Tag Archives: Right to be present

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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 presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

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

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Due process, Duty of the court, Sentencing, Sixth Amendment, Standard of review

Case 001048

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.

First Holding:

CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.

Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.

The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.

Authority:

U.S. Const., Sixth Amend. and Fourteenth Amend.

Calif. Const., art. I

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

Second Holding:

This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Third Holding:

The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Fourth Holding:

On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]

People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4

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

Sentencing

Case 000929

Posted on by Gary McCurdy

Error and/or relief

The defendant’s presence at his resentencing hearing was not waived. We therefore reverse and remand to the trial court for resentencing in accordance with the defendant’s constitutional right to be present.

First Holding:

A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by [Penal Code] sections 977 and 1043. This right extends to all critical stages of the criminal prosecution and includes sentencing and resentencing.

Authority:

Cal. Const. art. I, sec. 15

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Second Holding:

The right to be present may be waived. However, pursuant to section 977(b)(1) and (2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he or she executed a written waiver of his or her right to be present or the waiver was properly entered orally on the record.

Section 977 lays out specific requirements for the waiver to be held valid. The right to be present at the imposition of sentence includes the right to be present at a resentencing hearing because the trial court has discretion to reconsider the entire sentence on remand for resentencing.

Authority:

People v. Concepcion (2008) 45 Cal.4th 77, 82

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Third Holding:

When errors involving a defendant’s federal constitutional rights are implicated, the standard set forth in Champman applies and the error is prejudicial and requires reversal unless we can conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding.

Authority:

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

People v. Velasco, 97 Cal.App.5th 663, 674

Fourth Holding:

On the facts before us, we are unable to conclude that the error in conducting a resentencing hearing in the defendant’s absence without a valid waiver of his presence was harmless beyond a reasonable doubt. As in Velasco and Cutting, because the defendant was not physically present at resentencing, he was unable to present any of these types of argument. Nor could he directly address the court or aid his attorney, perhaps by providing new and updated information or circumstances justifying a more lenient sentence.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [resentencing court may consider any pertinent circumstances which have arisen since the prior sentence was imposed]

Duty of the court, Sentencing

Case: 000439

Posted on by Gary McCurdy

Error and/or relief

Relief is granted on this petition for writ of habeas corpus. The defendant is entitled to full resentencing under section 1172.75. In August 2022, pursuant to (now) section 1172.75, the trial court entered an order modifying petitioner’s judgment by dismissing the enhancements imposed pursuant to section 667.5(b). It is undisputed that petitioner was not notified of the court’s intent to modify the judgment, was not appointed counsel, was not notified of any court proceedings related to modification of the judgment, and did not appear at any such proceedings. It is also undisputed that the court did not conduct a full resentencing.

First Holding:

Effective January 1, 2022, what is now section 1172.75 declared invalid most sentence enhancements imposed pursuant to section 667.5(b). Once the Department of Corrections and Rehabilitation (CDCR) identifies a defendant serving a term for a judgment including a qualifying section 667.5(b) enhancement, the trial court is required to recall the sentence and resentence the defendant. The court is also required to appoint counsel.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Section 1172.75 creates a presumption that the resentencing shall result in a lesser sentence than the one originally imposed. It expressly requires the court to consider postconviction factors, including evidence that reflects that circumstances have changed since the original sentencing, and it guides the trial court in selecting among the lower, middle, and upper term on each count. In this case, the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion. It was proper for him to seek relief by way of petition for writ of habeas corpus under the circumstances in this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Rogers (2025) 108 Cal.App.5th 340, 359–361

In re Reno (2012) 55 Cal.4th 428, 449–450 [Frequently used to challenge criminal convictions already affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her freedom, such as a prisoner, to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review. A writ of habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate]

Due process, Duty of the court, Standard of review

Case: 000380

Posted on by Gary McCurdy

Error and/or relief

We review an order denying the defendants motion to vacate his conviction based on newly discovered evidence of factual innocence, pursuant to Penal Code section 1473.7(a)(2). We reverse the order because the defendant was entitled to a hearing in the trial court to consider his eligibility for relief under section 1473.7(d).

First Holding:

The construction and interpretation of a statute is a question of law that we consider de novo on appeal.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 975

Second Holding:

Section 1473.7 expressly provides that a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Persons who file a section 1473.7 motion are entitled to a hearing on the merits of the motion, per subdivision (d): “All motions shall be entitled to a hearing.” The plain language of section 1473.7 also entitles the moving party to be personally present at the hearing. However, upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.

Authority:

PEN 1473.7

Third Holding:

As to appointment of counsel on the defendant’s behalf, the trial court was required to determine whether his petition stated a prima facie case for relief. If a prima facie case has been made, appointment of counsel is demanded by due process concerns. Here, the trial court summarily denied the petition without addressing entitlement to counsel and whether the defendant had presented a prima facie case for relief. The court reviewed only a handwritten one-page motion that it determined fails to cite to a basis for the relief without reviewing the entirety of the defendant’s 42-page motion.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, 983

Appellate Principles, Duty of the court, Sentencing

Case: 000352

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not conducted a full resentencing under section 1172.75 after striking the now-invalid prior prison term enhancements and in conducting the hearing in the absence of the defendant without his express consent.

