Tag Archives: Trial court procedure

Duty of the court, Jury trial, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

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

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. the aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

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

People v. Lynch (2024) 16 Cal.5th 730, 742

Seventh Holding:

Such an error 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.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Sentencing, Sixth Amendment, Standard of review

Case: 000259

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a full resentencing hearing because the trial court unconstitutionally relied upon its own factfinding to impose the upper term on defendant’s conviction, and the error is not harmless beyond a reasonable doubt.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of’ an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding these provisions, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 748

Second Holding:

The trial court’s factfinding role as to a defendant’s prior convictions is specifically exempted from the Sixth Amendment jury trial right. However, 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, unless the defendant stipulates to its truth or waives a jury trial. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767

People v. Wiley (2025) 17 Cal.5th 1069, 1084-1085

Third Holding:

A court’s determination that a defendant has suffered prior criminal convictions on separate occasions, that the offenses were close in time, and that they were similar or intertwined in purpose and character runs afoul of constitutional proscriptions and must be resolved by a unanimous jury beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083 [Error for court to impose additional time based on its qualitative assessment of the offenses time, location, character, and purpose]

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

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086 [error not harmless where a rational jury could have concluded that the People failed to prove beyond a reasonable doubt that the defendant’s convictions were of increasing seriousness]

People v. Lynch (2024) 16 Cal.5th 730,742-743, 760-761, 768, 775 [We may find the omission harmless if we can conclude beyond a reasonable doubt ‘that the omitted fact was uncontested and supported by overwhelming evidence]

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

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

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

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

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

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

Fourth Holding:

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

Authority:

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

Fifth Holding:

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

Authority:

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

Sixth Holding:

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

Authority:

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

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

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

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

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

Due process

Case: 000154

Posted on by Gary McCurdy

Error and/or relief

After the preliminary hearing, the defendant failed to appear at a trial readiness conference. The trial court then allowed the prosecution to amend the information to add a fourth charge for willful failure to appear on felony charges. The case proceeded to trial and a jury found the defendant guilty of all four counts. The court’s ruling violated section 1009 and impinged upon his constitutional due process rights because the new charge was not supported by evidence from the preliminary hearing.

First Holding:

The court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, if there would be no prejudice to the defendant.

Authority:

People v. Graff (2009) 170 Cal.App.4th 345, 361

Second Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.

Authority:

People v. Rogers (2016) 245 Cal.App.4th 1353, 1360 [Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges.]

People v. Peyton (2009) 176 Cal.App.4th 642, 654 [In enacting section 1009, the Legislature determined that an accusatory pleading cannot be amended based on evidence not taken at the preliminary hearing]

People v. Winters (1990) 221 Cal.App.3d 997, 1007 [Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing.]

Third Holding:

The trial court’s accession to an amendment to the information, including the addition of counts, is reviewed for abuse of discretion. The trial court abused its discretion by permitting the amendment at issue. The preliminary hearing was held before the defendant committed the acts giving rise to the new charge of failure to appear. Therefore, the new charge was not based on evidence from that hearing. By allowing the prosecution to add the new charge, the court violated section 1009 and exceeded the bounds of its discretion

Authority:

People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581

Fourth Holding:

Case law has recognized that reversal is automatic where, as here, a defendant is convicted of an offense that was not based on evidence taken at a preliminary hearing. It is as a matter of law irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing. Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the Constitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he might consider guilty of crime.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 177

People v. Winters (1990) 221 Cal.App.3d 997, 1007

Fifth Holding:

A defendant’s conviction of a charge that was improperly added to a charging instrument is unquestionably prejudicial.

Authority:

People v. Dominguez (2008) 166 Cal.App.4th 858, 868

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Amelioration, Duty of the court, Sentencing

Case: 000125

Posted on by Gary McCurdy

Error and/or relief

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility. We therefore remand the matter for a new evidentiary hearing under section 1172.6(d). At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.

