The question whether the trial court had jurisdiction to eliminate custody credits after a final judgment is a pure question of law we review de novo.

Authority:

People v. Camp (2015) 233 Cal.App.4th 461, 467

Second Holding:

Under the general common law rule, a trial court loses jurisdiction to resentence a criminal defendant once execution of the sentence has begun. While there are some exceptions to that rule, none justifies the court’s elimination of the defendant’s custody credits.

Authority:

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

Third Holding:

A court has inherent power to correct a clerical error at any time. Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here, the trial court’s orders imposing the custodial credits in 2010, 2021, and again in 2024 were plainly judicial—not clerical—errors.

Authority:

In re Candelario (1970) 3 Cal.3d 702, 705

People v. Boyd (2024) 103 Cal.App.5th 56, 63

In re Rojas (1979) 23 Cal.3d 152, 154

Fourth Holding:

Section 1172.1(a)(1) does not apply here, because (1) it was not the Caliofrnia Department of Corrections and Rehabilitation secretary who sent the letter pointing out the errors, but a records analyst who sent the letter; (2) the sentencing was not within 120 days of the date of commitment; and (3) the request did not relate to a change of sentencing laws since the original sentencing. Moreover, the sentence was in fact greater than the original sentence.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [letter came from a case records manager, not the secretary and did not reference section 1172.1 or use the terms recall or resentencing]

People v. Singleton (2025) 113 Cal.App.5th 783, 791–792

Fifth Holding:

Regarding jurisdiction to correct an unauthorized sentence, we find King to be a better reasoned case than Codinha. King reasoned that the “venerable notion” that an unauthorized sentence may be corrected at any time had been rejected by the Supreme Court in In re G.C.. The unauthorized sentence doctrine is an exception to the waiver doctrine, in that a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court. It is not, however, an exception to the requirement of jurisdiction. Rather, in order to invoke the unauthorized sentence doctrine to remedy a judgment of conviction, the trial court must still have jurisdiction over the judgment.

Authority:

People v. King (2022) 77 Cal.App.5th 629, 635

In re G.C. (2020) 8 Cal.5th 1119, 1129

People v. Boyd (2024) 103 Cal.App.5th 56, 66

People v. Garcia (2025) 114 Cal.App.5th 139, 145–146

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1123

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Amelioration, Evidence, Fifth Amendment, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000601

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from the denial of a petition for recall of sentence under section 1172.6. We conclude there is substantial evidence to support the trial court’s finding the defendant is guilty of murder, beyond a reasonable doubt, under a still-valid theory, and reversal for resentencing is unwarranted. As for the defendant’s evidentiary challenges, however, we hold the trial court prejudicially erred in admitting and relying on the grand jury transcript and police reports. As a result, we vacate the trial court’s order, and remand the matter for a new evidentiary hearing.

First Holding:

SB 1437 was enacted to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. Through section 1172.6, it provided a means of relief for those whose convictions would no longer be considered murder under the revised law.

Authority:

SB 1437

PEN 1172.6

Second Holding:

In the context of an appeal from a criminal conviction where substantial evidence does not support a conviction, the remedy is generally not a new trial. The sufficiency of the evidence is considered by examining the whole record in the light most favorable to the judgment and deciding whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272 [the federal and California Constitutions preclude retrial if a court determines the evidence at trial was insufficient to support a conviction as a matter of law]

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Navarro (2021) 12 Cal.5th 285, 311

Third Holding:

The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that he has been convicted through a judicial process which is defective in some fundamental respect.

Thus, as a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684,

People v. Hernandez (2003) 30 Cal.4th 1, 6

Fourth Holding:

Although principles of double jeopardy are not implicated in the voluntary section 1172.6 petition process, an insufficient evidence claim, coupled with additional challenges to the admission of evidence, may give rise to an issue of remedy.

If, considering the whole record in the light most favorable to the judgment, there is no substantial evidence to support the trial court’s denial of the section 1172.6 petition after an evidentiary hearing, it signals a substantive failure of proof by the government much like it does in the context of a direct appeal from a criminal conviction, suggesting reversal for resentencing is the appropriate remedy. Under 1172.6(d)(3) if the prosecution fails to sustain its burden of proof, the petitioner shall be resentenced.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1068

People v. Emanuel (2025) 17 Cal.5th 867, 875, 896 [directing resentencing be granted on remand where insufficient evidence supported denial of sec. 1172.6 petition after an evidentiary hearing]

Fifth Holding:

On the other hand, a prejudicial procedural error (such as an evidentiary error), on its own, typically signals nothing about whether the petitioner is or is not guilty of murder under the law as amended by SB 1437, but points only to a flawed judicial process. In cases involving only this latter situation, remand for a new evidentiary hearing is ordinarily the appropriate remedy. This remedy is especially apt in the context of section 1172.6, which was created by the Legislature as an act of lenity.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137 & fn. 3 [in the absence of a substantial evidence challenge, prejudicial evidentiary errors warrant remand for a new evidentiary hearing rather than remand for resentencing]

People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227, 1255 [remanding for a new evidentiary hearing where trial court impermissibly relied on evidence admitted at the petitioner’s trial that contradicted jury findings]

People v. Nuno (2024) 105 Cal.App.5th 1030, 1062–1063 [conditionally reversing denial of sec. 1172.6 petition after evidentiary hearing to permit the trial court to reconsider discovery motion, and to order a new evidentiary hearing if additional evidence disclosure was warranted]

People v. Hill (2024) 100 Cal.App.5th 1055, 1067–1068 [sentence modification procedure under sec. 1172.6 is an entirely voluntary process and constitutes an act of legislative lenity, not a new criminal prosecution]

Sixth Holding:

The grand jury transcript is not admissible under section 1172.6(d)(3)’s exception for evidence previously admitted at a prior hearing or trial.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116

Seventh Holding:

Since Davenport and Cody, appellate courts have considered whether section 1172.6(d)(3)’s hearsay exception extends to transcripts from grand jury proceedings. In Ocobachi, the court held it did not. The court explained the existing hearsay exception for former testimony found in Evidence Code section 1291 requires a showing of witness unavailability) and that the party against whom the former testimony was offered had been given the right and opportunity to cross-examine the declarant.

Unlike former testimony given during a petitioner’s preliminary hearing or original trial, Ocobachi pointed out the person investigated at a grand jury proceeding is not a party but a target who has no right to appear or offer evidence at grand jury proceedings. Thus, unlike in Davenport and Cody, admitting a transcript of grand jury testimony under section 1172.6(d)(3) would require ignoring both provisions of Evidence Code section 1291, creating an overbroad hearsay exception. In contrast, Robinson [review granted] concluded that the grand jury transcript may be considered at the section 1172.6 hearing.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158–1159

People v. Cody (2023) 92 Cal.App.5th 87, 103

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1183

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted Feb. 26, 2025, S288606

Eighth Holding:

The proper interpretation of a statute is a question of law we review de novo. We consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Ninth Holding:

Grand jury proceedings are not adjudicative, unlike hearings and trials in a criminal proceeding, nor are they adversarial. Rather, they are investigatory proceedings: a judicial officer does not typically preside over grand jury proceedings; a defendant does not receive notice of grand jury proceedings; and a defendant has no right to appear, offer evidence, or cross-examine witnesses. Despite similarities in their function, unlike preliminary hearings, grand jury proceedings are one-sided investigatory proceedings.

Authority:

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Petrilli (2014) 226 Cal.App.4th 814, 824

People v. Arroyo (2016) 62 Cal.4th 589, 595

Tenth Holding:

It would be anomalous for the Legislature to have amended the statute under SB 775 to tighten the evidentiary rules by excluding preliminary hearing testimony under section 872(b) [which allows a magistrate to find probable cause at a preliminary hearing based on the testimony of a qualified law enforcement officer that would otherwise be excluded as inadmissible hearsay], which is subject to cross-examination, but not exclude similar section 939.6(c), testimony received at a grand jury proceeding, which is untested by cross-examination.

Authority:

People v. Ledesma (1997) 16 Cal.4th 90, 101 [in construing statutes, courts should strive to avoid anomalous results]

Eleventh Holding:

We agree with the parties that the police reports and related witness statements collected by the police are hearsay because they were created out of court and were offered (and considered) for the truth of the matter asserted. These documents also contain out-of-court statements of witnesses that constitute another layer of hearsay when offered for the truth of the matter asserted.

While there may be an applicable exception for some of the information contained in the police reports, there must also be a hearsay exception for out-of-court witness statements recorded in the documents that were considered for the truth of the matter asserted. Many of the findings taken from the police reports involved nonparty witness statements recorded by the police that were considered for the truth of the matter asserted, but no hearsay exception was identified

Authority:

EVID 1200(a)[hearsay is an out-of-court statement offered to prove that its assertion is true]

People v. Hall (2019) 39 Cal.App.5th 831, 844–845 [arrest report admissible under official records exception to hearsay rule to the extent it reported an act, condition, or event observed by law enforcement pursuant to Evid. Code sec. 1280]

Walker v. Superior Court (2021) 12 Cal.5th 177, 192 [observing the general rule that each level of out-of-court statements in documents such as probation and police reports must fall under a hearsay exception to be admitted into evidence]

Twelfth Holding:

Judicial notice extends only to notice of the document’s existence, not necessarily to the truth of the facts contained within a document. Judicial notice of a document is not a vehicle for the admission of hearsay contained within the document.

Authority:

People v. Moore (1997) 59 Cal.App.4th 168, 178

People v. Woodell (1998) 17 Cal.4th 448, 458–459 [the fact that a document may be judicially noticed under Evid. Code sec. 452 does not mean all the hearsay statements within the document are admissible or noticeable]

Thirteenth Holding:

Prejudice is shown where it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.

Authority:

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

Fourteenth Holding:

On other questions the defendant has asked us to address, we decline to do so in light of the remand and reversal. As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.

Authority:

People v. Slayton (2001) 26 Cal.4th 1076, 1084