Tag Archives: Standard of review

Appellate Principles, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000671

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the conviction for sexual penetration by force upon a child.

First Holding:

To evaluate the defendant’s challenge to the sufficiency of the evidence, we must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.  

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence, for 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 upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167–168

Second Holding:

In reviewing the sufficiency of the evidence to determine whether retrial is permissible for purposes of double jeopardy, we must consider all of the evidence presented at trial, including evidence that should not have been admitted. Because the record contains no evidence that could support a reasonable inference that the defendant sexually penetrated the victim with a foreign object, insufficient evidence supports a verdict of guilt on that count. Double jeopardy bars retrial on that count.

Authority:

People v. Story (2009) 45 Cal.4th 1282, 1296

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Third Holding:

When a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181(6)

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

Sentencing, Sixth Amendment, Standard of review

Case 000666

Posted on by Gary McCurdy

Error and/or relief

Imposition of the upper term based on judge-found facts, without the defendant’s express waiver of his jury trial right, violated the Sixth Amendment and California law, and the error was not harmless. Accordingly, we reverse.

First Holding:

The court found true the rule 4.421(b)(2) aggravating factor regarding numerous or increasingly serious prior convictions or adjudications, explaining only that the defendant has not only the prior strike, he has a substantial amount of convictions on his RAP sheet.

The trial court may impose an upper term sentence only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

The record does not reflect that the defendant ever waived his right to a jury trial on the aggravating factors.

Authority:

PEN 1170(b)(2)

Second Holding:

The right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence is not merely a state law entitlement, but is constitutionally required by the Sixth Amendment. Any waiver of this right must be express. Absent waiver or stipulation, a jury must determine whether the particular details of a defendant’s criminal history demonstrate convictions of increasing seriousness, before a trial court can rely on that fact to justify an upper term sentence.

Authority:

Rules of Court rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1082-1084

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

People v. French (2008) 43 Cal.4th 36, 47–48

Third Holding:

When such an error occurs, we determine whether it was prejudicial under the Chapman standard of review, under which we must reverse and remand unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found the aggravating factor true.

Authority:

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

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000665

Posted on by Gary McCurdy

Error and/or relief

On remand for resentencing in the earlier appeal, the court erred in refusing to conduct a full resentencing. It was also error for the court to impose the upper term on the gun use enhancement where the aggravating circumstances were not stipulated to or found true by a jury beyond a reasonable doubt. And the abstract of judgment must be amended to show that he was convicted of false imprisonment, not of kidnapping.

First Holding:

We consider a trial court’s sentencing decisions under an abuse of discretion standard. 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 not supported by substantial evidence.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

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

Second Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. That the appellate court gave specific directions on remand does not preclude a full resentencing hearing as required by Buycks. Because the judgment is no longer final, new statutes imposing new lighter penalties are deemed to be sufficient to apply upon resentencing.

Authority:

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

People v. Walker (2021) 67 Cal.App.5th 198, 204

People v. Padilla (2022) 13 Cal.5th 152, 160, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence whereupon the trial court may impose any appropriate sentence]

Third Holding:

Where, as here, a statute specifies three possible terms, the presumptive sentence is the middle term unless there are aggravating circumstances justifying imposition of the high term. The aggravating circumstance must be stipulated to by the defendant or found true beyond a reasonable doubt by a jury or, if jury is waived, by the court in a court trial.

The trial court acknowledged that a bifurcated trial would be necessary to find the aggravating circumstances true. Nevertheless it relied on our “very specific instructions” in declining to hold such a trial.

Where, as here, the record reflects no jury finding, no waiver thereof, and no admission by the defendant of the aggravating circumstances, the trial court’s reliance on unproven aggravating factors to impose an upper term sentence violates the Sixth Amendment.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 767–769

Fourth Holding:

The error is harmless only if a reviewing court can conclude beyond a reasonable doubt that a jury would have found true all the aggravating facts relied upon by the sentencing court to justify the upper term. On this record we agree with the parties that we cannot draw such a conclusion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761, 775

Fifth Holding:

We direct the trial court to issue a corrected abstract of judgment. The defendant was convicted of the offense of false imprisonment, a violation of Penal Code section 237, not kidnapping, a violation of Penal Code section 207.

