Tag Archives: Standard of review

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000975

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand for resentencing because the trial court erroneously believed the law required it to impose consecutive sentences for every count.

First Holding:

Under section 667.61(i), consecutive sentences are mandatory only to offenses listed in section 667.61(c), paragraphs (1) through (7). The crime of which the jury found the defendant guilty is described in 667.61(c), paragraph (8).

Thus, consecutive sentencing was not mandatory.

Authority:

PEN 667.61(c)

Second Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

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

Authority:

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

People v. Salazar (2023) 15 Cal.5th 416, 419

Third Holding:

The Attorney General argues that the defendant forfeited his sentencing contention by failing to object below to the court’s error, and that the defendant cannot show his counsel was ineffective for failing to object because it was not reasonably likely the court would have imposed anything less than the 150-year sentence that it did.

We exercise our discretion to reach the question, notwithstanding forfeiture.

Authority:

People v. Leon (2016) 243 Cal.App.4th 1003 [the trial court’s erroneous understanding that it had no discretion to impose concurrent sentences may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection, and in any event, we would exercise our discretion to resolve the claim in the interests of fairness and judicial economy and to forestall unnecessary ineffective assistance of counsel claims.]

People v. Williams (1998) 17 Cal.4th 148, 162, 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:

The trial court’s repeated references to section 667.61(i)’s requirement that it impose consecutive sentences leaves no doubt that the court here did not know it retained the discretion to impose concurrent sentences per victim.

The court provided no other reason for imposing consecutive sentences, including no comment that the aggravating factor warranted a maximum sentence or any similar comment.

We therefore cannot conclude that the record clearly indicates the court would have imposed the same sentence if it had understood its full sentencing discretion. We accordingly remand the matter for resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000974

Posted on by Gary McCurdy

Error and/or relief

Punishment for the defendant’s conviction of the false imprisonment count must be stayed under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Section 654 does not prevent multiple convictions for the same conduct, only multiple punishments for a single, indivisible course of action. A defendant can be punished for multiple offenses where a course of conduct is divisible, giving rise to more than one act.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Corpening (2016) 2 Cal.5th 307, 311

Second Holding:

To determine whether a course of conduct involving more than a single act is divisible for purposes of section 654, we consider whether the course of conduct included multiple intents and objectives.

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

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Beamon (1973) 8 Cal.3d 625, 639

People v. Harrison (1989) 48 Cal.3d 321, 335

Third Holding:

However, even if there is but a single objective for a course of conduct, a temporal break between individual acts may subject them to multiple punishments. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

In assessing whether section 654 applies, the court may consider a number of factors, including whether the defendant had multiple sequential intents, as well as whether he had the opportunity to pause and reflect before continuing his course of action.

Authority:

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

People v. Surdi (1995) 35 Cal.App.4th 685, 689

Fourth Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

Thus, we review the record in the light most favorable to the judgment and uphold it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Ultimately, if the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Saffle (1992) 4 Cal.App.4th 434, 439

Fifth Holding:

We agree that defendant cannot be subjected to multiple punishments for the false imprisonment conviction and the second domestic violence conviction. In closing argument, the prosecutor clarified that defendant was charged with false imprisonment for grabbing the victim by her hair as she ran toward the door and pulling her back toward the stairs, where he committed an additional act of domestic violence.

The false imprisonment and second domestic violence offenses were both committed to facilitate one assaultive objective.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

Sixth Holding:

As a result, the facts here are distinguishable from those in the cases relied upon by the Attorney General, where courts determined that section 654 did not require staying sentences for offenses committed after the other offense had already been completed.

Authority:

People v. Coleman (1989) 48 Cal.3d 112, 162-163 [the defendant had essentially completed the robbery before committing assault; court could reasonably conclude that the defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder]

People v. Foster (1988) 201 Cal.App.3d 20, 27 [false imprisonment not necessary or incidental to commission of robbery because the act of locking the victims in a store cooler occurred only after the robbers had obtained all the money]

Seventh Holding:

Therefore, we shall vacate the sentence and remand the matter for a full resentencing.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379 [sec. 654 previously required court to impose sentence that provided for longest term of imprisonment, but now provides the trial court with discretion to impose sentence of either term]

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing as to all counts is appropriate to allow court to exercise its discretion in light of changed circumstances]

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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.

Authority:

PEN 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

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

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

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

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

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466

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

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury 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.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

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

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

Eighth Holding:

The Sixth Amendment is violated 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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 000967

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his petition for relief under section 1172.6 of the Penal Code after an evidentiary hearing. The trial court’s finding that appellant was a direct aider and abettor for purposes of implied malice murder is not supported by substantial evidence.

We reverse the denial and remand this matter with directions to vacate appellant’s murder conviction and to resentence him in accordance with section 1172.6(e).

