Tag Archives: Standard of review

Eighth Amendment, Sentencing

Case: 000091

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a petition for recall and resentencing under Penal Code section 1170(d). He was serving a sentence of more than 50 years to life for offenses committed when he was 14 and tried as an adult. We agree with the defendant that he adequately demonstrated he did not have prior juvenile felony adjudications for assault or other disqualifying felonies, contrary to the finding of the trial court. We agree that the prior offense was not adjudicated as a felony. Section 1170(d) requires that he satisfy at least one of the specified criteria, which he has. On that basis, we are compelled to reverse the order denying his petition for recall and resentencing.

First Holding:

In light of the ban against cruel and unusual punishment under the Eighth Amendment, in 2013 the Legislature created a procedure for a juvenile offender sentenced to life without the possibility of parole (LWOP) to petition for a recall of the offender’s sentence and resentencing after the offender has served at least 15 years of the sentence.

Authority:

PEN 1170(d)

In re Kirchner (2017) 2 Cal.5th 1040, 1049

Graham v. Florida (2010) 560 U.S. 48

People v. Heard (2022) 83 Cal.App.5th 608, 622–626

Second Holding:

There is a conflict. Some courts have held that it violates the constitutional promise of equal protection of the laws to deny relief under the statute to juvenile offenders sentenced to lengthy terms of years amounting to the functional equivalent of LWOP. Other courts have concluded that section 3051 moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 450–454

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054–1061

People v. Cabrera (2025) 111 Cal.App.5th 650, 653

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123

Third Holding:

We apply the substantial evidence standard of review when considering disputed findings of fact made by trial courts. Under that standard of review, we review the record in the light most favorable to the order to determine whether the order is supported by substantial evidence. Substantial evidence is evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value, and substantial proof of the essentials which the law requires in a particular case.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, 506–507

People v. Harring (2021) 69 Cal.App.5th 483, 495

People v. James (1985) 176 Cal.App.3d 795, 798

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006

Fourth Holding:

Insofar as the defendant’s claims require us to interpret section 1170(d), they present questions of statutory construction subject to de novo review. Statutory construction begins with the plain, commonsense meaning of the words in the statute, because it is generally the most reliable indicator of legislative intent and purpose. A statute is not to be read in isolation, but construed in context and with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, 506

People v. Harring (2021) 69 Cal.App.5th 483, 495

People v. Heard (2022) 83 Cal.App.5th 608, 622–623

Fifth Holding:

Penal Code section 1170(d) states that, when the defendant seeks relief under that section, the petition shall include the defendant’s statement that the defendant was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendant’s statement describing their remorse and work towards rehabilitation, and the defendant’s statement that one of the following is true: (A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law; (B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall; (C) The defendant committed the offense with at least one adult codefendant; (D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

Authority:

PEN 1170(d)

Amelioration, Duty of the court, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000088

Posted on by Gary McCurdy

Error and/or relief

The trial court made several errors in resentencing under Penal Code section 1172.5. It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee. On remand the court must also recalculate credits and correct the abstract of judgment. [GARY NOTE: The opinion also provided extensive discussion of the application of section 1385, regarding dismissals in the furtherance or interest of justice, touching on abuse of discretion, etc., that were resolved against the defendant on appeal. I have provided a few principles and authorities on those points for educational reasons, even though they did not support relief for the defendant in this instance.]

First Holding:

Section 1172.75 declares legally invalid all one-year prior prison term enhancements except those for sexually violent offenses described in WI Code section 6600(b). Because the defendant’s two priors are not sexually violent offenses, they were legally invalid and should have been stricken.

Authority:

PEN 1172.75

Second Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) modified the gang enhancement by adding new requirements that did not previously exist. Because AB 333 retroactively applies to people, like defendant, who have been granted a resentencing hearing, the trial court erred in not assessing whether the jury’s findings in this case otherwise addressed the new requirements or whether the jury’s failure to do so was harmless beyond a reasonable doubt.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 395-396

Third Holding:

The trial court imposed a $10 administrative screening fee ostensibly under section 1463.07 in November 2018. This is unenforceable because our Legislature in 2021 repealed that section and nullified prior fees imposed under that section.

Authority:

PEN 1465.9

Fourth Holding:

It was not necessary for the trial court to respond to all of the defendant’s contentions at the sentencing hearing. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules.