(GARY Note: The court listed no authority for correction of erroneous abstracts, likely because the error and remedy are so obvious. But I have listed several cases that the court could have relied on.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

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

Elements of crime, Fifth Amendment, Standard of review

Case 000663

Posted on by Gary McCurdy

Error and/or relief

Substantial evidence does not support the defendant’s conviction for exhibiting harmful matter to a minor.

First Holding:

The law governing sufficiency-of-the-evidence challenges is well established. In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt.

We neither reweigh the evidence nor reevaluate the credibility of witnesses. We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 638-639

People v. Zamudio (2008) 43 Cal.4th 327, 357

Second Holding:

Under section 288.2(c), “harmful matter” is defined in section 313. Section 313(a) states that harmful matter means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

This definition is virtually identical to the constitutional standard of obscenity set forth in Miller. We conclude the record does not contain evidence from which a jury could reasonably find the video the defendant showed them minor was harmful matter within the meaning of section 288.2(a)(2) and section 313. Therefore, substantial evidence does not support the defendant’s conviction, and we will reverse the judgment and remand for resentencing.

Authority:

Miller v. California (1973) 413 U.S. 15, 24

People v. Dyke (2009) 172 Cal.App.4th 1377, 1383

Third Holding:

Nudity or depictions of sexual intercourse or other sexual activity do not, by themselves, make a movie obscene.

Authority:

People v. Powell (2011) 194 Cal.App.4th 1268, 1291

Fourth Holding:

The defendant may not be retried on this count.

Authority:

United States v. DiFrancesco (1980) 449 U.S. 117, 131

Discretion, Standard of review

Case 000661

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an improper legal standard when determining whether the defendant was eligible for mental health diversion, made findings regarding his eligibility that were not supported by the evidence, and failed to provide a basis for the exercise of its residual discretion to deny his motion. We accordingly conditionally reverse the judgment and remand for further proceedings on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 states that a trial court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

Authority:

PEN 1001.36(a)

Second Holding:

The statute identifies two eligibility requirements: (1) in the last five years the defendant has been diagnosed with or treated for “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia” (§ 1001.36, subd. (b)(1)); and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)(2)

Third Holding:

The statute identifies four suitability criteria: (1) a qualified mental health expert has opined that 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 (if mentally competent) consents to diversion and waives the right to a speedy trial; (3) the defendant (if mentally competent) 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(c

Fourth Holding:

If the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Fifth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. 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.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Sixth Holding:

We review a trial court’s ruling on 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.

Authority:

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

Seventh Holding:

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.

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. The issue before us is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 402

Eighth Holding:

Reviewing courts have consistently made clear that the legislation’s aim is for diversion to apply as broadly as possible so as to increase the provision of mental health treatment for the betterment of individuals and society as a whole. “A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved.”

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 58

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. 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.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

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

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000645

Posted on by Gary McCurdy

Error and/or relief

As to the section 1172.6 petition, the trial court denied the petition. This ruling was in error because the record of conviction does not establish as a matter of law that the defendant is ineligible for relief.

First Holding:

Under Penal Code section 1172.6, a defendant is entitled to an evidentiary hearing unless the record of conviction at the prima facie stage conclusively refutes—as a matter of law—defendant’s claim that he was convicted of a homicide offense under a now invalid legal theory.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Second Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial 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, 972

Third Holding:

On the plea form in 1994, the defendant stated that he was both an aider and abettor and the shooter. These statements are internally inconsistent. A defendant cannot be both an aider and abettor, and a direct perpetrator (the shooter). The defendant’s admission to the personal use of a firearm does not resolve the issue because a defendant can personally use a firearm without shooting it (e.g., brandishing a firearm).

