Tag Archives: Standard of review

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

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

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

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

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Fourth Amendment, Standard of review

Case 000712

Posted on by Gary McCurdy

Error and/or relief

This was an appeal by the prosecutor from the grant of the defendant’s motion to suppress evidence under section 1538.5. It is considered a victory here because the Court of Appeal affirmed the order granting the motion to suppress.

First Holding:

The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. However, consensual encounters do not trigger Fourth Amendment scrutiny. Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.

Authority:

People v. McWilliams (2023) 14 Cal.5th 429, 437

In re Manuel G. (1997) 16 Cal.4th 805, 821

Second Holding:

Consensual encounters are those police-individual interactions that result in no restraint of an individual’s liberty whatsoever—i.e., no seizure, however minimal—and which may properly be initiated by police officers even if they lack any objective justification. The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions, so long as a reasonable person would understand that he or she could refuse to cooperate.

The citizen participant in a consensual encounter may leave, refuse to answer questions or decline to act in the manner requested by the authorities. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838

Third Holding:

In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838

Fourth Holding:

The test for the existence of a show of authority is an objective one and does not take into account the perceptions of the particular person involved. The test is not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. This includes an examination of both an officer’s verbal and nonverbal actions in order to assess the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838–839

Fifth Holding:

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.

Authority:

People v. Ramos (2004) 34 Cal.4th 494, 505

Sixth Holding:

Given that the officer had just woken defendant from his slumber in his legally parked vehicle, and that defendant did not place the call for service the the officer testified he told the defendant he was responding to, the officer’s statement would have placed an objectively reasonable person on alert that the officer might be investigating him specifically, which would lead that reasonable person to conclude that the officer required his attention and he could not simply depart.

Given the deferential standard of review we apply to the trial court’s factual findings, that the officer woke defendant from his slumber while he was legally parked with his window up, that the officer was blocking the vehicle’s door when he woke defendant, and that the officer’s statement would have placed an objectively reasonable person on alert that the officer might be investigating him specifically, we affirm the trial court’s ruling.

Authority:

Wilson v. Superior Court (1983) 34 Cal.3d 777, 790–791

People v. Linn (2015) 241 Cal.App.4th 46, 58, 65

Abstracts and Minutes, Effective assistance of counsel, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000706

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under Penal Code section 1172.1(a)(1) for the defendant, the trial court reduced defendant’s prison term by striking certain enhancements and re-imposing a restitution fine under section 1202.4(b). In considering the gang enhancements that were imposed in 2006, the court should have examined them to determine whether the elements met the current requirements under the amendments by AB 333 to section 186.22. Also, the restitution fine is more than 10 years old and must be vacated.

First Holding:

When defendant admitted to the enhancement in 2006, former section 186.22(b)(1) provided a sentencing enhancement for a person who committed a felony for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. As the defendant was convicted of attempted murder, carrying a sentence of a life term, the enhancement imposed a minimum of 15 years before release on parole. Without the enhancement, the defendant’s minimum eligibility would have been after seven years.

Authority:

FORMER PEN 186.22

Second Holding:

In 2021, the Legislature passed AB 333, effective January 1, 2022, which added new elements to gang enhancements in section 186.22. It narrowed the definition of criminal street gang and pattern of criminal activity, as well as what it means for an offense to have commonly benefited a street gang.

Under the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

These changes benefit defendants by raising the threshold for a true finding on a gang enhancement.

Authority:

CURRENT PEN 186.22

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

People v. Perez (2022) 78 Cal.App.5th 192, 206

Third Holding:

The defendant and the People agree that defendant’s 2006 admission to the gang enhancement on count 1 does not satisfy all the elements for a gang enhancement under the new legislation. Under our independent standard of review, we find no reason to disagree.