Authority:

Rules of Court, rule 4.409 [sentencing factors will be deemed to have been considered unless the record affirmatively reflects otherwise]

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322

People v. Brugman (2021) 62 Cal.App.5th 608, 637

Fifth Holding:

We review the exercise of sentencing discretion for an abuse of discretion but recognize that a trial court’s reliance on an incorrect legal standard constitutes such an abuse. Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Sixth Holding:

Despite the use of the phrase “shall be dismissed,” section 1385’s provisions that require a court to give great weight in favor of dismissal do not apply where a trial court finds that dismissal of the enhancements would endanger public safety.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

People v. Mazur (2023) 97 Cal.App.5th 438, 444-446

People v. Cota (2023) 97 Cal.App.5th 318, 335-337

People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1290

People v. Anderson (2023) 88 Cal.App.5th 233, 238-241

People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21

Fourth Amendment, Standard of review

Case 000086

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his motion to suppress evidence, contending the court erred when it found police officers had reasonable suspicion to detain him. Because we have concluded there was insufficient evidence that defendant’s conduct, when considered in the totality of circumstances, supported a reasonable suspicion that he was, or was about to be, engaged in activity relating to crime, we agree with defendant that the officers lacked reasonable suspicion to detain him. Accordingly, the subsequent recovery of the handgun was the product of an illegal detention and arrest and evidence related to the recovery was subject to exclusion.

[GARY NOTE: The facts relied on by the court are too extensive to adequately summarize. Essentially, the officer saw a group of people milling about. When some appeared to notice him, they ran off, though the defendant and one other did not run off. The officer described various body movements and claimed to have seen something that was not borne out by the appellate court’s review of the body cam video.]

First Holding:

The Fourth Amendment permits an officer to initiate a brief investigative stop when the officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts cannot reasonably demand scientific certainty where none exists. Rather, they must permit officers to make commonsense judgments and inferences about human behavior.

Authority:

Kansas v. Glover (2020) 589 U.S. 376, 380–381

People v. Flores (2024) 15 Cal.5th 1032, 1041

Second Holding:

The officer’s subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.

Authority:

People v. Wells (2006) 38 Cal.4th 1078, 1083

Third Holding:

In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. In doing so we do not consider each fact in isolation. Instead, we must consider the totality of the circumstances—the whole picture.

Authority:

People v. Flores (2024) 15 Cal.5th 1032, 1043

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

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

Second 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.

Authority:

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

Third Holding:

The United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses. A judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that 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]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) 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:

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

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

Sixth Holding:

When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776 [To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Amelioration, Elements of crime, Evidence, Jury trial, Racial Justice Act, Statutory interpretation, Sufficiency of and substantial evidence

Case 000081

Posted on by Gary McCurdy

Error and/or relief

[Gary note: Grabba cuppa. This case rivaled Fort Knox for gold.]

We agree with the parties that the gang offense must be reversed and the gang-related allegations must be vacated, and that the sentences on several witness dissuasion counts may be readdressed upon remand. We further agree with the defendant that the prosecution should not have been permitted to play and introduce two rap music videos under Evidence Code section 352, although we conclude that the error was harmless given our reversal of the gang offense and the vacation of the gang-related allegations. In addition, we find that the defendant has established a prima facie case that the prosecution violated the California Racial Justice Act by playing and using the rap music videos at trial, and we remand this matter to the trial court to conduct a hearing to determine if a violation of the California Racial Justice Act has been proven by a preponderance of the evidence.

First Holding:

AB 333 made the following changes: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Authority:

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

Second Holding:

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Authority:

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

Third Holding:

AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Authority:

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

Fourth Holding:

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

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

Fifth Holding:

We determine whether substantial evidence supports a jury’s finding by inquiring whether evidence was presented from which a reasonable trier of fact could conclude, beyond a reasonable doubt, that the prosecution sustained its burden of proof. Although we assess whether the evidence is inherently credible and of solid value, we must also view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 488

Sixth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Renteria (2022) 13 Cal.5th 951, 964 [Where there is no proof the defendant acted in association with or at the direction of the gang, the prosecution cannot rely on the joint nature of the offense to establish either the requisite benefit to the gang or the specific intent to promote the criminal activity of gang members]

Seventh Holding:

We also will vacate the gang-related firearm allegations under section 12022.53(b) and (e)(1).

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746 [reversing affirmance of firearm enhancement because the firearm enhancement alleged under section 12022.53(e)(1) is contingent on a true finding on the gang enhancement under section 186.22]

People v. Campbell (2023) 98 Cal.App.5th 350, 376 [the amendments AB 333 made apply retroactively to the gang-related gun use enhancement under section 12022.53(e)]

Eighth Holding:

Because we conclude that substantial evidence does not support the conviction on the gang offense and the true findings on the gang-related allegations under the law at the time of the defendant’s trial, the defendant may not be retried concerning these matters.

Authority:

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

Ninth Holding:

The California Supreme Court recently held that Evidence Code section 352.2 [rap video evidence] does not apply retroactively to cases not yet final on appeal. Evidence Code section 352.2 has at best an attenuated and inconsistent connection to reduced punishment and there is good reason why the Legislature might not have intended for its approach toward the admissibility of creative expressions to apply retroactively, and thus the inference of retroactive application does not attach to the statute. However, the court noted that Evidence Code section 352.2, by providing additional direction for evaluating the admissibility of creative expressions, sets forth several factors that trial courts already might have folded into an evaluation of whether this type of material was admissible under Evidence Code sections 352 and 1101.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 692, 693

Tenth Holding:

While the Supreme Court’s decision in Aguirre dictates that Evidence Code section 352.2 does not apply retroactively to the defendant’s case, we conclude that the trial court abused its discretion under Evidence Code section 352 by permitting the prosecutor to play the videos in his opening statement and by admitting evidence of the videos. A Racial Justice Act [RJA] violation occurs when an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, among other circumstances. A central premise of the RJA is that bias can be unconscious and implied as well as conscious and express.

Authority:

PEN 745

Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824

Eleventh Holding:

To forestall the defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits of his’s RJA claim. This approach is particularly appropriate here, where we can discern no rational tactical reason for the defendant’s counsel not raising the RJA issue when counsel already filed a motion for a new trial concerning the playing and use of the rap music videos.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reviewing court may reach forfeited claim where ineffective assistance of counsel claimed]

People v. Quintero (2024) 107 Cal.App.5th 1060, 1074 [addressing merits of forfeited RJA claim because defendant alleged he received ineffective assistance of counsel by failing to object]

Twelfth Holding:

The fact that the prosecutor did not utter the words in the video does not foreclose an RJA claim. The RJA expressly includes in its description of qualifying acts an attorney using racially discriminatory language, but it also includes an attorney otherwise exhibiting bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

Authority:

PEN 745(a)(2)

Thirteenth Holding:

The RJA does not define racial bias or animus, but it specifies that the moving party is not required to prove intentional discrimination. Indeed, the statement of Legislative intent behind the RJA’s enactment states that the act was aimed at addressing the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. Based on the lack of probative value the videos had, the danger of racial bias that the “A Day in the Life” video particularly presented, and the manner in which the prosecutor used the videos at trial, we conclude that the defendant has satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation.

Authority:

PEN 745(c)(2)

People v. Howard (2024) 104 Cal.App.5th 625, 656

Fourteenth Holding:

Challenges for cause are constitutionally guaranteed under the Sixth Amendment. Our state Constitution provides the same general right to a fair trial and an impartial jury. In California, criminal defendants are allowed an unlimited number of challenges to prospective jurors for cause, which the defendants must use before exercising any peremptory challenges.

Authority:

People v. Black (2014) 58 Cal.4th 912, 916

Fifteenth Holding:

On forfeiture of jury challenge because defendant still had peremptory challenges available, the defense was afforded 30 total peremptory challenges, with 20 of the challenges being joint challenges and the remaining 10 split between the two defendants. The defense had peremptory challenges available when it accepted the jury as seated. The California Supreme Court has repeatedly rejected requests to abandon the forfeiture rule concerning denials of juror challenges for cause in analogous situations where the three requirements to preserve the issue for appeal were not met.

Authority:

People v. Suarez (2020) 10 Cal.5th 116, 143

People v. Winbush (2017) 2 Cal.5th 402, 425-426

People v. Rangel (2016) 62 Cal.4th 1192, 1209-1210

People v. Manibusan (2013) 58 Cal.4th 40, 61

People v. Jones (2012) 54 Cal.4th 1, 45-46

People v. Mills (2010) 48 Cal.4th 158, 186

People v. Carasi (2008) 44 Cal.4th 1263, 1290

Sixteenth Holding:

Evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. In applying this statute we evaluate the risk of undue prejudice, that is, evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 724

People v. Salcido (2008) 44 Cal.4th 93, 148

Seventeenth Holding:

A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.

Authority:

People v. Lewis (2001) 26 Cal.4th 334, 372-373

People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

Eighteenth Holding:

The weighing process under Evidence Code section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. The record must affirmatively show that the trial judge did in fact weigh prejudice against probative value, but no more is required. We review the trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 for abuse and will not disturb the court’s ruling except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.

Authority:

People v. Megown (2018) 28 Cal.App.5th 157, 164

Nineteenth Holding:

A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 964

Twentieth Holding:

When evaluating the admission of rap music, courts have recognized it has minimal probative value to the extent that it depends on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. We have also held that the relevance of rap lyrics is further diminished when they lack foundation. These foundational components include whether the defendant authored the lyrics. Thus, absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 477, 478

Twenty-first Holding:

We do not mean to suggest that lyrics are never probative of their literal truth. For example, where lyrics are written within a reasonable period of time before or after the charged crime and bear a sufficient level of similarity to the charged crime, their probative value as a statement of fact is increased. It may also be that lyrics with sufficient corroboration from other evidence will have increased probative value. However, corroborating evidence may also render the lyrics cumulative.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 96

Twenty-second Holding:

Section 29800(a)(1) states that any person who has been convicted of a felony, who has been convicted of an enumerated offense, or who is addicted to the use of any narcotic drug and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. As relevant here: This offense has three elements: (1) the defendant possessed a firearm, (2) the defendant knew that he possessed the firearm, and (3) the defendant had previously been convicted of a felony.

Authority:

People v. Clark (2021) 62 Cal.App.5th 939, 958

Twenty-third Holding:

Where a defendant will stipulate to ex-felon status, evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue. Thus, to prove the third element of a violation of section 29800(a)(1), one of two alternatives may be used: (1) The prosecution can prove the conviction in open court, and that proof can include both the fact that the defendant has previously been convicted of a felony offense as well as the nature of the felony involved; or (2) the defendant can stipulate to having a felony conviction and thereby keep from the jury the nature of the particular felony. When the defendant stipulates to a prior conviction, “the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.

Authority:

People v. Valentine (1986) 42 Cal.3d 170, 173

People v. Sapp (2003) 31 Cal.4th 240, 261, 262

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, 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.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1038

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, 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. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

Authority:

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

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

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

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

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

Fifth Amendment, Standard of review

Case 000071

Posted on by Gary McCurdy

Error and/or relief

The trial court should have granted the defendant’s motion to suppress his interrogation statements because he invoked his right to counsel under Miranda. His statements were involuntary and coerced. We conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial.

First Holding:

A custodial interrogation can come in various forms and does not require questions. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Second Holding:

Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect.

Authority:

Pennsylvania v. Muniz (1990) 496 U.S. 582, 601

United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975

E

Third Holding:

When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation.

Authority:

United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147

Fourth Holding:

Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them.

Authority:

Edwards v. Arizona (1981) 451 U.S. 477, 484–485

People v. Johnson (2022) 12 Cal.5th 544, 580

Michigan v. Harvey (1990) 494 U.S. 344, 350

People v. Henderson (2020) 9 Cal.5th 1013, 1022

People v. Avalos (2022) 85 Cal.App.5th 926, 932

Fifth Holding:

The error requires reversal unless it is harmless beyond a reasonable doubt.

Authority:

People v. Elizalde (2015) 61 Cal.4th 523

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

Sixth Holding:

We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.

Authority:

People v. Johnson (2022) 12 Cal.5th 544, 578

People v. Henderson (2020) 9 Cal.5th 1013, 1023

People v. Suarez (2020) 10 Cal.5th 116, 158

Amelioration, Appellate Principles, Duty of counsel, Sentencing, Standard of review

Case 000069

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding:

In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made.

Authority:

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

Second Holding:

We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition.

Authority:

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

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

Third Holding:

A trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations, regardless of whether the defendant stipulated to the transcript as the factual basis of a plea.

Authority:

People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12

Fourth Holding:

Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469

People v. Irvin (1991) 230 Cal.App.3d 180, 192

Evidence, Standard of review, Sufficiency of and substantial evidence

Case 000059

Posted on by Gary McCurdy

Error and/or relief

We find there is insufficient evidence to support one of the convictions for sexual penetration. We find no other errors. Thus, we reverse in part, affirm in part, and remand for resentencing.

First Holding:

When considering a challenge to the sufficiency of the evidence we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Lindberg (2008) 45 Cal.4th 1, 27

Second Holding:

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.

Authority:

People v. Young (2005) 34 Cal.4th 1149, 1181

Third Holding:

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

Authority:

People v. Bloom (1989) 48 Cal.3d 1194, 1208

Fourth Holding:

Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.

Authority:

People v. Bloom (1989) 48 Cal.3d 1194, 1208

Probation Parole PRCS, Standard of review

Case 000045

Posted on by Gary McCurdy

Error and/or relief

On appeal, the minor contends that the electronics search conditions should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or, at a minimum, modified as unconstitutionally overbroad. He also maintains that the association condition should be modified due to its overbreadth. We find the electronics search conditions reasonable under Lent, but we accept the People’s concession that they are unconstitutionally overbroad. We see no constitutional infirmity in the association condition. We therefore remand the matter to the trial court to strike or modify the electronics search condition. Remanded to modify terms 9 and 16

First Holding:

Under Lent, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. We find dispositive the first element of Lent’s test, which asks whether the probation condition has no relationship to the conviction. Here, the record supports an implied finding that there was a relationship between the offense and minor’s use of an electronic device and the internet.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patton (2019) 41 Cal.App.5th 934, 945

Second Holding:

The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal. Only facial constitutional challenges to a probation condition that are capable of correction without reference to the particular sentencing record are exempt from the general forfeiture rule.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 234-235, 237

In re Sheena K. (2007) 40 Cal.4th 875, 887

Third Holding:

The court may nevertheless exercise its discretion to consider the merits of both his Lent and constitutional claims in light of the People’s concession and the minor’s alternative contention that his trial counsel’s failure to make an adequate objection constituted ineffective assistance.

Authority:

People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions]

Fourth Holding:

In applying the Lent test, we review the conditions imposed for abuse of discretion.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Salvador (2022) 83 Cal.App.5th 57, 62, 64

Fifth Holding:

We review constitutional overbreadth questions de novo

Authority:

In re P.O. (2016) 246 Cal.App.4th 288, 297

Sixth Holding:

The electronic search conditions here were overly broad.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 [If a probation condition serves to rehabilitate and protect public safety, the condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is not entitled to the same degree of constitutional protection as other citizens.]

In re Sheena K. (2007) 40 Cal.4th 875, 890 [A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.]

In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement]

Duty of the court, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000037

Posted on by Gary McCurdy

Error and/or relief

The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.

First Holding:

A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Second Holding:

The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one.

Authority:

People v. Hardy (2018) 5 Cal.5th 56, 98

Third Holding:

In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 161 [disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260]

Fourth Holding:

Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Fifth Holding:

Doubts about whether an instruction is warranted should be resolved in favor of the accused.

Authority:

People v. Tufunga (1999) 21 Cal.4th 935, 944

Sixth Holding:

Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record.

Authority:

Reid v. Google (2010) 50 Cal.4th 512, 524, 532

Seventh Holding:

[Gary’s short description of an extensive discussion in the opinion:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s post-arrest exercise of his right to remain silent. Under Doyle, in essence, the prosecution may not comment on the defendant’s exercise of his right to remain silent. Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel.

Authority:

Griffin v. California (1965) 380 U.S. 609

Doyle v. Ohio (1976) 426 U.S. 610

People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings]

People v. Fabert (1982) 127 Cal.App.3d 604, 609

People v. Bryant Smith and Wheeler (2014) 60 Cal.4th 335, 387

Eighth Holding:

The prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. Griffin/Doyle error requires reversal unless the court can conclude it was harmless beyond a reasonable doubt. The appellate court must determine, absent the prosecutor’s reference to defendant’s failure to testify, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Hardy (1992) 2 Cal.4th 86, 153–154

United States v. Hasting (1983) 461 U.S. 499, 507–509

Ninth Holding:

Indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. But the error is prejudicial if the evidence against defendant is less than overwhelming and the improper comment touched a live nerve in the appellant’s defense. It is prejudicial if it served to fill an evidentiary gap in the prosecution’s case. The appellate court must determine whether the comment actually or implicitly invited the jury to infer guilt from silence.

Authority:

People v. Hovey (1988) 44 Cal.3d 543, 572

People v. Galloway (1979) 100 Cal.App.3d 551, 560

People v. Medina (1974) 41 Cal.App.3d 438, 463

People v. Hardy (1992) 2 Cal.4th 86, 159

Tenth Holding:

The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction.

Authority:

People v. Galloway (1979) 100 Cal.App.3d 551, 560

Eleventh Holding:

Griffin prohibits the prosecution from so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Guzman (2000) 80 Cal.App.4th 1282, 1287

People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present]

Probation Parole PRCS, Sentencing, Standard of review

Case 000034

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them

First Holding:

Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.

Authority:

PEN 1203.1

Second Holding:

A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 498

People v. Lent (1975) 15 Cal.3d 481, 486

Third Holding:

The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition.

Authority:

People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3

Fourth Holding:

A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 233-234

Fifth Holding:

Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights.

Authority:

People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127

In re I.V. (2017) 11 Cal.App.5th 249, 260

In re Sheena K. (2007) 40 Cal.4th 875, 890

Sixth Holding:

A probation condition must be sufficiently definite for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 500

Seventh Holding:

A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad

Authority:

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

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be narrowly drawn]

Eighth Holding:

We review de novo constitutional challenges to probation conditions.

Authority:

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172