Authority:

PEN 31

People v. Arzate (2003) 114 Cal.App.4th 390, 400

Fourth Holding:

While we could reject his statement that he was an aider and abettor and accept his statement that he was the shooter, we cannot engage in judicial discretion at the prima facie stage.

Authority:

People v. Garcia (1995) 32 Cal.App.4th 1756, 1771 [an exercise of discretion means different courts may reasonably arrive at different decisions, even on the same facts]

Fifth Holding:

We review de novo a trial court’s denial of a section 1172.6 petition at the prima facie stage. Appellate courts also interpret statutes under a de novo standard.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

John v. Superior Court (2016) 63 Cal.4th 91, 95

Sixth Holding:

Generally, a person may be liable for a crime either as a direct perpetrator or as an aider and abettor. A person can be held liable for crimes that were intentionally aided and abetted (target offenses); a person can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). Liability for an intentional, target offense is known as direct aider and abettor liability; liability for an unintentional, nontarget offense is known as the natural and probable consequences doctrine.

Authority:

PEN 31

People v. Laster (1997) 52 Cal.App.4th 1450, 1462–1463

People v. Montes (1999) 74 Cal.App.4th 1050, 1055

Seventh Holding:

Effective January 1, 2019, the Legislature narrowed accomplice liability theories for murder and attempted murder.The Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The Legislature also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

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

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

Eighth Holding:

Direct aider and liability is still a valid legal theory for homicide offenses after the Legislature amended sections 188 and 189. We have generally described the requisite mens rea for direct aiding and abetting as knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends.

Authority:

People v. Medrano (2021) 68 Cal.App.5th 177, 183

People v. Curiel (2023) 15 Cal.5th 433, 468

Ninth Holding:

Under section 1172.6, if the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing. At the prima facie stage, the trial court examines the underlying record of conviction, but the 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, 972

Tenth Holding:

The trial court accepts the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief.

If the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner at the prima facie stage. For example, if the record of conviction irrefutably establishes as a matter of law that the jury determined that the petitioner was the actual killer, the trial court may properly deny the petition at the prima facie stage.

Authority:

People v. Flores (2023) 96 Cal.App.5th 1164, 1170

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

People v. Harden (2022) 81 Cal.App.5th 45, 56, 60

Eleventh Holding:

When a petitioner’s conviction results from a guilty plea, the record of conviction includes facts “the defendant admitted as the factual basis for a guilty plea. And when a defendant pleads guilty, he or she admits every element of the charged offense. However, in a section 1172.6 petition at the prima facie stage, the court may ordinarily only consider the facts the defendant has stipulated to as part of the guilty plea to determine the theory under which the defendant was convicted.

Authority:

People v. Gallardo (2017) 4 Cal.5th 120, 136

People v. Rivera (2021) 62 Cal.App.5th 217, 234

People v. Davenport (2021) 71 Cal.App.5th 476, 484

Twelfth Holding:

The defendant’s ambiguous statement in his felony plea form that he was both an aider and abettor and the shooter does not refute as a matter of law his later averment in his section 1172.6 petition that he was convicted as an aider and abettor under the natural and probable consequences doctrine. In order to resolve the defendant’s factual claim there must be an evidentiary hearing.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

 

 

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821, 837, 838

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

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. A jury–not the judge, absent a jury waiver or stipulation–must determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1083–1084, 1086

Fourth Holding:

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. The 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 the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Amelioration, Sentencing

Case 000634

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied Penal Code section 1172.6 resentencing relief at the prima facie stage. We reverse the trial court’s order denying resentencing relief and direct the trial court to issue an order to show cause.

