Tag Archives: Sentencing

Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment

Case 000702

Posted on by Gary McCurdy

Error and/or relief

Defendant’s sentence is vacated, and the matter is remanded for resentencing with directions that the trial court exercise its sentencing discretion without considering aggravating factors that were not found true by the jury.

First Holding:

The court relied on circumstances in aggravation that were not submitted to the jury. The trial court’s authority to impose an upper term sentence is addressed in section 1170(b), which authorizes an upper 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 by the jury or by the judge in a court trial.

There was no objection, and the upper term sentence could have been imposed based on only the aggravating factors of victim vulnerability and taking advantage of a position of trust, which were found true by the jury. Therefore, the upper term is not a sentence that could not lawfully be imposed under any circumstance in the particular case.

Thus, the unauthorized sentence exception to the forfeiture rule may not apply under the facts in this case. However, to forestall a future claim of ineffective assistance of counsel, we exercise our discretion to excuse any possible forfeiture and address defendant’s claim on the merits.

Authority:

PEN 1170

People v. Scott (1994) 9 Cal.4th 331, 354, 355–356 [holding defendant waived claim that trial court abused its discretion in aggravating his sentence based on factors that were inapplicable, duplicative, and improperly weighed]

People v. Achane (2023) 92 Cal.App.5th 1037, 1043

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6

Second Holding:

Section 1170(b) triggers the Sixth Amendment jury trial right with respect to every aggravating factor (other than a prior conviction) the trial court uses to justify an upper term sentence, and under the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Third Holding:

Such a violation 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 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 Chapmn standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Fourth Holding:

Applying these principles, we find the trial court erred in relying on the defendant’s continuing failure to take accountability for his actions. This additional aggravating factor was not decided by the jury but, rather, was a conclusion made by the trial court based on both defendant’s trial testimony and his continuing claim of innocence at sentencing.

Although the jury did not believe defendant’s testimony as to six of the nine counts charged, it was never asked to decide the issue of his lack of accountability, and since the jury was excused before sentencing, it obviously could not have made a finding that defendant continued to fail to take accountability. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

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

Fifth Holding:

The People did not prove, and could not have proved, a lack of remorse or lack of accountability without burdening defendant’s constitutional right to testify at trial and maintain his innocence.

Authority:

People v. Key (1984) 153 Cal.App.3d 888, 900 [lack of remorse may not be used as aggravating factor when defendant denies guilt and evidence is conflicting]

People v. Bonilla (2007) 41 Cal.4th 313, 356 [at penalty phase of capital crime prosecutor may properly comment on a defendant’s lack of remorse as relevant to whether remorse is present as a mitigating circumstance but may not suggest that lack of remorse is an aggravating factor]

Abstracts and Minutes, Appellate Principles, Gary Musings, Jurisdiction, Sentencing

Case 000701 and Gary Musings

Posted on by Gary McCurdy

Error and/or relief

The court erred when it failed to order joint and several liability for the victim’s restitution. The co-defendant was tried separately and sentenced by a different judge in an earlier proceeding.

First Holding:

In the co-defendant’s proceedings, the court ordered joint and several liability for the victim’s restitution, but in sentencing the defendant in this proceeding, the court (a different judge) made no mention of joint and several liability. A joint and several direct victim restitution order under section 1202.4(f) is not expressly permitted by statute, but is also not prohibited. The trial court therefore has discretion to make the obligation of multiple codefendants joint and several.

Authority:

People v. Arnold (1994) 27 Cal.App.4th 1096, 1099

People v. Neely (2009) 176 Cal.App.4th 787, 800

People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051–1052

Second Holding:

A restitution order is intended to compensate the victim for the actual loss he or she incurred; however, it is not intended to provide the victim with recovery greater than that amount. When multiple defendants are culpable, the issue of double recovery is avoided when the trial court holds codefendants jointly and severally liable for the full amount of a crime victim’s economic loss.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172

People v. Fortune (2005) 129 Cal.App.4th 790, 794–795

People v. Leon (2004) 124 Cal.App.4th 620, 622 [a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Third Holding:

An abstract of judgment may be modified to reflect that the victim restitution order is a joint and several obligation.

Authority:

People v. Cornejo (2016) 3 Cal.App.5th 36, 43

People v. Neely (2009) 176 Cal.App.4th 787, 800–801 [ordering modification of the judgment to expressly state that the restitution order is joint and several as to the defendant and the codefendant]

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [to avoid double recovery, appellate court modified judgment to provide expressly that the direct victim restitution ordered is joint and several]

Fourth Holding:

As a matter of equity, and because there is no double recovery, the matter should be remanded so that the court can modify the restitution order to make liability joint and several. Section 1202.46 confers continuing jurisdiction to modify an order for victim restitution.

Authority:

PEN 1202.46

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

Gary Musings, Triggered By Third Holding:

Gary Musings note: I think the “Third Holding” and the authorities cited by the court demonstrate a prime example of the importance of reading the cases cited, and do not simply rely on what I have written in these summaries. A critical component of this decision that causes me pause is that the trial court did NOT make an order for joint and several liability; it apparently made no comment on it at all. This is not a case where the record shows that the court did so order but the order didn’t get reported properly in the abstract of judgment or minute order. It is not a case where the judge made comments indicating an intent to order joint and several liability, but the order was not expressed by the court. This is a case where the judge simply gave no indication at all regarding joint and several liability with the co-defendant who had been sentenced in a different proceeding.

First, I do not doubt that the Court of Appeal has the authority to modify the judgment OR the abstract of judgment. Section 1260 states, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

But if I had submitted a brief that relied on the Cornejo, Neely, and Blackburn cases as authority for the court to actually change a judgment by ordering modification of the abstract of judgment, I think I could legitimately expect the opposition to point out the following rebuttals.

(A.) One cannot tell from the Cornejo decision whether the trial court had ordered joint and several liability but it wasn’t reflected in the abstract, or whether the trial court was silent and the appellate court simply modified the judgment by modifying the abstract (which is what happened in this Case 000701). Thus, we cannot determine whether the modification simply recorded the actual order in the abstract of judgment or the appellate modified the judgment. We don’t know.

(B.) In Neely, the trial court DID order joint and several liability, and the abstract simply did not reflect that, so the appellate court ordered the abstract amended to reflect what the trial court ordered. (That is NOT what happened in this Case 000701.)

(C.) In Blackburn–a case somewhat similar to this Case 000701 in that both defendants were sentenced at different times–the appellate court concluded that the trial court DID intend joint and several liability. Blackburn said, “The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. It seems glaringly obvious that is what it did here. In this light, there is no double recovery; nor is Jackson entitled to have Blackburn’s restitution obligation credited against his. Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.”

In other words, Blackburn approached it by clarifying what was “glaringly obvious”–that the trial court actually did order joint and several liability.

I think this points out the importance of actually reading the cases that you, as the defense attorney, intend to rely on, AND of actually reading the cases that your opposition cites.

And don’t stop there. Suppose Case 000701 was actually a published opinion, and you wanted to rely on it to get the appellate court in your client’s case to modify the abstract of judgment. If all you cited was the published decision in People v. Case 000701, you MIGHT prevail. But if your opposing party delved deeper, it could respond with an argument discounting the authority of People v. Case 000701, because Case 000701 (arguably) relied on cases that were not authority because they really did not have the same situation as People v. Case 000701. Remember the appellate principle: A case is not authority for propositions not considered. (People v. Chavez (2020) 54 Cal.App.5th 477, 480).

 

Sentencing

Case 000700

Posted on by Gary McCurdy

Error and/or relief

It appears that the trial court miscalculated the defendant’s credit for time served. The matter is remanded for it to recalculate the credit. The People do not dispute that the custody credits may have been incorrectly calculated, but that the record is not clear as to the date of defendant’s release on bond. The People recommend a return to the trial court for it to recalculate the custody and conduct credits. Based on the People’s concession, we will order limited remand to the trial court to calculate presentence custody credits.

Holding:

Prisoners confined to jail prior to sentencing for a felony conviction are among those entitled to Penal Code section 4019 credits.

Authority:

People v. Duesler (1988) 203 Cal.App.3d 273, 275

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of the Three Strikes law.

The Supreme Court concluded that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Appellate Principles, Sentencing

Case 000698

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall under section 1172.6 on the grounds that he had previously filed a petition that was denied. Because the record demonstrates that the defendant is prima facie eligible for relief under case law that has emerged since his original petition was denied in 2020, we remand the matter to the trial court with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6(d).

First Holding:

Although the elements of collateral estoppel are satisfied, an equitable exception to that doctrine arises when there has been a significant change in the law since the initial ruling that warrants reexamination of the issue.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454

Second Holding:

In 2018, the Legislature, through SB 1437, amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. In 2021, through SB 775 the Legislature clarified that the amendments made by SB 1437 were also intended to eliminate any other theory of imputed-malice murder liability.

A defendant seeking relief under section 1172.6 must attest to the following: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of murder under which malice is imputed to a person based solely on that person’s participation in a crime. (2) The petitioner was convicted of murder following a trial at which the petitioner could have been convicted of murder. (3) The petitioner could not presently be convicted of murder under current law.

Upon receipt of a facially sufficient petition, the trial court shall appoint counsel for petitioner if requested. The trial court then assesses whether the petitioner is prima facie eligible for relief. If the court determines that the petitioner has made a prima facie showing of eligibility for relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Third Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. The doctrine is intended to protect litigants from the burden of relitigating an identical issue with the same party or his privy while promoting judicial economy by preventing needless litigation.

Collateral estoppel has five elements.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. While satisfaction of these elements is necessary to invoke the equitable doctrine of collateral estoppel, it is not always sufficient. Even if the elements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 451-452, 454

Fourth Holding:

In denying the defendant’s earlier petition, the court stated that at no time did the defense or prosecution argue the theory of natural and probable consequences at trial. The only homicide theory the parties argued to the jury] was that the defendant was an aider and abettor of a planned assassination. Three years after that denial of the petition, Lee held that, despite the prosecution (in Lee) arguing a single theory to the jury, the instructions were not so limited and permitted the jury to find the defendant guilty on a theory not argued by the prosecution.

The Lee court did not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because it did not have the full record before it. The Lee court was therefore unwilling to conclude, based solely on the prosecution’s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice. The same reasoning applies in the instant case.

Authority:

People v. Lee (2023) 95 Cal.App.5th 1164, 1188

Fifth Holding:

Lee constitutes a significant development or clarification of the law. Because the trial court did not have the benefit of Lee when it issued its order, foreclosing a re-examination of the defendant’s arguments would be unfair.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 454 [an exception to collateral estoppel is when there is a significant change in the law]

Duty of the court, Sentencing

Case 000696

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by refusing to recalculate the defendant’s credit for time served on resentencing, instead deferring to the Department of Corrections and Rehabilitation to make the calculation. The trial court was responsible for making this calculation.

First Holding:

Penal Code section 1237.1 requires that errors in the award of presentence custody credits be addressed to the sentencing court, even when the matter is pending on appeal. An erroneous credit calculation is an act in excess of the sentencing court’s jurisdiction and may be corrected by that court whenever brought to its attention.

Authority:

PEN 1237.1

People v. Wrice (1995) 38 Cal.App.4th 767, 770

People v. Jack (1989) 213 Cal.App.3d 913, 917

Second Holding:

The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing. The defendant was originally sentenced on in 2022 and was credited with 476 presentence custody credits. He was resentenced in 2025 with the same number of credits.

