We remand for the trial court to modify the judgment to reflect an additional five days of presentence custody credit.
The defendant is entitled to all days of custody, and there was an error in the trial court’s calculation.
PEN 2900.5
At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.
Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.
Section 1172.75(d)(3) provides that the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.
PEN 1172.75
People v. Monroe (2022) 85 Cal.App.5th 393, 402
We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.
We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.
People v. Mungia (2008) 44 Cal.4th 1101, 1118
People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840
People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]
Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.
PEN 1050
It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.
The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.
PEN 188(a)(3)
People v. Curiel (2023) 15 Cal.5th 433, 448–449
People v. Strong (2022) 13 Cal.5th 698, 708
At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
PEN 1172.6(d)(3)
We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.
People v. Clements (2022) 75 Cal.App.5th 276, 298
People v. Manibusan (2013) 58 Cal.4th 40, 87
To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.
People v. Canizales (2019) 7 Cal.5th 591, 602
People v. Mumin (2023) 15 Cal.5th 176, 191
People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079
People v. Smith (2005) 37 Cal.4th 733, 741
A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.
People v. Nguyen (2015) 61 Cal.4th 1015, 1054
Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.
People v. Waidla (2000) 22 Cal.4th 690, 735
The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.
Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286
When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.
People v. Estrada (2024) 101 Cal.App.5th 328, 338
The superior court abused its sentencing discretion by imposing a midterm sentence in the absence of any indication that the superior court was aware of the requirements of section 1170(b)(6) regarding a lower-term presumption where the defendant makes a showing of childhood trauma sufficient to trigger the presumption. We reverse the judgment and remand the matter for a new sentencing hearing
In relevant part, section 1170(b)(6), provides that, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if the following was a contributing factor in the commission of the offense: (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. Here, as the Attorney General concedes, the defendant made a sufficient showing in this respect, thus triggering the lower term presumption. The contested issue, then, is whether the superior court actually found that the aggravating circumstances outweighed the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.
PEN 1170(b)(6)
On the present record, we cannot conclude the court made that finding. First, the court did not expressly conduct the inquiry that would allow such a finding to be made: The court neither referred to section 1170(b)(6), nor invoked its language. Second, the record does not affirmatively show compliance with the statutory sentencing mandate, as is required when the court has not expressly complied. The court’s averment that “looking at the mitigating factors is where you start nowadays” is too vague to be an affirmative indication that the court was aware that the lower term was presumptive.
Similarly, the court’s decision to select the midterm after referring to aggravating factors is different from a finding that the aggravating factors outweighed the mitigating factors, as is required to defeat the presumption in favor the lower-term sentence. Indeed, on the sentencing form signed by the sentencing judge, no marking has been made on the field that reads, “[25] Aggravation factors outweigh those in mitigation,” even though several other fields on the form are marked. In short, this record gives us no reason to believe the court complied with section 1170(b)(6).
People v. Fredrickson (2023) 90 Cal.App.5th 984, 991 [the record must affirmatively show compliance with a statutory sentencing mandate whenever the mandate has been triggered by an initial showing of the applicability of the statute]
The juvenile court’s review of the probation report and relation motions before determining jurisdiction was prejudicial error and merits reversal.
The history of section 701 indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. The primary purpose of the jurisdictional hearing “is to determine whether sufficient evidence exists to declare the minor a ward of the juvenile court. If the court finds that the minor is a person described in section 602, the court must determine whether the minor’s offense would be a misdemeanor or a felony if committed by an adult. The court then proceeds to hold a disposition hearing.
WIC 701
In re Gladys R. (1970) 1 Cal.3d 855, 859
In re P.A. (2012) 211 Cal.App.4th 23, 31–32
At the jurisdictional hearing, the admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision. Proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by [Welfare & Institutions Code] [s]ection 602. Rule 5.780(c) further provides that the juvenile court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing.
WIC 701
Rules of Court, rule 5.780(c)
The juvenile court’s erroneous consideration of a probation report before determining jurisdiction is reviewed for harmless error under Watson. Under that standard, we determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.
People v. Watson (1956) 46 Cal.2d 818, 836
An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. In any event, to the extent the court did not understand the issue based on its colloquy with counsel, we exercise our discretion to reach the merits.
People v. Scott (1978) 21 Cal.3d 284, 290
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]
Invited error bars a claim on appeal when a defendant, for tactical reasons, makes a request acceded to by the trial court and claims on appeal that the court erred in granting the request.
People v. Russell (2010) 50 Cal.4th 1228, 1250
If the jurisdictional facts presented at the hearing are far from conclusive, the juvenile court’s review of the probation report prior to determining jurisdiction constitutes prejudicial error. Thus, if the determination of jurisdiction is made by closely balanced evidence, reversal is proper.
In re Gladys R. (1970) 1 Cal.3d 855, 862
In re James B. (2003) 109 Cal.App.4th 862, 875