First Holding:

The Legislature enacted SB 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine.

The legislation bars murder convictions premised on any theory of imputed malice unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. S

pecifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

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

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to section 188 and 189. If a prima facie case is made—that is, if the petitioner is not ineligible as a matter of law—the court must issue an order to show cause and hold an evidentiary hearing.

At the evidentiary hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under the law as amended by the changes to sections 188 and 189.

If the prosecution does not meet this burden, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence is not greater than the initial sentence.

Where the murder was charged generically, and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.

Authority:

PEN 1172.6

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

People v. Coley (2022) 77 Cal.App.5th 539, 543

People v. Arellano (2024) 16 Cal.5th 457, 474, fn. 5 [What matters for purposes of subdivision (e)’s requirement that the underlying felony or target offense was not charged is that the defendant was neither convicted of the underlying felony or target offense nor was either crime actually litigated]

Third Holding:

We review the trial court’s findings for substantial evidence.

Authority:

People v. Vargas (2022) 84 Cal.App.5th 943, 951

Fourth Holding:

Direct aiding and abetting remains a valid theory of murder liability after SB 1437. It is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.

In the context of implied malice, the actus reus required of the perpetrator is the commission of the life-endangering act.

For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 546

People v. Reyes (2023) 14 Cal.5th 981, 990–991

Garcia v. Superior Court (2024) 106 Cal.App.5th 1005, 1022

Fifth Holding:

The record here may support the finding that appellant had the requisite mens rea, but it does not show the actus reus required for direct aiding and abetting.

The co-defendant perpetrator shot the victim in the chest to free the defendant from the victim’s grasp.

It is too far of a stretch to consider the defendant’s circumstance of being physically restrained to be an act of his that aided the commission of the perpetrator’s fatal shooting, even if the defendant wanted the perpetrator to shoot the victim so he could be freed. Nothing in the record shows that the defendant told the perpetrator to shoot, or acted at all to facilitate the shooting—aside from his planning and participation in the underlying robbery.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 712 [An aider and abettor must do something and have a certain mental state]

Sixth Holding:

Although direct aiding and abetting liability has been extended to cases where someone has a legal duty to act but fails to do so, we are unaware of any such case outside the context of parent-child or caregiver relationships.

Authority:

People v. Werntz (2023) 90 Cal.App.5th 1093, 1101

People v. Collins (2025) 17 Cal.5th 293, 312

People v. Zemek (2023) 93 Cal.App.5th 313, 339

Seventh Holding:

We do not see fit to remand for reconsideration of the defendant’s liability for felony murder because the trial court expressly rejected that possibility.

We instead remand for the trial court to vacate appellant’s murder conviction, and to redesignate the conviction as the underlying felony or felonies consistent with section 1172.6(e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 477 [declining to remand where it would be an idle act as shown by the trial court’s statement]

People v. Tyus (2026) 120 Cal.App.5th 798, 817 [reversing trial court’s decision to simply dismiss the case after vacating a manslaughter conviction from a plea; the trial court was required to redesignate the conviction as an underlying felony]

Amelioration, Plea bargains, Sentencing, Sixth Amendment

Case 000963

Posted on by Gary McCurdy

Error and/or relief

Having been found in violation of probation and the previously imposed but suspended prison term having been ordered executed, the defendant is entitled to challenge the upper term that he agreed to in 2021 before section 1170 was amended to provide that the upper term may be imposed only on aggravating factor stipulated to or found true beyond a reasonable doubt by a jury.

If the prosecution or court are not satisfied with the resulting modification, the plea shall be set aside and the parties shall be restored to their status prior to the plea agreement.

First Holding:

Effective 1/1/2022, SB 567 amended section 1170 to make the middle term the presumptive sentence and permit a trial court to impose the 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.

Authority:

PEN 1170

Second Holding:

In Mitchell, the California Supreme Court resolved the effect of section 1170(b) on negotiated dispositions, holding that SB 567’s amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases that were not final on appeal.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 737–738

Third Holding:

We therefore reverse the judgment because the facts relied on to justify the upper term were not stipulated to or proven beyond a reasonable doubt at a jury or court trial. The defendantl may reaffirm the bargain and waive the requirements now applicable under section 1170(b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing its burden of proof. What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence to the middle term.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 749

Gary note:

(The opinion made no mention of Penal Code section 1171, effective 1/1/2025, even though the Mitchell opinion made an observation in a footnote. There are several unpublished cases that have held that section 1171 will NOT result in a rescission of the plea agreement, in light of the language in 1171(c)(3) that says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (You can search for the unpublished opinions I have posted, where I may have added additional commentary.  Maybe try the search term “1171” or “PEN 1171” with or without quotation marks.)

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)