Authority:

People v. Rosbury (1997) 15 Cal.4th 206, 209 [de novo review applies when legality of sentence is purely a legal question]

Fourth Holding:

Because the defendant’s admission in 2006 would not satisfy the elements for a gang enhancement under current law, his past admission cannot now support beyond a reasonable doubt the additional punishment allowed by the enhancement.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082 [elements of an alleged sentence enhancement must be proven beyond a reasonable doubt]

People v. Rodriguez (2024) 103 Cal.App.5th 451, 458 [guilty plea admits of guilt beyond a reasonable doubt to every element of crime charged]

Fifth Holding:

AB 333’s substantive changes apply retroactively to all cases not yet final. When a sentence is recalled for resentencing, the matter is non-final and subject to application of ameliorative amendments, like AB 333. The record plainly supports that the defendant’s case was not final because his sentence was recalled under section 1172.1. He was therefore entitled to the benefits of AB 333. Accordingly, we reverse the true findings on the gang enhancement.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388, 396, 398–399 [recognizing a judgment becomes nonfinal when sentence is vacated and new sentence is imposed]

People v. Lopez (2020) 56 Cal.App.5th 835, 845–846 [recalled sentence not final]

Sixth Holding:

The restitution fine imposed in 2006 must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, 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.

Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

Authority:

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]

Fourth Holding:

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. The court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

Almendarez-Torres v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

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

Eighth Holding:

A Sixth Amendment sentencing 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 by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

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

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

 

 

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]

Defenses, Duty of the court, Elements of crime, Fifth Amendment, Jury instructions, Standard of review

Case 000691

Posted on by Gary McCurdy

Error and/or relief

The trial court gave an erroneous instruction on involuntary manslaughter requiring reversal. Based on the findings of the jury that the defendant was not guilty under any valid theory, we do not order retrial on the involuntary manslaughter.

First Holding:

(Gary note: I provide the following as context for the results in this opinion. These summaries are intended and designed to highlight principles of law, not so much the specific factual situation in which the error occurred. In this jury instruction error case, though, a little more factual specificity may aid the reader in understanding the more universal principles.

(In this case, the judge modified the standard instruction on involuntary manslaughter in such a way that the jury first had to find that the defendant acted in complete self-defense, and then had to determine whether he did so in a negligent matter. But that is not the law. Complete self-defense ends the question. Had the defendant acted in any way that was NOT complete self-defense, then he would not have been acting lawfully. And the jury necessarily found that he acted in complete self-defense, so it was misled by the instruction that allowed the jury to find him guilty of involuntary manslaughter.

(The opinion summarizes the context: “Here, the jury found defendant not guilty of first degree and second degree murder based on the finding that defendant acted in lawful self-defense in shooting defendant. It further found defendant not guilty of voluntary manslaughter rejecting that unreasonable self-defense was applicable. It found defendant guilty of involuntary manslaughter, finding, as recognized by the trial court, that defendant, ‘in a lawful act of self-defense, was criminally negligent in how he did it, and in his criminally negligent manner resulting in an involuntary manslaughter.’ As we have concluded, such determination was not a valid theory of involuntary manslaughter. There was no other theory of involuntary manslaughter presented to the jury. Here, the only question for the jury was whether defendant acted in reasonable self-defense in shooting [the victim] one time in the face. Once it concluded that such use of force was reasonable, it found lawful self-defense, which was a complete defense to involuntary manslaughter. The jury necessarily relied on the erroneous instruction to convict defendant of involuntary manslaughter after finding the complete defense of justifiable homicide. The error was prejudicial.”)

It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. It is also well settled that this duty to instruct extends to defenses if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 73

Second Holding:

In reviewing a claim that the court’s instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.

Authority:

People v. Butler (2010) 187 Cal.App.4th 998, 1013

Third Holding:

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice. A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense—the unreasonable but good faith belief in having to act in self-defense.

Authority:

PEN 192

People v. Elmore (2014) 59 Cal.4th 121, 132

People v. Blakeley (2000) 23 Cal.4th 82, 87-88

Fourth Holding:

A defendant commits involuntary manslaughter by committing a homicide with the mens rea of criminal negligence. The offense must be based on one of three predicate acts: (1) killing in the commission of a misdemeanor ; (2) killing in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or (3) killing in the commission of a noninherently dangerous felony committed without due caution and circumspection.

