Tag Archives: Trial court procedure

Case 001134

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Case 001105

Error and/or relief

The court erred in staying the greater firearm enhancement under section 654 in order to impose a lesser firearm enhancement, rather than striking it under section 1385.

First Holding:

After considering the defendant’s youth as a mitigating factor, the court chose to sentence the defendant on the firearm enhancement under section 12022.5(a) (for 10 years) instead of under section 12022.53(c) (punishable by 20 years). The court purported to stay the 12022.53(c) enhancement under section 654.

Authority:

PEN 12022.5(a)

PEN 12022.53(c)

Second Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

Authority:

PEN 654

Third Holding:

In general, we review for abuse of discretion the trial court’s decision not to strike a sentence enhancement under section 1385(a). However, the trial court purported to stay the 20-year enhancement pursuant to section 654. Under Corpening, at step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo.

In Gonzales, the Supreme Court found that section 654 did not apply to whether the trial court properly stayed the punishment for the firearm enhancement at issue in that case. Although the trial court correctly stayed all of the prohibited firearm enhancements, it incorrectly issued those stays under section 654, which applies only to offenses punishable in different ways, not to prohibited enhancements committed in the commission of an unstayed offense.

Thus, the issue we resolve is one of statutory interpretation regarding the trial court’s interpretation of its authority to impose, stay, or strike firearm enhancements under sections 12022.53(c), 12022.5(a), and 1385.

Authority:

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

People v. Corpening (2016) 2 Cal.5th 307, 312

People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, fn. 5

Fourth Holding:

The court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. Under the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. King (2022) 77 Cal.App.5th 629, 635

Fifth Holding:

The court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by section 12022.53.

(Gary note: The appellate court cited several passages from section 12022.53 that reflect that a LESSER enhancement may be stayed (rather than stricken) when both the lesser and the greater are found true, as only one can be imposed. It reviewed the language the trial court used in sentencing the defendant to the lesser firearm enhancement, and concluded that the intention of the trial court could only be carried out by striking the greater enhancement under section 1385, which is permitted by section 12022.53(h).)

Authority:

PEN 12022.53(h)

PEN 1385

Case 001096

Error and/or relief

The defendant sought relief under section 1172.75 by filing a petition for writ of habeas corpus. The trial court reviewed the petition, struck the two now-invalid prior prison term enhancements and denied the request for resentencing, concluding that the previously entered judgment was final. It did not appoint counsel, there was no full resentencing, and the defendant was not present for the decision.

The court erred. The judgment is reversed with the direction to the trial court to appoint counsel for the defendant and to conduct a full resentencing hearing under Penal Code section 1172.75.

First Holding:

Before January 1, 2020, section 667.5(b) required courts to impose a one-year sentence enhancement for each prior prison or county jail term the defendant served if the defendant had not remained free of custody for the preceding five years. Effective January 1, 2020, SB 136 amended section 667.5(b) by limiting the enhancement to prior prison terms for sexually violent offenses only.

In 2021, the Legislature enacted Senate Bill No. 483, which made SB 136’s changes to the law retroactive, and added what is now section 1172.75. Section 1172.75(a), provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Section 1172.75(c) sets forth procedures for the trial court to recall sentences that include the now invalid enhancements and to resentence the defendants.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

Second Holding:

When a defendant is being resentenced under section 1172.75, a resentencing court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

At resentencing, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

The court shall appoint counsel to represent a defendant at resentencing proceedings.

Authority:

PEN 1172.75(d)(2), (d)(3), (d)(5)

Third Holding:

The Sixth and Fourteenth Amendments of the federal Constitution guarantee a criminal defendant the right to be at all critical stages of the proceeding, including sentencing and resentencing.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 673

Fourth Holding:

Other than to strike the one-year prison priors, the trial court declined to conduct a full resentencing, believing it could not do so because the judgment was final. However, section 1172.75, including subdivision (d)(2), applies retroactively to final judgments like the defendant’s.

Because the statute mandates striking the now invalid enhancements, the statute by its express terms—backed by supportive case law—also requires that defendant receive a full resentencing.

Thus, the trial court had jurisdiction and the duty to reconsider the entirety of the defendant’s sentence, not just the one-year prison priors.

Authority:

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Case 001095

Error and/or relief

The court erred in concluding at the prima facie stage that the defendant was ineligible for relief under section 1172.6 as an aider and abettor. The matter is remanded to the superior court with directions to issue an order to show cause and hold an evidentiary hearing on the petition.

First Holding:

In 2018, the Legislature enacted SB 1437, which amended provisions of the Penal Code pertaining to the felony-murder rule and the natural and probable consequences doctrine. Regarding the felony-murder rule, SB 1437 added section 189(e), which states that a participant in the perpetration or attempted perpetration of qualifying felonies in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(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.

(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).

As to the natural and probable consequences doctrine, section 188(a)(3) now provides that, except for felony-murder liability 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.

SB 1437 created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, by filing a petition for resentencing under what is now section 1172.6.

Pursuant to section 1172.6, a person previously convicted of murder or attempted murder may file a resentencing petition when all of the following conditions apply:

(1) the charging document filed against the petitioner permitted the prosecution to proceed under a theory of felony murder, or another theory of imputed malice;

(2) the petitioner was convicted of murder, attempted murder or manslaughter; and

(3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 188

PEN 189

PEN 1172.6

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

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

Second Holding:

At the prima facie stage of a resentencing matter, the court evaluates both the petition and the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If, on the other hand, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause. Denial of a resentencing petition at the prima facie stage is reviewed de novo.

Authority:

PEN 1172.6

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

People v. Williams (2022) 86 Cal.App.5th 1244, 1251

People v. Lewis (2021) 11 Cal.5th 952, 97

Third Holding:

In this case, the dispositive issue under section 189 is whether the jury’s special circumstance findings (in the early 1990s, when the case was tried) conclusively establish the defendant’s liability for felony murder as a nonkiller aider and abettor. That is, we must determine whether the jury necessarily found that if the defendant was not the actual killer, he at least–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.

A finding of intent to kill made pursuant to a special-circumstance murder allegation is relevant and binding on the petitioner in a resentencing proceeding.

Importantly though, a resentencing petition puts at issue whether all elements of the murder offense are established by a valid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 462, 453-460 [addressing a gang-murder special circumstance]

People v. Strong (2022) 13 Cal.5th 698, 710

People v. Lopez (2026) 19 Cal.5th 639, 659

Fourth Holding:

The true findings as to the special circumstance allegations do not establish that the jury necessarily found his conduct met the actus reus required for aiding and abetting murder under section 189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only intended to kill, but also assisted the actual killer in the commission of murder in the first degree. Section 189(e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony.

While the special circumstances findings established that the defendant had the intent to kill and aided a cohort, the jury was not required to find that the defendant aided the actual killer in the act of killing.

Further, the instructions on the special circumstances referred to murder in the first degree, which may have led jurors to consider the instructions on first degree murder. Those instructions on murder contained no-longer-valid theories, which may have led the jury to believe the defendant aided or abetted in the commission of first degree murder without finding that he assisted in the lethal act itself.

True findings as to special circumstance allegations did not necessarily establish defendant was a direct aider and abettor even though jury received general instruction regarding aider and abettor liability.

Authority:

PEN 189(e)(2)

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

In re Lopez (2023) 14 Cal.5th 562, 587–588

ADD AUTHORITIES HERE

Case 001094

Error and/or relief

The court erred in denying the defendant’s oral motion for relief under the Racial Justice Act (RJA).

First Holding:

It is a violation of the RJA for the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or a juror to exhibit bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin or, during the defendant’s trial, in court and during the proceedings, to use racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibit bias or animus toward the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

A defendant may file a motion alleging a violation of subdivision (a). If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing, at which the defendant bears the burden of proving an RJA violation by a preponderance of the evidence.

Subject to exceptions inapplicable in this case, if the court finds an RJA violation by a preponderance of evidence, the court shall impose an enumerated remedy specific to the violation. If judgment has yet to be entered, one remedy is to reduce one or more charges. After judgment has been entered, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a).

Authority:

PEN 745

Second Holding:

The defendant argues that the trial court erred to the extent it denied his RJA motion because it was brought orally rather than by written, noticed motion. Addressing this issue of statutory interpretation de novo, we conclude the RJA does not preclude the possibility of making an oral motion. Accordingly, the court erred to the extent it denied the motion for being brought orally.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 41

Third Holding:

In interpreting a statute, our goal is to ascertain the Legislature’s intent to effectuate the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. If the language is unambiguous, the plain meaning controls. The words, however, must be construed in context, so we look to the entire section as well as the statutory framework as a whole in deciding what a word or provision means, and we attempt to harmonize terms where possible. We may reject a literal construction that is contrary to the legislative intent apparent in the statute or that would lead to absurd results.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Murphy (2001) 25 Cal.4th 136, 142

Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519

Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230

Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27

Fourth Holding:

The statutory language here is ambiguous. Section 745 does not say a defendant “must file” a motion; instead, it is permissive. But nor does the statute say that a defendant “may make” an oral motion. We therefore look to legislative findings made in support of the RJA to discern the Legislature’s intent.

When statutory language is ambiguous, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and contemporaneous administrative construction. Because uncodified findings of legislative intent are voted upon by the entire legislative body, enrolled and signed by the Governor, they may be entitled to somewhat greater weight than traditional legislative history materials.

(Gary note: Regarding the reference to “uncodified findings” in the last sentence above, Assembly Bill 2542 (2019-2020 legislative session), which enacted the Racial Justice Act, contains a few sections in the bill that were not codified, meaning they do not appear in any of California’s codes, such as the Penal Code.

(Depending on the wording, the uncodified language may or may not have the force of law. For example, section 7 of the bill directs that certain portions of the bill are effective only if a different specified bill is enacted and becomes effective by a specified date. Section 7 thus carries the force of law.

(But section 2 of the bill contains 10 findings made by the Legislature that led to its passage of the RJA. In roughly 1,329 words. Some of the findings relate the existence and effects of racism–intentional or otherwise–and others state something like “It is the intent of the Legislature that ….” Those findings and statements of intent probably do not technically carry the force of law, but may be considered by the courts in interpreting the statutes that were enacted.

(The trial court then discussed the various aspects of the findings that led it to conclude that “Given the expansiveness of the Legislature’s purpose in enacting the RJA, it is appropriate to construe the legislation liberally in favor of affording defendants an opportunity to raise potential RJA violations through an oral motion.” It cautioned, however, that it may not be the best practice to raise the motion orally, as it may create confusion over what, exactly, is being asserted.)

Authority:

People v. Woodhead (1987) 43 Cal.3d 1002, 1008

Young v. Superior Court (2022) 79 Cal.App.5th 138, 157

Fifth Holding:

In the course of the hearing, counsel appeared to concur that the proper standard was proof by preponderance of the evidence, rather than the much lower standard at the prima facie stage. Though it is not clear what standard the court applied, it erred in excluding hearsay evidence. Hearsay is not per se excludable under the RJA. The court should have considered whether the proffered hearsay “trustworthy and reliable” before excluding it.

By concluding the evidence before it was double hearsay, the court failed to consider the totality of the proffered facts in assessing whether the defendant made a prima facie showing. On this record, we conclude the defendant made such a sufficient showing at the prima facie stage. We thus reverse and remand with instructions to hold an evidentiary hearing under the RJA.

Authority:

PEN 745(c)(1)

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Sixth Holding:

The people argue that application of the higher standard was invited error, as counsel concurred. The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at defense counsel’s behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.

But for the doctrine to apply, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In cases involving an action affirmatively taken by defense counsel, courts have found a clearly implied tactical purpose to be sufficient to invoke the doctrine.

It is not sufficiently clear on this record that counsel had a tactical purpose. It supports the conclusion that counsel simply misunderstood certain details of the RJA when he brought the oral motion. For example, he characterized the motion as a post-judgment motion. But it was prejudgment, though it was presented after the jury verdict. In a criminal case, judgment is rendered when the trial court orally pronounces sentence. Here, the sentencing had not yet happened when the RJA motion was made, so no judgment had been entered.

In light of counsel’s apparent misunderstandings, we conclude that the invited error doctrine is inapplicable. In any event, its application is discretionary, not automatic.

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025) para. 8:248.13

Seventh Holding:

We review de novo a determination that an RJA movant has failed to make a prima facie showing. A defendant makes a prima facie showing if the defendant produces facts that, if true, establish that there is a substantial likelihood that an RJA violation] occurred.

A substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not. The court should should not make credibility determinations at the prima facie stage. It should accept the truth of the defendant’s allegations unless they are conclusory, unsupported by the evidence presented in support of the claim, or demonstrably contradicted by the court’s own records.

On this record—with these principles in mind and considering the totality of the proffered facts—we conclude that there is more than a mere possibility that an RJA violation occurred. The defendant has therefore made a prima facie showing of one or more RJA violations and is entitled to an evidentiary hearing.

Authority:

PEN 745(h)(2)

PEN 745(c)

People v. Howard (2024) 104 Cal.App.5th 625, 650

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130