First Holding:

A defendant is entitled to a full resentencing hearing under section 1172.75.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [by its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements]

Second Holding:

Absent a valid waiver under section 977, defendant is entitled to be present physically or by remote appearance at resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Third Holding:

Resentencing under section 1172.75 ordinarily must be initiated by the California Department of Corrections and Rehabilitation (CDCR), by the CDCR notifying the trial courts—no later than December 31, 2023—of all incarcerated individuals who may be entitled to relief under the statute. Compare Burgess with Cota–two cases discussing different circumstances under which a defendant-initiated resentencing petition is improper, but the CDCR’s failure to notify trial court by deadline does not preclude full resentencing hearing. Here, it appears the trial court’s early, but incomplete action granting defendant some resentencing relief by striking his section 667.5(b) prison-prior terms in 2022 made it unlikely defendant would appear on the CDCR resentencing-eligibility lists submitted to the trial court in 2023. That defendant may have fallen through the cracks in this manner does not deprive him of full resentencing eligibility under section 1172.75. To the extent necessary for procedural regularity, we deem defendant’s appeal here a petition for habeas corpus to secure the resentencing hearing the People concede is necessary.

Authority:

PEN 1172.75(b) and (c)

People v. Burgess (2022) 86 Cal.App.5th 375, 379-382

People v. Cota (2025) 112 Cal.App.5th 1118, 1131

People v. Boyd (2024) 103 Cal.App.5th 56, 71-72 [appeal may be treated as a habeas corpus petition in the interest of judicial economy]

Due process, Sentencing

Case: 000248

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
At the resentencing hearing ordered as result of a the prior appeal, the trial court erred by resentencing the defendant without his personal presence, failing to conduct a full resentencing, and miscalculating his credits for time served.

[Gary note: the opinion indicates that the abstract following the remand was incorrect, that an amended abstract filed thereafter was incorrect in other respects, and a new amended abstract contained several errors–including in the minute order that the defendant had waived his presence, yet there was nothing in the reporter’s transcripts to indicate he had waived his presence. I reiterate a comment I made in an earlier post: Counsel really should examine the abstracts of judgment carefully, whether the defendant was the client at the trial level or at the appellate level.]

First Holding:

A defendant has a constitutional right to be present at all critical stages of the criminal prosecution, i.e., all stages of the trial where his absence might frustrate the fairness of the proceedings. The defendant’s right to be present includes at a resentencing hearing.

Authority:

People v. Rodriguez (1998) 17 Cal.4th 253, 260 [right to presence following remand to consider dismissing strike]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Second Holding:

Section 977 requires that a felony defendant shall be physically present at the time of the imposition of sentence. It allows a defendant to waive their physical presence only for other proceedings.

Authority:

PEN 977(b)(1)

Third Holding:

Notwithstanding section 977, waiver of personal appearance at felony sentencing is permitted by section 1193 if the defendant, in open court and on the record or in a notarized writing, requests that judgment be pronounced against the defendant in his or her absence. This provision applies to resentencing following an appellate court remand. But the defendant did not waive his right to be present at sentencing in open court or by a notarized writing. Accordingly, the trial court erred when it resentenced him without his personal presence.

Authority:

PEN 977(b)(1)

People v. Cutting (2019) 42 Cal.App.5th 344, 345-346

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414

Fourth Holding:

At the resentencing, the trial court failed to update the defendant’s custody credits. The amended abstract must include credit for actual days in custody after the original sentencing until the date of resentencing. On remand, the trial court must calculate the actual time in prison; the determination of prison conduct credits is left to the prison administration

Authority:

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1418

People v. Honea (1997) 57 Cal.App.4th 842, 845, disapproved on other grounds in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.

Fifth Holding:

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.

Authority:

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

Sixth Holding:

Although we concluded in the first appeal that the trial court did not abuse its discretion when it denied the motion to dismiss the strike pursuant to Romero, supra, 13 Cal.4th 497, the trial court on resentencing had jurisdiction to reconsider that ruling.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rodriguez (1998) 17 Cal.4th 253, 260

Amelioration, Sentencing

Case: 000191

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to sentencing relief under section 1172.75 for prior prison term enhancements which were imposed and stayed. Absent a valid waiver of his presence, defendant is entitled to be present at his resentencing hearing on remand.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for enhancements for certain sexually violent offenses, is legally invalid. If a prior prison term enhancement becomes invalid under the section, a trial court shall recall the sentence and resentence the defendant, and, in doing so, shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

[Gary note: This opinion was filed before Espino was decided. It is not applicable here because the prior conviction was stayed. But I think it is important to know the current complete state of the law. Rhodius dealt solely with prior convictions whose punishment was stayed, deferring the question whether section 1172.75 applies to prior convictions that were stricken. On July 2, 2026, the Supreme Court answered that question in People v. Espino (2026) ___ Cal.5th ___ (S286987). It held that section 1172.75 applies to those prior convictions that were stricken at time of sentencing. This is not discussed in the summary above because the trial court had relied the prior conviction having been stayed, not stricken, which was directly addressed by Rhodius.]

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

[People v. Espino (2026) ___ Cal.5th ___ (S286987)]

Third Holding:

By its own terms, section 1172.75 ensures the defendant’s right to be present, represented by counsel, and present evidence at the hearing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673-674

Abstracts and Minutes, Amelioration, Sentencing

Case: 000158

Posted on by Gary McCurdy

Error and/or relief

Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.

First Holding:

Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.

Authority:

PEN 1172.6

Second Holding:

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532

People v. Basler (2022) 80 Cal.App.5th 46, 57

People v. Jackson (2025) 110 Cal.App.5th 128, 150-151

Third Holding:

The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.

Authority:

Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668

Fourth Holding:

Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.

Authority:

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

People v. Nieves (2021) 11 Cal.5th 404, 461

People v. Mendoza (2016) 62 Cal.4th 856, 902