First Holding:

The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by SB 1437.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Second Holding:

The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt. A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 294-296

People v. Harden (2022) 81 Cal.App.5th 45, 51

Appellate Principles, Elements of crime, Jury trial, Sufficiency of and substantial evidence

Case: 000094

Posted on by Gary McCurdy

Error and/or relief

We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, and we reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace.   We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

First Holding:

Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

PEN 209(b)(1)–(2)

People v. Rayford (1994) 9 Cal.4th 1, 11–12

People v. Waqa (2023) 92 Cal.App.5th 565, 577

People v. Nguyen (2000) 22 Cal.4th 872, 886

Second Holding:

In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.

Authority:

People v. Williams (2017) 7 Cal.App.5th 644, 671

Third Holding:

Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 470

Fourth Holding:

If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.

Authority:

People v. Daniels (1969) 71 Cal.2d 1119, 1140

People v. Power (2008) 159 Cal.App.4th 126, 139

People v. Leavel (2012) 203 Cal.App.4th 823, 834

People v. Dominguez (2006) 39 Cal.4th 1141, 1152

People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]

Fifth Holding:

In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.

Authority:

People v. Hartland (2020) 54 Cal.App.5th 71, 77

Sixth Holding:

Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

PEN 1181, subd. 6

PEN 1260

People v. Bailey (2012) 54 Cal.4th 740, 748

People v. Ellis (2025) 108 Cal.App.5th 590, 601

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 671

Duty of the court, Sentencing

Case 000090

Posted on by Gary McCurdy

Error and/or relief

Remand for resentencing is required because (1) the trial court erred by failing to impose and then stay execution of the sentence on the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a); and (2) the trial court erred in failing to resentence the defendant to a single aggregate term of imprisonment for this case and another case for which he is serving a term of 24 years. We accept the People’s concession and remand the matter for resentencing.

First Holding:

At sentencing, the trial court did not orally pronounce a sentence for the infliction of great bodily injury enhancement. The matter is accordingly remanded for the trial court to impose and stay execution of the three-year sentence on the Penal Code section 12022.7(a) enhancement.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130

Second Holding:

When a defendant is convicted of multiple crimes in different cases and a consecutive term of imprisonment is imposed, the aggregate term for those cases is the sum of the principal term and subordinate term. In this instance, the trial court did not impose a single aggregated term. We will therefore remand for the trial court to do so.

Authority:

PEN 1170.1

Rules of Court, rule 4.452 [setting forth the procedure for imposing consecutive sentencing under PC 1170.1]

Third Holding:

During resentencing, the trial court shall award the appropriate custody credits for the aggregate term. [Gary note: the court cited no authority on the recalculation of credits, likely because the error is so obvious. But I have listed the statute and a leading case below.]

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37 [Having modified defendant’s sentence on remand, the court was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time]

Appellate Principles, Jurisdiction

Case 000085

Posted on by Gary McCurdy

Error and/or relief

This habeas petition seeks a belated appeal from a judgment rendered in the superior court. Petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine.

First Holding:

In response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief. Pursuant to the Attorney General’s response, this court may grant relief without further proceedings.

Authority:

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Second Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Third Holding:

[Gary note: The “Benoit” process is fairly routine, and the opinion does not discuss it. Except for roughly a 10-year period from 1961-1971 (when the Rules of Court set up a process for a petition for relief from default), there is no such thing in criminal law as a valid “late notice of appeal.” If the notice of appeal is not filed by the deadline, the court has no jurisdiction to proceed with the appeal.

[In Benoit, however, the Supreme Court recognized the difficulties of getting documents filed when the defendant is in custody. It confirmed or adopted the concept that if (a) the defendant is in custody the entire period of time for the filing of a notice of appeal, and (b) during the filing period the defendant takes steps to timely file the notice of appeal or to get someone to file it on his behalf (such as his or her attorney), the court will deem the notice of appeal constructively timely filed. Once it’s deemed to have been filed (albeit constructively) within the filing period, then it is not late, right?

[But both conditions are critical: the defendant must have been in custody the entire period AND the defendant must have taken reasonable efforts before the expiration of the deadline for filing.

[There is also the “prison delivery” rule, which treats the notice of appeal has having been filed timely if–prior to the expiration of the filing period–the inmate delivers the notice of appeal to the custodial official. I have listed the additional authorities below, though they were not part of the unpublished opinion. If you are faced with a similar problem, I suggest you read Benoit, Jordan, and Silverbrand, because they go into depth on the history and development of constructive filing and the prison delivery rule.]

Authority:

In re Benoit (1973) 10 Cal.3d 72 [incarcerated defendant timely requests the attorney to file the notice of appeal but the attorney does not]

In re Jordan (1992) 4 Cal.4th 116 [articulately the “prison delivery rule,” something that Benoit also discussed]

Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [extending the prison delivery rule to incarcerated defendants needing to appeal in civil cases]

Houston v. Lack (1988) 487 U.S. 266, 271 [holding that a self-represented prisoner’s appeal from the denial of a petition for writ of habeas corpus—a civil proceeding—was timely filed when delivered by the petitioner to prison authorities within the applicable 30-day period]

Rules of Court, rule 8.25(b)(5) [If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.]

Fourth Holding:

[GARY NOTE: In felony cases, the notice must be filed within 60 days.]

Authority:

Rules of Court, rule 8.308

Fifth Holding:

[GARY NOTE: In misdemeanor appeals, the notice must be filed within 30 days.]

Authority:

Rules of Court, rule 8.393

Sixth Holding:

[GARY NOTE: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. I’ve listed authority below.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Jurisdiction

Case 000084

Posted on by Gary McCurdy

Error and/or relief

The trial court did not have jurisdiction to amend earlier (erroneous) pronouncements on credit for time served, and the appellate court left in place the uncorrected credit for time served even though it gave him more conduct credit than he was entitled to. The appellate court treated the defendant’s appeal as a petition for writ of habeas corpus, because there was no right to appeal from an order that the trial court had no jurisdiction to make. The California Department of Corrections and Rehabilitation clerk’s letter saying there was an error in the award of credit for time served does not constitute a request by CDCR to resentence the defendant under section 1172.1. As the judgment was already final, the trial court had no jurisdiction to change the judgment, even though erroneous. The superior court was directed to amend the abstract of judgment to reflect that the prior sentence as reflected in the original abstract of judgment is reinstated including the awarding of the custody credits.

First Holding:

The court may treat an appeal as a petition for writ of habeas corpus.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783

Second Holding:

Unlike a letter from the California Department of Correction and Rehabilitation Secretary or their authorized representative expressly requesting recall and resentencing, a letter from a CDCR analyst recommending the court to review its file does not confer jurisdiction under section 1172.1 to vacate or modify a sentence notwithstanding the long-standing practice of treating such letters as a jurisdictional basis.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783

Third Holding:

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Once the case is final, the court can modify the sentence only if the court has jurisdiction under section 1172.1 or another authorizing statute, or by the filing of a petition for a writ of habeas corpus, or to correct a clerical error, or to modify an unauthorized sentence when the error is apparent from the record

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Singleton (2025) 113 Cal.App.5th 783, 788, 791

Fourth Holding:

The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. Courts must respect the limits on review imposed by the Legislature although the People may thereby suffer a wrong without a remedy. The fact that the act of the trial court was without authority and thus was an act in excess of the trial court’s jurisdiction in itself cannot enlarge the right of appeal by the People.

Authority:

PEN 1238

People v. Superior Court (Mitchell) (2024) 17 Cal.5th 228, 244

People v. Godfrey (1978) 81 Cal.App.3d 896, 901

People v. Williams (2005) 35 Cal.4th 817, 823

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

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