Tag Archives: Right to counsel

Duty of counsel, Sixth Amendment, Standard of review

Case 000740

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding the defendant knowingly and intelligently waived his right to counsel.

First Holding:

A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. The Sixth Amendment guarantees a defendant a right to counsel but also allows him to waive this right and to represent himself without counsel.

Authority:

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

Second Holding:

In any case in which a Faretta request for self-representation has been made, the court must evaluate two countervailing considerations: on one hand, the defendant’s absolute right to counsel, which must be assiduously protected; on the other hand, the defendant’s unqualified constitutional right to discharge counsel if he pleases and represent himself.

The right to representation by counsel persists until a defendant affirmatively waives it, and courts indulge every reasonable inference against such waiver.

The waiver of counsel must be knowing and voluntary—that is, the defendant must actually understand the significance and consequences of the decision, and the decision must be uncoerced. The purpose of the knowing and voluntary inquiry is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Sullivan (2007) 151 Cal.App.4th 524, 545

People v. Marshall (1997) 15 Cal.4th 1, 20 [Courts must indulge every reasonable inference against waiver of the right to counsel]

Third Holding:

When confronted with a request for self-representation, a trial court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

Nevertheless, no particular form of words is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.

Authority:

People v. Dent (2003) 30 Cal.4th 213, 217–218

Faretta v. California (1975) 422 U.S. 806,. 835

People v. Lawley (2002) 27 Cal.4th 102, 140

Fourth Holding:

On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation. The defendant bears the burden of affirmatively demonstrating the waiver was invalid.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Fifth Holding:

In Jackio, the court held that trial courts are required to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself.

In Bush, the court distinguished Jackio and held that, while the better practice would be to inform the accused, on the record, of the maximum sentence, including any maximum monetary fine that could be imposed on a conviction, we have not found any case specifically concluding that an advisement on this point is a constitutional minimum in every case.

Authority:

People v. Jackio (2015) 236 Cal.App.4th 445, 454

People v. Bush (2017) 7 Cal.App.5th 457, 473

Sixth Holding:

It is not entirely clear whether the invalid waiver is structural error that is reversible per se or whether the error should be reviewed for prejudice under the standard of Chapman, under which error is reversible unless harmless beyond a reasonable doubt.

We need not resolve that question because, even if the error was not structural, respondent has not shown the error was harmless beyond a reasonable doubt. The evidence against appellant was overwhelming. There is certainly a reasonable possibility that, faced with a sentence three times longer than he initially had in mind and with no plausible defense to the charges, appellant would have opted to forgo self-representation. And there is also a reasonable possibility appointed counsel could have negotiated a plea agreement with the prosecution that would have resulted in a sentence less than that appellant received.

Authority:

People v. Burgener (2009) 46 Cal.4th 231, 244 [acknowledging but not resolving split of authority]

People v. Ruffin (2017) 12 Cal.App.5th 536, 549

Amelioration, Discretion, Eighth Amendment, Juveniles, Sentencing, Standard of review, Statutory interpretation

Case 000574

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition under section 1170(d) for recall of his sentence. The trial court did not appoint counsel and summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation for at least 15 years as required by section 1170(d)(1)(A). We find the trial court’s ruling on the calculation of appellant’s period of incarceration was erroneous as a matter of law, and appellant’s preconviction custody must be included to calculate he had been incarcerated for 15 years when he filed his section 1170(d) petition.

The matter is remanded for the superior court to appoint counsel and conduct the hearing as provided in section 1170(d).

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing, if the defendant meets additional statutory requirements.

Authority:

PEN 1170(d)

Second Holding:

When a trial court is not aware of the full scope of its sentencing discretion, a defendant is entitled to a remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

People v. Lynch (2024) 16 Cal.5th 730, 771-772

Third Holding:

The empanelment of separate juries at the defendant’s original trial in 2010 was likely based on Aranda and Bruton. Broadly stated, the Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. The problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

Authority:

People v. Aranda (1965) 63 Cal.2d 518

Bruton v. United States (1968) 391 U.S. 123

People v. Gallardo (2017) 18 Cal.App.5th 51, 68

People v. Jackson (1996) 13 Cal.4th 1164, 1208

People v. Washington (2017) 15 Cal.App.5th 19, 27

Fourth Holding:

Appellant filed his petition based on the recall and resentencing provisions of section 1170(d), effective January 1, 2013. Under Graham, the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. In response to Graham, the Legislature enacted section 1170(d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms.

Authority:

In re Kirchner (2017) 2 Cal.5th 1040, 1049

People v. Gibson (2016) 2 Cal.App.5th 315, 322–323

Graham v. Florida (2010) 560 U.S. 48

People v. Sorto (2024) 104 Cal.App.5th 435, 442

Fifth Holding:

On appeal, we review statutory interpretations de novo. We review the trial court’s factual findings to determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032

People v. Millard (2009) 175 Cal.App.4th 7, 26

Sixth Holding:

Absent a specific statutory definition of “has been incarcerated for at least 15 years” we may look to its plain meaning as understood by the ordinary person, which would typically be a dictionary definition. The Legislature did not use the word sentenced in section 1170(d)(1)(A). Instead, it used the word “incarcerated.”

Based on the plain meaning of “incarcerated,” the defendant’s period of incarceration for purposes of a section 1170,(d)(1)(A) began to run on the date the defendant was placed in jail, i.e., incarcerated, for the relevant charges.

Authority:

People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031, 1032

Seventh Holding:

Section 1171 expressly addresses the trial court’s procedures in postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute. It defines a postconviction proceeding to mean a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. Section 1171(c)(1) states that upon receiving a request to begin a postconviction proceeding that is authorized in law, the court shall consider whether to appoint counsel to represent the defendant. This section does not prevent the court from assigning counsel at a later time.

Authority:

PEN 1171

Amelioration, Duty of the court, Sentencing, Sixth Amendment

Case 000450

Posted on by Gary McCurdy

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

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

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

People v. Coddington (2023) 96 Cal.App.5th 562, 568 [same]

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

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

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

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

Duty of the court, Jury trial, Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

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

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. 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 a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. the aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

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

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

Seventh Holding:

Such an error is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

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

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

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