The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony.

Authority:

People v. Sevilla (2025) 115 Cal.App.5th 618, 626

Fifth Holding:

A killing in perfect self-defense is justifiable homicide. Perfect self-defense requires that one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. Imperfect self-defense reduces an intentional and unlawful killing to voluntary manslaughter. Imperfect self-defense occurs when defendants act in the actual but unreasonable belief they are in imminent danger of great bodily injury or death.

Authority:

People v. Odell (2023) 92 Cal.App.5th 307, 321

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

Sixth Holding:

In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1172

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Jurisdiction, Standard of review, Sufficiency of and substantial evidence

Case 000682

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to establish that one of the charged counts of aggravated sexual assault of a child based on sexual penetration took place within the jurisdiction of the superior court, and reverse the conviction on that count.

Holding:

There was insufficient evidence that more than one of the two counts of aggravated sexual assault of a child by sexual penetration occurred in a city in California, as opposed to Mexico.

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment and determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The victim’s answers to the questions indicated that at least one of the incidents occurred in California, but did not exclude the possibility that the other occurred in Mexico, outside the superior court’s jurisdiction.

Authority:

People v. Maciel (2013) 57 Cal.4th 482, 514–515

People v. Kraft (2000) 23 Cal.4th 978, 1053

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]

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000673

Posted on by Gary McCurdy

Error and/or relief

The defense attorney provided ineffective assistance of counsel by failing to object to this inadmissible opinion testimony. On this unusual record, the defendant has established both deficient performance and prejudice under the Strickland standard for ineffective assistance. Accordingly, we reverse the judgment and remand for a new trial.

[Gary note: It is highly unusual for a court on direct appeal to find that counsel prejudicially provided ineffective assistance. Normally such challenges are denied on appeal, with the court perhaps mentioning that the defendant could pursue the claim through habeas corpus. I have chosen to include extensive passages, because even though any case is fact-specific, the principles announced along with the facts may be of value, should you at some point need to consider raising an IAC claim on direct appeal.]

First Holding:

The defendant’s evidentiary objections are forfeited because defense counsel did not object to any of the testimony that Seevers now challenges on appeal. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Accordingly, it is generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726

Second Holding:

We must therefore decide the defendant’s alternative claim of ineffective assistance of counsel. To prevail on his ineffective assistance claim under the Sixth Amendment, the defendant must establish that (1) his counsel’s performance was deficient, and (2) he was prejudiced as a result.

Deficient performance is established by showing that the attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Under Strickland’s prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694

Third Holding:

In assessing whether an attorney’s performance was deficient, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.

Further, competent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.  Thus, a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Nonetheless, deference to counsel’s performance is not the same as abdication. It must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. We may conclude, on direct appeal, that counsel’s performance was deficient if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Riel (2000) 22 Cal.4th 1153, 1197

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Jasso (2025) 17 Cal.5th 646, 676

Fourth Holding:

A lay witness may offer opinion testimony if it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’s testimony.However, lay opinion about the veracity of particular statements by another is inadmissible on that issue.

Authority:

EVID 800

People v. Jones (2017) 3 Cal.5th 583, 602

People v. Melton (1988) 44 Cal.3d 713, 744

Fifth Holding:

A lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence, nor does it bear on any of the other matters listed by statute as most commonly affecting credibility. Thus, such an opinion has no tendency in reason to disprove or prove the veracity of the statements. A lay witness may not express an opinion about the veracity of another person’s statement because the statement’s veracity is for the jury to decide.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1221

Sixth Holding:

A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. The reason for employing this rule is not because guilt is the “ultimate issue of fact” to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case.

Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

Authority:

People v. Duong (2020) 10 Cal.5th 36, 60

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

Seventh Holding:

The same rationale that prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.

Authority:

People v. Torres (1995) 33 Cal.App.4th 37, 47 [witness improperly expressed the opinion the crimes committed were robberies]

Eighth Holding:

Our inquiry is whether a witness has offered testimony that is tantamount to expressing an opinion as to defendant’s guilt.

Authority:

People v. Ward (2005) 36 Cal.4th 186, 210

People v. Vang (2011) 52 Cal.4th 1038, 1048

People v. Duong (2020) 10 Cal.5th 36, 61

Ninth Holding:

The investigator improperly expressed an opinion on the defendant’s guilt throughout his testimony. By asking the investigator whether any evidence exonerated the defendant, the prosecutor improperly elicited testimony that commented on the strength of the case against the defendant and the issue of whether he was guilty of the victim’s murder. By responding that he found no exonerating evidence, the investigator improperly expressed his personal opinion on evidence a factfinder could have viewed as exonerating.

Authority:

People v. Spence (2012) 212 Cal.App.4th 478

Tenth Holding:

Having determined that portions of the investigator’s testimony were objectionable because they either opined on witness credibility or opined on the defendant’s guilt, we conclude that there simply could be no satisfactory explanation for the failure of defense counsel to object.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 676

Eleventh Holding:

The investigator’s testimony opining on the defendant’s guilt and on the witnesses credibility was so central to the issues at trial and so damaging to the defense that any competent counsel would have objected.

We can conceive of no satisfactory explanation for defense counsel’s failure to object. The defendant has therefore satisfied the deficient performance prong of the Strickland standard.

Authority:

People v. Yates (2018) 25 Cal.App.5th 474, 488 [finding on direct appeal no conceivable satisfactory explanation for defense counsel’s failure to object to every instance in which prosecution experts related as true case-specific facts contained in hearsay statements]

Twelfth Holding:

Given the investigator’s lead role and extensive participation in the investigation and presence in court during the trial, his opinions on witness credibility, the absence of any exonerating evidence, and the conclusions to be drawn from the defendant’s statement were likely to hold special weight for the jury and created a risk that the jury would abdicate its role as the arbiter of credibility and guilt.

Authority:

People v. Rouston (2024) 99 Cal.App.5th 997, 1012

Thirteenth Holding:

The case against the defendant was weak because it rested primarily on the inconsistent testimony of witnesses with motives to be untruthful, no physical evidence corroborated any of their stories or otherwise implicated the defendant, no body was ever found, and no crime scene was ever identified.

Although, in certain circumstances, an investigating officer’s opinion on the defendant’s guilt may not have influenced the verdict in light of the overwhelming evidence against defendant, that situation is not present here. Because the case against the defendant was based on such a precarious foundation, jurors could well have been influenced by the investigator’s personal opinions as an experienced law enforcement officer who had spent countless hours on the investigation.

It is therefore reasonably probable that the defendant would have obtained a more favorable result at trial if defense counsel had objected to the investigator’s improper testimony opining on the veracity of the two witnesses’ statements, identifying the defendant as the person who committed the homicide, assuring the jurors he knew he had the right person, and concluding that no evidence exonerated the defendant.

Authority:

In re Edward S. (2009) 173 Cal.App.4th 387, 418 [the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility]

People v. Riggs (2008) 44 Cal.4th 248, 301

Discretion, Standard of review

Case 000672

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying his motion for mental health diversion because substantial evidence does not support the trial court’s finding that he posed an unreasonable risk of danger to public safety, as defined under section 1001.36.

First Holding:

In 2018, the Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

As presently enacted, section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

If a defendant meets these eligibility requirements, the court also must find that the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial. The defendant agrees to comply with treatment as a condition of diversion. And (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(b)

People v. Graham (2024) 102 Cal.App.5th 787, 795

Fourth Holding:

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). That provision of section 667 sets forth eight categories of offenses that are commonly referred to as “super strikes,” including any homicide offense, and including any attempted homicide offense, defined in sections 187 to 191.5, inclusive.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [noting that the “super strikes” include murder and attempted murder]

Fifth Holding:

Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the statutory requirements are met.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

In addition, we review a trial court’s factual findings in support of its ruling for substantial evidence.

On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Seventh Holding:

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals. Further, in the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893