Where, as here, a prison term already in progress is modified, the resentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. There are [nearly 900] days between and including the original sentencing date and the resentencing date. Therefore, the defendant is entitled to actual credits of [more than 1350] days. The trial court was responsible for making this calculation.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Salgado (2022) 82 Cal.App.5th 376, 381

Sentencing

Case 000694

Posted on by Gary McCurdy

Error and/or relief

Where the defendant was convicted of being a felon in possession of a firearm and felony possession of ammunition, the court should have stayed the sentence on one of the counts under section 654.

First Holding:

Section 654(a), provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. This section precludes multiple punishment for a single act or omission, or an indivisible course of conduct. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Deloza (1998) 18 Cal.4th 585, 591

Neal v. State (1960) 55 Cal.2d 11, 20, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 334

Second Holding:

Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Sok (2010) 181 Cal.App.4th 88, 100

Probation Parole PRCS, Sentencing

Case 000692

Posted on by Gary McCurdy

Error and/or relief

The condition of probation requiring the minor to “report to your probation officer as directed and follow his or her orders” is unconstitutionally vague and overbroad and must be modified.

First Holding:

We review constitutional challenges to probation conditions de novo.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Second Holding:

A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Third Holding:

Courts may not delegate to probation officers the authority to set probation conditions. A probation officer has wide discretion to enforce court-ordered conditions and to give directives to a probationer, if those directives are reasonably related to previously imposed terms. The condition as drafted does not clearly demarcate the scope of the probation officer’s wide discretion to enforce the court’s conditions. To remove any ambiguity on this point, we will direct that the condition be modified to read “Report to [the probation officer] as directed and follow his/her orders related to the probation conditions imposed by the court.”

Authority:

In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373

People v. Smith (2022) 79 Cal.App.5th 897, 902 [While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.]

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

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

Fines and fees, Sentencing

Case 000685

Posted on by Gary McCurdy

Error and/or relief

When resentencing defendant under section 1172.75, the court reimposed the $400 restitution fine and a $400 suspended parole revocation fine originally imposed in 1999. The restitution fine must be vacated.

Holding:

Since the court originally imposed the restitution fine more than 10 years ago, section 1465.9(d) makes it now uncollectible and legally unenforceable.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S29503 on a different issue

Appellate Principles, Juveniles, Plea bargains, Sentencing

Case 000684

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred when it set minor’s maximum confinement term at 33 years plus 25 years to life. We modify the maximum term of confinement to 25 years eight months plus 25 years to life.

First Holding:

Effective January 1, 2019, the Legislature passed SB 1391. The amendment eliminated the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court jurisdiction. One year later, in 2020, the Legislature passed juvenile justice realignment through SB 823. It overhauled juvenile wardship law by closing the Division of Juvenile Justice and transferring jurisdiction over youthful offenders to counties, with the stated purpose of ensuring minors are closer to their families and communities and receive age appropriate treatment.

Authority:

WIC 707(a)

WIC 736.5

O.G. v. Superior Court of Ventura County (2011) 11 Cal.5th 82, 89

In re M.B. (2024) 99 Cal.App.5th 435, 448

In re T.O. (2022) 84 Cal.App.5th 252, 262–263

In re Miguel C. (2021) 69 Cal.App.5th 899, 907

Second Holding:

Section 875, effective May 14, 2021, was added as part of the juvenile justice realignment. Under the new scheme, commencing July 1, 2021, the court may order that a minor who is 14 years of age or older be committed to Secure Youth Treatment Facility if the minor meets certain criteria.

Authority:

WIC 875(a)

In re J.P. (2023) 94 Cal.App.5th 74, 78

Third Holding:

Section 875(b)(1) states the baseline term must be based on the most serious recent offense for which the minor has been adjudicated and shall represent the time in custody necessary to meet the developmental and treatment needs of the minor and to prepare the minor for discharge to a period of probation supervision in the community. The baseline term must be consistent with specified guidelines and may deviate by no more than six months.

Authority:

WIC 875(b)(1)

Fourth Holding:

In deciding minor’s placement, the juvenile court has maximum flexibility to craft suitable orders aimed at rehabilitating the particular minor before it.

Dispositional orders must conform with the purposes of juvenile delinquency laws, which are “twofold: (1) to serve the best interests of the delinquent minor by providing care, treatment, and guidance to rehabilitate the minor and enable him or her to be a law abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.

It must consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. A disposition hearing record should reflect evidence that the proposed means of rehabilitation will result in probable benefit to the minor, and that the goals of the juvenile law could not have been met by a less restrictive placement.

Authority:

In re James R. (2007) 153 Cal.App.4th 413, 432

In re Carlos J. (2018) 22 Cal.App.5th 1, 7

In re Michael D. (1987) 188 Cal.App.3d 1392

In re Miguel C. (2021) 69 Cal.App.5th 899, 906

In re Charles G. (2004) 115 Cal.App.4th 608, 614

In re Robert H. (2002) 96 Cal.App.4th 1317, 1329

Fifth Holding:

Plea bargains are an accepted and integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining is a common feature in juvenile delinquency proceedings, just as it is in criminal proceedings in adult court. Similar principles apply in both settings.

A plea bargain is a contract between the accused and the prosecutor. Both of these parties are bound to the terms of the agreement; when the court approves the plea bargain, it also agrees to be bound by its terms. Both the accused and the prosecution are entitled to the benefit of the plea bargain. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.

Authority:

People v. Collins (1978) 21 Cal.3d 208, 214

People v. Segura (2008) 44 Cal.4th 921, 929

In re Kenneth H. (2000) 80 Cal.App.4th 143 [It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the People and the court]

In re Jermaine B. (1999) 69 Cal.App.4th 634, 639 [Plea bargaining is an accepted practice in our criminal justice system]

People v. Vargas (2001) 91 Cal.App.4th 506, 533

People v. Armendariz (1993) 16 Cal.App.4th 906, 911

People v. Panizzon (1996) 13 Cal.4th 68, 80 [When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties must abide by the terms of the agreement]

Sixth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Ames (1989) 213 Cal.App.3d 1214, 1217

Seventh Holding:

The court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case, or where, after further consideration, the court concludes that the bargain is not in the best interests of society. In deciding whether or not to withdraw approval of a plea bargain, the court may of course be expected to consult the probation report.

Authority:

eople v. Johnson (1974) 10 Cal.3d 868, 873

People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338

People v. Stringham (1988) 206 Cal.App.3d 184, 194

Eighth Holding:

A minor who does not challenge an assertedly erroneous ruling of the juvenile court in that court has forfeited his or her right to raise the claim on appeal. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the court—so any error may be corrected. While forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880; In re F.M. (2023) 14 Cal.5th 701, 710

In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground

In re M.R. (2005) 132 Cal.App.4th 269, 273–274

United States v. Olano (1993) 507 U.S. 725, 733–734

In re Uriah R. (1999) 70 Cal.App.4th 1152, 1155 [A broad or general waiver such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error]

Ninth Holding:

The juvenile court incorrectly calculated the determinative portion of the term for count 2, the primary offense, as 19 years. Attempted murder, the offense in count 2, has a sentencing triad of five, seven, or nine years, for which the juvenile court imposed the upper term of nine years plus a 10 year term for the attendant gang enhancement pursuant to Penal Code section 186.22(b)(1)(C).

However, section 875(c)(1)(B) specifically states the term chosen by the juvenile court cannot exceed the middle term for which an adult would be eligible, with some exceptions. Therefore, the court erred in imposing the upper term for count 2.

Authority:

WIC 875(c)(1)(B)

Tenth Holding:

The juvenile court also miscalculated the consecutive term for count 1. Count 1 was the subordinate term, and the court was limited to one-third of the middle term plus one-third of the enhancements.

Authority:

PEN 1170.1

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Arellano (2024) 16 Cal.5th 457, 467–468

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]