Tag Archives: Statutory interpretation

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.

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 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.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

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

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Sentencing, Statutory interpretation

Case 001045

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to decline to award conduct credit on two of the counts, because their offenses were not ineligible for conduct credit at the time they were committed. Further, it was error to issue a no-visitation order on behalf of a person who is no longer a minor.

First Holding:

As a result of amendments to the One Strike Law in 2006 (section 667.61) persons serving an indeterminate sentence under that section are not entitled to credit for time served beyond the actual days they were in custody. There is no reduction for good behavior or performing work.

Although section 667.61 as amended makes no mention of conduct credit, the amendment deleted a previous reference that limited the conduct credit to 15% of the sentence imposed. The legislative history does make it abundantly clear that the intent was to eliminate conduct credit for such persons.

Authority:

Penal Code section 667.61

People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268

People v. Adams (2018) 28 Cal.App.5th 170, 182

Second Holding:

The amendment cannot be applied retroactively. Both the federal and the California Constitutions prohibit ex post facto laws. The federal and California ex post facto clauses do not just bar retroactively increased prison terms. They also prohibit any law that retroactively disadvantages the offender by increasing the punishment for crimes committed before the law’s enactment.

Consequently, the ex post facto clauses prohibit any law that constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. As it is unclear whether the offenses described in two of the counts were committed before or after the amendment’s effective z People (September 20, 2006, as urgency legislation), conduct credit cannot be denied on those counts.

Authority:

U.S. Const., art. I, sec. 10, cl. 1

Cal. Const., art. I, sec. 9

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Weaver v. Graham (1981) 450 U.S. 24, 35-36

People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [agreeing that a change in law ending the defendant’s ability to earn good conduct credit violated the proscription against ex post facto laws]

Third Holding:

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. Consequently, when the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261 [Verdicts cannot be deemed sufficient to establish the z People of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurred on or after the z People of the punishment’s enactment]

Fourth Holding:

Under section 1202.5, if a defendant is sentenced to prison for committing a lewd act under section 288, and the victim is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.

As this section authorizes prohibitions against visitation with a child victim, it has been interpreted to apply only to victims who are under the age of 18 at the time of the contemplated visitation. Here, the victim was in her 20s at the time of sentencing, and the court therefore lacked authority to include her in the no-visitation order.

Authority:

PEN 1202.05

People v. Scott (2012) 203 Cal.App.4th 1303, 1323

Amelioration, Eighth Amendment, Juveniles, Probation Parole PRCS, Sentencing

Case 001031

Posted on by Gary McCurdy

Error and/or relief

A sentence of more than 72 years to life plus two life terms imposed in 1995 on a 16-year-old minor is the functional equivalent of life without the possibility of parole. The trial court erred in denying the defendant’s motion for resentencing under section 1170(d)(1).

If the court resentences, the court must then consider whether to transfer the case back to juvenile court for a transfer hearing to determine whether the matter should be retained under juvenile court jurisdiction or transferred back to adult court, applying Proposition 57.

First Holding:

Section 1170(d)(1) allows juvenile offenders to petition for recall and resentencing after 15 years of incarceration if they were sentenced to life without the possibility of parole (LWOP).

Authority:

PEN 1170(d)(1)

Second Holding:

A sentence of 72 years eight months to life, plus two life sentences is the functional equivalent of an LWOP sentence, and therefore, the defendant is eligible for resentencing under equal protection principles. As the two life sentences carry a minimum of seven years on each, the effective sentence in this matter is more than 86 years to life. Under that sentence, the defendant would not be released before he reached 102 years of age.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608

People v. Sorto (2024) 104 Cal.App.5th 435

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1056

People v. Mendez (2010) 188 Cal.App.4th 47, 50, 68 [sentence of 84 years to life was the equivalent of LWOP and constituted cruel and unusual punishment]

People v. Franklin (2016) 63 Cal.4th 261, 273 [under sec. 3046, where two indeterminate sentences run consecutively, a defendant must serve the full minimum term of each before becoming eligible for parole]

Third Holding:

A petition under section 1170(d)(1) must include a statement describing the defendant’s remorse, work toward rehabilitation, and a statement that one of four qualifying circumstances is true.

The four qualifying circumstances under section 1170(d)(2), are:

(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)(2)

Fourth Holding:

Recall and resentencing entitles eligible defendants to the benefits of retroactive ameliorative changes to the law, such as Proposition 57, which eliminated the prosecution’s right to file charges for eligible crimes against a minor directly in adult court without a fitness or transfer hearing.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 449

People v. Montes (2021) 70 Cal.App.5th 35, 48-49 [ordering superior court to transfer case to juvenile court to hold hearing under Prop. 57 where court had recalled LWOP sentence under sec. 1170(d)(1) for a defendant who had committed crimes when he was 17 years old]

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304, 309 [Proposition 57 constituted an ameliorative change to the criminal law, and therefore, it applies retroactively to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.]

People v. Padilla (2022) 13 Cal.5th 152, 161-162 [once a superior court recalls a sentence, it becomes nonfinal, and Proposition 57 applies retroactively]

People v. Ramirez (2021) 71 Cal.App.5th 971, 996 [because sentence was vacated under (what is now section 1172.6), defendant’s sentence became nonfinal for purposes of Proposition 57]

Fifth Holding:

In Graham, the United States Supreme Court held that the Eighth Amendment bars the imposition of an LWOP sentence for a juvenile offender who did not commit a homicide.

In Miller, the United States Supreme Court held that the Eighth Amendment prohibits mandatory LWOP sentences for juvenile homicide offenders. In sentencing a juvenile homicide offender the trial court must have the ability to impose a sentence less than LWOP after taking into account youth-related factors and whether the offender may be rehabilitated.

Tha California Supreme Court in Caballero applied the holding in Graham to a 110 years-to-life sentence, describing the sentence as a term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.

Authority:

Graham v. Florida (2010) 560 U.S. 48, 82

Miller v. Alabama, 567 U.S. 460, 465, 477

People v. Caballero (2012) 55 Cal.4th 262, 265, 267-268

Sixth Holding:

In Contreras, the California Supreme Court considered whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender’s natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.

The Contreras court concluded that sentences of 50 years or more to life for juvenile nonhomicide offenders were the functional equivalent of LWOP sentences for purposes of the Eighth Amendment because, as contemplated by Graham:

(1) confinement with no possibility of release until age 66 or age 74 seems unlikely to allow for reintegration into society;

(2) a juvenile offender who has no chance to leave prison for 50 years has little incentive to become a responsible individual;

(3) a 50-years-to-life sentence, though less harsh than LWOP, is still an especially harsh punishment for a juvenile, who will on average serve more years and a greater percentage of his life in prison than an adult offender;

(4) Graham’s observation that juveniles have limited ability to consider consequences when making decisions applies to a sentence of 50 years to life just as it does to a sentence of LWOP; and

(5) a judgment that a juvenile offender will be incorrigible for the next 50 years is no less questionable than a judgment that the juvenile offender will be incorrigible forever.

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 356, 364

Seventh Holding:

By leaving section 1170(d)(1) in place after enacting section 3051 (which sets up a scheme of parole eligibility consideration for juvenile and young offenders), the Legislature has signaled its preference for section 1170(d)(1) to persist rather than to be stricken, thereby ensuring section 1170(d)(1) provides relief in addition to the relief provided by section 3051.

Authority:

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1063

Elements of crime, Sentencing, Statutory interpretation

Case 001016

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to issue protective orders, because the defendant was not convicted of a qualifying offense, and the person for whose benefit order was issued was not a victim of the defendant’s crime.

First Holding:

Section 136.2(i)(1) provides authority for the imposition of postconviction protective orders where a defendant is convicted of a qualifying domestic violence offense.

Authority:

PEN 136.2(i)(1)

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

Domestic violence is abuse committed against, among other categories of victims, a person with whom the defendant had a dating relationship. Domestic violence is abuse perpetrated against (a) a spouse or former spouse[; (b) a cohabitant or former cohabitant; (c) a person with whom the respondent is having or has had a dating or engagement relationship; (d) a person with whom the respondent has had a child; (e) [a] child of a party; or (f) any other person related by consanguinity or affinity within the second degree.

“Abuse” is the intentional or reckless causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Section 136(3) defines “victim” as any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other statute or of the United States is being or has been perpetrated or attempted to be perpetrated.

Thus, a postconviction protective order under section 136.2(i)(1) is authorized if: (1) the defendant has been convicted of one (or more) of the statutorily enumerated crimes; and (2) the protected person qualifies as a victim of said crime(s).

Authority:

PEN 13700

FAM 6211

People v. Walts (2025) 112 Cal.App.5th 127, 139

People v. Lopez (2022) 75 Cal.App.5th 227, 237

Third Holding:

Courts do not have inherent authority to issue a criminal protective order absent a statute authorizing such an order.

Authority:

People v. Corrales (2020) 46 Cal.App.5th 283, 286-287

Fourth Holding:

The defendant was not convicted of a domestic violence or other offense that authorized the court to issue a protective order under section 136.2(i)(1). His conviction did not justify a protective order. Nor was the protected person a victim of his crime.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901 [where the defendant’s convictions are not domestic violence offenses, the court does not have statutory authority to impose a postconviction protective order, and it must be stricken]

People v. Pena (2025) 113 Cal.App.5th 640, 648 [the Legislature amended section 136.2(i)(1), in 2018 to specify that a victim is only a victim of the crime the defendant was convicted of committing]

People v. Walts (2025) 112 Cal.App.5th 127, 143 [if there is no reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted is being or has been perpetrated or attempted to be perpetrated against a particular person, that person is not a victim and may not seek, or be named as protected party by, a protective order under section 136.2(i)(1)]