First Holding:

SB 1437, effective as of January 1, 2019, made ameliorative changes to our state’s homicide law. As part of these ameliorative changes, malice, a key element the People must prove in a murder prosecution, may no longer be imputed to a defendant solely because the defendant participated in another crime. This means, for instance, that a defendant is no longer guilty of murder as an aider and abettor solely because the natural and probable consequences of that other crime included a confederate’s commission of murder.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

These ameliorative changes apply retroactively through the resentencing process set forth in section 1172.6. Those convicted of murder or attempted murder under certain imputed malice theories may seek resentencing. So may a person convicted of manslaughter who was charged with murder when three conditions apply. First, the charging document allowed the prosecution to proceed under a theory of murder in which malice is imputed to a person based solely on that person’s participation in a crime. Second, the petitioner accepted a manslaughter plea offer in lieu of a trial on such a murder charge. And third, the petitioner could not presently be convicted of murder because of the changes to homicide law that took effect in 2019.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

Upon receipt of a facially sufficient petition — along with briefing in opposition or support — the trial court holds a hearing to determine whether a petitioner has made a prima facie case for relief. If so, the court issues an order to show cause and then holds an evidentiary hearing to determine entitlement to relief. If not, the court denies the petition.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 559, 562

Fourth Holding:

We independently review a trial court’s conclusion that a petitioner failed to make a prima facie case for relief. The record of conviction informs the prima facie determination. And that record includes a preliminary hearing transcript preceding a guilty plea. A court, however, may not engage in factfinding, weigh the evidence, or make credibility determinations at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

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

People v. Patton (2025) 17 Cal.5th 549, 559, 568

Fifth Holding:

A review of the preliminary hearing transcript in this case reveals that it possible the defendant could have been convicted at trial under a now-invalid theory. There was witness testimony that two unidentified men initiated the attack, which raises at least a triable issue as to whether the defendant was the actual killer, and if he was not, whether he knew of and intended to aid in the criminal purpose of the actual killer as required for direct aiding and abetting. Given this state of the record of conviction, the defendant’s guilty plea to voluntary manslaughter does not prove that he could still be convicted of murder under current law.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1213

People v. Patton (2025) 17 Cal.5th 549, 567 [A dispute regarding the basis of a conviction might arise if, for instance, a petitioner points to specific facts that identify someone else as the direct perpetrator.]

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

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

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

Case 000629

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court imposed a $10,000 restitution fine under section 1202.4(b), that is no longer enforceable or collectible, and it imposed additional fines and fees that were not originally imposed and which came into effect after the defendant’s original sentencing. We modify the judgment by vacating the challenged fines and fees.

First Holding:

In 2021, the Legislature enacted SB (Stats. 2021 (2021-2022 Reg. Sess.), retroactively invalidating prison prior enhancements imposed pursuant to section 667.5(b), except those that were based on a conviction for a sexually violent offense. Once the court verifies that the current judgment includes such a sentencing enhancement, the court shall recall the sentence and resentence the defendant. Resentencing under section 1172.75 is not limited to striking the section 667.5(b), enhancement. Rather, the court must conduct a full resentencing.

Authority:

PEN 1172.75

People v. Green (2024) 104 Cal.App.5th 365, 368, 373

People v. Rogers (2025) 108 Cal.App.5th 340, 348, fn. 5

People v. Gray (2024) 101 Cal.App.5th 148, 163

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Garcia (2024) 101 Cal.App.5th 848, 855

Second Holding:

Our review of the imposition of fines and fees is de novo.

Authority:

People v. Arroyo (2016) 62 Cal.4th 589, 593 [de novo review in cases of statutory interpretation]

People v. Guillen (2013) 218 Cal.App.4th 975, 983 [authority of trial court to impose fine or fees turns on relevant statutory provisions and presents essentially an issue of law]

Third Holding:

Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, on the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. The defendant was resentenced in November 2024, weeks before the effective date of the amendment. But the amendment applies retroactively to his sentence. The section 1202.4 restitution fine, which was imposed over 10 years ago in 2003, must therefore be vacated.

Authority:

PC 1465.9

In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

The statute authorizing the remaining fines and fees did not become effective until after the defendant’s conviction. Accordingly, the superior court was not authorized to impose these fines and fees on resentencing.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754

People v. Castillo (2010) 182 Cal.App.4th 1410, 1414

People v. Hayes (1989) 49 Cal.3d 1260, 1274 [A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise]