Tag Archives: Standard of review

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000200

Posted on by Gary McCurdy

Error and/or relief

The defendant’s sentence on two firearm enhancements and one possession of an explosive device should have been imposed and stayed pursuant to Penal Code section 654. We modify the judgment accordingly.

First Holding:

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.

Authority:

PEN 654

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

Authority:

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

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses.

Authority:

People v. Islas (2012) 210 Cal.App.4th 116, 129

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fourth Holding:

The sentences on each of three counts were based on his simultaneous possession of two completed assault rifles, and we assume that such possession can constitute two physical acts for the purposes of section 654. Even so, multiple punishment can be imposed consistent with section 654—on two of the three counts —only if substantial evidence in the record supports an implied finding that he had a separate objective in possessing one firearm versus the other. Our review of the record reveals no such evidence. Section 654 also prohibits multiple punishment for both possession of an explosive device and possession of ingredients to make an explosive device, because the explosives the defendant possessed were not actually capable of exploding, and thus identical evidence supported both counts. Both counts were based on the defendant’s possession of the ingredients in the box truck, at the same time and place, and under the same circumstances. Both counts were based on, essentially, the same course of conduct.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 358 [suggesting simultaneous possession of different items of contraband’ are separate acts for purposes of section 654]

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fifth Holding:

Because it is apparent from the sentence imposed that the sentence would be little changed as a result of remand, in the interests of judicial economy, and given that the parties agree on this remedy, we will modify the judgment to stay the sentences on counts 5 and 6 rather than remand for resentencing.

Authority:

PEN 1260 [authority to modify unauthorized sentence]

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of the penalty imposed is the preferred remedy for section 654 error where the reduction in sentence would be relatively minor because in such cases, it would not serve the interests of justice or judicial economy to require remand]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority to modify judgment to impose and stay sentence under section 654 rather than remand for resentencing that will not change defendant’s actual prison time]

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000188

Posted on by Gary McCurdy

Error and/or relief

The court denied the defendant’s motion for mental health diversion under section 1001.36, and placed him on probation. The evidence is insufficient to support the trial court’s finding that his undisputed mental health disorders were not a motivating, causal, or contributing factor in his involvement in the crime. We will reverse the probation order due to insufficient evidence supporting the trial court’s finding of ineligibility for mental health diversion under Penal Code section 1001.36(b)(2). We will remand the matter for the trial court to exercise its discretion under Penal Code section 1001.36(c) regarding defendant’s suitability for mental health diversion.

First Holding:

Since 2018, Penal Code section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and later amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion. As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense. The presumption can be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890

Second Holding:

We review for substantial evidence a decision that a qualifying mental health disorder (which the trial court found to exist here) was not a motivating factor, causal factor, or contributing factor in the charged conduct—a finding that must be supported by clear and convincing evidence. Given that standard, on appeal we must determine 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. We also must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Even considering the record in the light most favorable to the challenged ruling, we conclude it does not contain substantial evidence from which a reasonable trier of fact could have found it highly probable that defendant’s mental disorders were not a motivating factor, causal factor, or contributing factor in his involvement in the crime. A qualifying diagnosis creates a presumption that the defendant’s mental condition contributed to his criminal behavior. And the prosecution can only rebut this presumption by producing clear and convincing evidence that there was no causal connection. he statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime. The statutory presumption is not overcome simply by the absence of evidence that the mental disorder was a motivating factor, or the absence of evidence that the defendant was actively experiencing symptoms while committing the crime.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401, 404

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996

People v. Harlow (2025) 113 Cal.App.5th 485

Duty of the court, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

000184

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of felony reckless evasion of a police officer. There were evidentiary conflicts. Under the highly deferential substantial evidence review standard, we conclude the conflicting trial evidence nonetheless supports his conviction. These evidentiary conflicts were sufficient, however, to raise a substantial question about whether all the elements of reckless evasion were present, warranting an instruction on the lesser included offense of simple evasion. We conclude failure to give this instruction was prejudicial error.

Accordingly, we reverse the judgment with the direction that if the People do not timely elect to retry the defendant for reckless evasion, then the judgment shall be modified to reflect a conviction for simple evasion and the trial court shall resentence the defendant.

First Holding:

It is undisputed that misdemeanor simple evasion (Veh. Code, sec. 2800.1) is a lesser included offense of felony reckless evasion (Veh. Code, sec. 2800.2) and that the only distinction between the two crimes is that the greater offense requires proof of the additional element that the defendant drove the pursued vehicle in a willful or wanton disregard for the safety of persons or property. The greater offense’s additional element can be established by proving that during the evasion the defendant committed three or more violations that are assigned a traffic violation point count under section 12810.

Authority:

VEH 2800.1

VEH 2800.2

People v. Springfield (1993) 13 Cal.App.4th 1674, 1680

People v. Diaz (2005) 125 Cal.App.4th 1484, 1486

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a convictionIf 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.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1215

People v. Oyler (2025) 17 Cal.5th 756, 819–820

People v. Ramirez (2022) 13 Cal.5th 997, 1118

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

Third Holding:

California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.

Thus, a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. In this context, substantial evidence is not any evidence, no matter how weak; it is evidence that a reasonable jury could find persuasive. If there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. Although we concluded above that substantial evidence supports the finding that the defendant committed at least three qualifying Vehicle Code violations during the pursuit, there is also substantial evidence that he did not commit at least three qualifying violations. Accordingly, the trial court erred by failing to instruct the jury sua sponte regarding this lesser included offense.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239–240

People v. Breverman (1998) 19 Cal.4th 142, 154

People v. Williams (2015) 61 Cal.4th 1244, 1263

People v. Kraft (2000) 23 Cal.4th 978, 1063

Fourth Holding:

We apply the generally applicable California test for harmless error under which we deem an error harmless unless it is reasonably probable the outcome would have been different in the absence of the error. Other than in cases involving the unique relationship between murder and voluntary manslaughter, the general rule is that the failure to instruct on other forms of lesser included offenses in noncapital cases is an error of state law. A reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. In assessing prejudice, we consider both the magnitude of the error and the closeness of the case. Applying this standard, we find the error here prejudicial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 251

People v. Watson (1956) 46 Cal.2d 818

People v. Hendrix (2022) 13 Cal.5th 933, 944

People v. Vasquez (2018) 30 Cal.App.5th 786, 798

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

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

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

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

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

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that 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 California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

People v. Reyes (2023) 14 Cal.5th 981, 986,

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632

Discretion, Standard of review, Sufficiency of and substantial evidence

Case: 000178

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for pretrial mental health diversion under Penal Code section 1001.36. The People concede that the court erred in finding the him ineligible for diversion. The judgment is conditionally reversed, the order denying the defendant’s motion for mental health diversion is vacated, and the matter is remanded for the trial court to reconsider his diversion motion consistent with this opinion. If the trial court again denies the motion, the judgment shall be reinstated.

First Holding:

A trial court may grant mental health diversion to defendants who satisfy the eligibility and suitability requirements set forth in the statute. A defendant is eligible for diversion if he or she has been diagnosed with a qualifying mental disorder and that disorder was a significant factor in the commission of the charged offense. A defendant is suitable for diversion if the defendant’s symptoms would respond to mental health treatment, the defendant consents to diversion and waives the right to a speedy trial, the defendant agrees to comply with treatment as a condition of diversion, and the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36

Second Holding:

We review a trial court’s denial of 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. 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. In making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

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

Third Holding:

Under the statute, a trial court must presume that a defendant’s diagnosed mental disorder was a significant factor in the commission of the crime, 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. The prosecution bears the burden of presenting such clear and convincing evidence. The absence of evidence proving that a defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that a defendant’s mental disorder was not a factor in the commission of the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The meaning of a statute is a question of law that we review de novo.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an 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. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000166

Posted on by Gary McCurdy

Error and/or relief

The court imposed separate punishments for an indivisible course of conduct. We conclude that all but one of the offenses was temporally distinct and served an independent objective, separate punishments were appropriate. We agree that the defendant broke down victim’s door as part of the robbery, as he had no separate motive to break it. We direct that the one-year sentence for vandalism of the door be stayed.

First Holding:

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 thus precludes multiple punishments for a single act or indivisible course of conduct. If a single action or course of conduct by a defendant violates multiple laws, the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, but the trial court may impose sentence for only one offense and must stay the sentence for the others.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Sek (2022) 74 Cal.App.5th 657, 673

Second Holding:

The question of 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. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If a defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Multiple punishments are also permissible 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 and creating a new risk of harm.

Authority:

People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113

People v. Jackson (2016) 1 Cal.5th 269, 354

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

People v. Gaynor (2019) 42 Cal.App.5th 794, 800, 804

Third Holding:

We review for substantial evidence the trial court’s express or implied findings regarding the defendant’s intent and objective viewing the trial court’s determination in the light most favorable to the respondent and presuming the existence of every fact the court could reasonably deduce from the evidence. We will uphold the court’s findings in support of its determination if substantial evidence supports them.

Authority:

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

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

People v. Osband (1996) 13 Cal.4th 622, 730–731

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. 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:

PEN 1170b)(1)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply Chapman. Such errors are 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. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Appellate Principles, Sentencing, Standard of review

Case: 000156

Posted on by Gary McCurdy

Error and/or relief

On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.

First Holding:

At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

Second Holding:

Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.

We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58

Third Holding:

We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033

People v. Burke (2023) 89 Cal.App.5th 237, 242

Fourth Holding:

Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]

Fifth Holding:

On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice

Authority:

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

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. The prima facie inquiry under section 1172.6(c) is limited. The court takes 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 rely on the record of conviction in determining whether defendant has made a prima facie showing, and 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.

Authority:

PC 1172.6(c) and (d)

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

Third Holding:

At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568

Fourth Holding:

We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous.

Authority:

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

People v. Eynon (2021) 68 Cal.App.5th 967, 976

Fifth Holding:

The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage]

Sixth Holding:

In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977-978

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory]

Seventh Holding:

Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]

People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer]