Tag Archives: Standard of review

Amelioration, Elements of crime, Sentencing, Standard of review

Case 001088

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying at the prima facie stage the defendant’s 1172.6 petition for recall of his sentence.

First Holding:

In 2018, the Legislature amended the law of homicide, eliminating several theories of liability based on imputed malice. It has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted. Under what is now section 1172.6, it provided a mechanism for individuals previously convicted of murder to show their entitlement to retroactive relief under the legislative changes.

Pertinent to this case, SB 1437 added section 189(e), providing felony-murder liability only if the defendant:

(1) was the actual killer;

(2) was not the actual killer but, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder; or

(3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 1172.6(a)

People v. Patton (2025) 17 Cal.5th 549, 556

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

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

Second Holding:

SB 775 expanded eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Muhammad (2024) 107 Cal.App.5th 268, 275

Third Holding:

A section 1172.6 petition may be filed by a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter when certain specified conditions apply.

An individual convicted under prior law may petition to vacate the conviction and be resentenced on any remaining counts, if he or she could not now be convicted of murder or attempted murder because of the changes made by SB 1437.

Upon receipt of a petition containing all required information, the trial court must appoint counsel to represent the petitioner, if requested. The trial court must also set a briefing schedule and hold a prima facie hearing. If the trial court determines that petitioner has made a prima facie case for relief, it must issue an order to show cause and conduct an evidentiary hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708-709

People v. Lewis (2021) 11 Cal.5th 952, 959-960

Fourth Holding:

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. If so, the court must issue an order to show cause. Acourt should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.

However, 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:

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

Fifth Holding:

Whether the record of conviction shows that petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question we review de novo.

(Gary note: The court then continued by determining that the record the trial court was permitted to review at the prima facie stage did not necessarily reflect that the defendant was ineligible for relief under section 1172.6 and remanded to the trial court to issue an order to show cause and conduct an evidentiary hearing.)

Authority:

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

Amelioration, Appellate Principles, Elements of crime, Plea bargains, Sentencing, Standard of review, Vicarious liability

Case 001078

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition under section 1172.6 at the prima facie stage, reasoning that the defendant was ineligible for relief because his plea occurred after the Legislature had eliminated liability for attempted murder under the natural and probable consequences doctrine. The trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Further, the minutes of the sentencing and the abstract of judgment each contain separate errors, which must be corrected on remand.

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, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to seek resentencing.

Authority:

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

Second Holding:

In 2021, the Legislature adopted SB 775 to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing under section 1172.6. 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. The law took effect on January 1, 2022.

Authority:

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

Third Holding:

A person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when:

(1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine;

(2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and

(3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Fourth Holding:

After briefing on the petition, the trial court must hold a hearing to determine whether the petitioner has made out a prima facie case for relief. If the petition and record establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of attempted murder under section 188 as amended.

If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6(c), (d)

People v. Strong (2022) 13 Cal.5th 698, 708-709

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. The court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

The record of conviction necessarily informs the court’s inquiry. If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. A petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

But a trial court may not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 557, 563

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

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

Seventh Holding:

When the defendant changed his plea in 2021, before SB 775 took effect, the Courts of Appeal were divided on whether SB 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution.

It was not until SB 775 became effective in January 2022—several months after the defendant pleaded guilty—that the law expressly eliminated that possibility. It therefore would have been theoretically possible, at the time of the defendant’s prosecution, for the People to proceed against him under a natural and probable consequences theory of attempted murder.

Accordingly, the trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Authority:

People v. Alaybue (2020) 51 Cal.App.5th 207, 222

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

Eighth Holding:

The sentencing minutes incorrectly reflect that the defendant’s attempted murders were willful, deliberate, and premeditated. We direct the trial court to amend the minutes to delete the “willful, deliberate, and premeditated” language.

The abstract of judgment incorrectly reflects the defendant’s sentence for the two attempted murders as 15 years and 4 years, respectively. If the attempted murders are not vacated on remand after hearing on the 1172.6 petition, the trial court shall amend the abstract of judgment to correctly state that his sentences for those two convictions are nine years and two years, four months, respectively.

(Gary note: The court did not cite authority for its orders to correct the minutes and the abstract of judgment, though there is much authority available. I have set forth a few that would support the court’s action.)

Authority:

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

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

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

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

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

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

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review, Vicarious liability

Case 001077

Posted on by Gary McCurdy

Error and/or relief

Because there was a change in the statutory or case law, previous petitions under section 1172.6 are not a bar to a petition filed in reliance on the change in the law. It was error to summarily deny the petition.

First Holding:

Neither the express language of section 1172.6 nor the stated purpose of the legislation supports limiting access to relief under section 1172.6 where the subsequent petition rested on new legal authority that challenged the basis for the superior court’s summary denial of the previous petition. Enactment of SB 775 constituted new legal authority that entitled the defendant to file a new petition.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 946-947

Second Holding:

A defendant whose resentencing petition is denied before an order to show cause issues must demonstrate there is a reasonable probability that in the absence of the error the defendant would have obtained a more favorable result.

The record of conviction here fails to establish that defendant was ineligible for resentencing under section 1172.6 as a matter of law. Accordingly, it is apparent that but for the trial court’s error, defendant would have obtained a more favorable result.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 974

Third Holding:

The jury was instructed that an aider and abettor must have intended to commit, or aid and abet the felony of robbery (in this case) before or at the time that she caused the death. This was error. Under section 189(e)(2), a nonkiller must intend to kill and must assist the actual killer in the lethal act itself to be guilty of felony murder.

The instructions did not require the jury to make that finding. Thus, the record of conviction does not establish that the defendant is ineligible for relief as a matter of law and the trial court’s error in dismissing her petition for resentencing as an invalid, successive petition was not harmless. The order denying defendant’s petition for resentencing under section 1172.6 is reversed and the matter is remanded for further proceedings.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678, 693

Abstracts and Minutes, Discretion, Sentencing, Standard of review

Case 001074

Posted on by Gary McCurdy

Error and/or relief

The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.

The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.

The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.

Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.

First Holding:

Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171

Second Holding:

Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.

The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

Authority:

PEN 1172.1

Third Holding:

We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1175

People v. Olea (2025) 115 Cal.App.5th 889, 902–903

Fourth Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1171

Fifth Holding:

Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.

Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.

Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.

The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]

People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175

People v. Olea (2025) 115 Cal.App.5th 889, 901-902

Sixth Holding:

The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.

Authority:

PEN 1172.1(a)(3)(B)

People v. Mendoza (2022) 74 Cal.App.5th 843, 856

Seventh Holding:

The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 11465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903

Eighth Holding:

The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]

People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]

Discretion, Sentencing, Standard of review, Statutory interpretation

Case 001070

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in believing that Health and Safety Code section 11358 is not a “wobbler”–a crime that may be punished as either a misdemeanor or a felony. Remanded for the court to reconsider the defendant’s motion to reduce the offense to a misdemeanor.

First Holding:

A “wobbler” is an offense that may be charged and punished as either a felony or a misdemeanor. If a defendant has been convicted of a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17(b) govern the court’s exercise of discretion to classify the crime as a misdemeanor.

Authority:

PEN 17

Davis v. Municipal Court (1988) 46 Cal.3d 64, 70

People v. Park (2013) 56 Cal.4th 782, 790

Second Holding:

When a crime is punishable, in the discretion of the court, either by imprisonment in state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: … (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

Authority:

PEN 17(b)(3)

Third Holding:

We review a trial court’s decision not to declare a wobbler to be a misdemeanor for abuse of discretion. When a trial court’s decision rests on an error of law, that decision is an abuse of discretion. We independently review questions of statutory interpretation.

Authority:

People v. Lee (2017) 16 Cal.App.5th 861, 866

People v. Lopez (2021) 66 Cal.App.5th 561, 574

People v. Mendoza (2023) 88 Cal.App.5th 287, 294

Fourth Holding:

Health and Safety Code section 11358(c) provides that a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished as a misdemeanor. Section 11358(d) further provides that, notwithstanding subdivision (c), planting, cultivation, harvesting, drying, or processing of more than six cannabis plants by an adult may be punished as a felony if certain aggravating circumstances are present.

(Gary note: Boiled down, the specified aggravating circumstances are of three ilks (the numeration being mine): (a) one or more “super strike” prior convictions (see Penal Code section 667(e)(2)(c)(iv)) or a prior conviction for an offense requiring sex offender registration under Penal Code section 290(c); (b) this is at least the third offense under 11358(c); and (c), the current offense resulted in violation of any of several specified environmental protection provisions.)

Authority:

HSC 11358(c)

Fifth Holding:

In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. We turn first to the statutory language, giving the words their ordinary meaning. If the statutory language is not ambiguous, then the plain meaning of the language governs. If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the analyses and arguments contained in the official ballot pamphlet, and the ostensible objects to be achieved.

Under well-settled principles of statutory construction, we ordinarily construe the word “may” as permissive and the word “shall” as mandatory, particularly when a single statute uses both terms. In other words, when the Legislature has, as here, used both “shall” and “may” in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively.

Authority:

People v. Lopez (2005) 34 Cal.4th 1002, 1006.

Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542

Sixth Holding:

The plain language of section 11358 is unambiguous. Misdemeanor punishment of the offense defined by subdivision (c) is mandatory, because the statute there says “shall.” But felony punishment of the same conduct when the aggravating circumstances listed in subdivision (d) are present is discretionary, because the statute there says “may.”

Because felony punishment under subdivision (d) is discretionary, the offense defined by that subdivision is a wobbler. The court therefore erred by concluding that subdivision (d) is a straight felony, and the court’s denial of the defendant’s motion under Penal Code section 17(b) on that basis was an abuse of discretion.

Authority:

PEN 17(b)

(Gary note: For your convenience, here are subdivisions (b) (c), (e), and (f) of section 17 as of the writing of this summary. I omitted subdivision (d), which  pertains to infractions.)

PEN 17
(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to a secure youth treatment facility, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) (A) When the court determines, prior to trial, either on its own motion or the motion of a party, that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

(B) Following a denial of a motion pursuant to subparagraph (A), a subsequent motion pursuant to subparagraph (A) may only be made upon a showing of changed circumstances, which includes, but is not limited to, newly available facts relevant to the charge or defendant’s personal circumstances, or change in the applicable law.

(c) When a defendant is committed to a secure youth treatment facility for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the secure youth treatment facility, thereafter be deemed a misdemeanor for all purposes.

…….

(e) This section does not authorize a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.

(f) When the court exercises its discretion under this section, an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.