Tag Archives: Trial court procedure

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001004

Posted on by Gary McCurdy

Error and/or relief

On appeal following remand from the defendant’s first appeal, the trial court failed to impose sentence on several counts whose punishment it stayed under section 654. It failed to impose a fine on a fifth count, and it improperly reimposed several other fines.

First Holding:

The court’s failure to pronounce sentence on some of the counts constitutes an unauthorized sentence. When a trial court determines that section 654 applies, the court must impose sentence on every count but stay execution as necessary to implement section 654. This procedure also applies when one of the sentences pertains to a misdemeanor conviction.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

People v. Mani (2022) 74 Cal.App.5th 343, 380

Second Holding:

The defendant’s conviction under Vehicle Code section 23152(a) (driving under the influence) requires a fine, but the court failed to impose a fine.

Authority:

VEH 23536(a)

VEH 23600

People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as one that cannot lawfully be imposed under any circumstances in a particular case]

Third Holding:

Having concluded that the trial court’s failure to impose sentences and to impose a fine resulted in an unauthorized sentence, we also conclude that remand is required to correct the errors. In other cases, we have exercised our authority under section 1260 to modify judgments in sentencing matters where remand would be futile or unnecessary because the record clearly indicated how the trial court would exercise its sentencing discretion.

Here, however, the trial court did not impose sentences on counts two, four, seven, and nine or the firearm enhancement associated with count two, or impose a fine on count six, either at the original sentencing or at the section 1172.75 resentencing. Given the range of sentencing options for the omitted counts and enhancement and the permissible range of the fine on count six, the record does not clearly indicate what sentences or fine the court would have imposed. Accordingly, remand is required.

Authority:

People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

We disagree with the People that on remand, the defendant is entitled to a full resentencing. Section 1260 grants appellate courts the authority to order limited remands for further proceedings that may be appropriate under the circumstances. In resentencing the defendant in 2025, the trial court considered the relevant factors in formulating a sentence it deemed appropriate based on his culpability, criminal history, and his risk of future dangerousness.

The two limited tasks on remand (imposing and staying sentences on the omitted counts that the court had already indicated it intended to stay and imposing a fine on count six) will not alter the overall sentencing scheme the trial court deemed appropriate such that resentencing on all nine counts would be required.

For these reasons, we order a limited remand.

Authority:

PEN 1260

People v. Wilson (2024) 16 Cal.5th 874, 948-949

People v. Stevens (1988) 205 Cal.App.3d 1452, 1456 [Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format]

Fifth Holding:

The court erred in reimposing and staying several fees, despite making an implied finding that the defendant did not have an ability to pay. Equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Neither of the applicable statutes nor Kopp allows a trial court to impose then stay the court operations fee or the court facilities fee after it finds a defendant indigent. Once it found the defendant lacked the ability to pay, the court’s option was to not impose the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Sixth Holding:

The statutes authorizing certain other fees that were previously imposed have since been repealed and are now unenforceable and uncollectible. Any portion of a judgment imposing those fees must be vacated.

Authority:

GOV 6111(a)

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000999

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying the defendant’s request for mental health diversion because its finding that he is ineligible for diversion is not supported by substantial evidence.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals entry and reentry into the criminal justice system while protecting public safety.

Under section 1001.36(b), the court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. Eligibility no longer turned on findings to the court’s satisfaction.

The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise. And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before us is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the dispute] fact was true.

More specifically, in this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The balance of the decision discusses the conclusions drawn by the trial court that it relied on to conclude that the mental disorder did not contribute to the offense. The appellate court concluded that the inferences the trial court drew were not substantial evidence to overcome by clear and convincing the presumption that the mental disorder was a contributing factor, and reversed the denial. It remanded for the court to reconsider the defendant’s application for mental health diversion consistent with the appellate court’s opinion.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

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

Case 000993

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.

Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.

The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.

First Holding:

A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.

Authority:

PEN 1170(b)

People v. Lynch (2024) 16 Cal.5th 730, 757

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

Second Holding:

Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.

Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.

Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Third Holding:

Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.

This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination.  A defendant must also be advised of the penal consequences of the admission.

If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.

Authority:

People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127

People v. Mitchell (2026) 19 Cal.5th 729, 745–746

Boykin v. Alabama (1969) 395 U.S. 238

In re Tahl (1969) 1 Cal.3d 122

People v. Cross (2015) 61 Cal.4th 164, 170

People v. Mosby (2004) 33 Cal.4th 353, 361–365

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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.

Authority:

PEN 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Almendarez-Torrez v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466

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

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

Eighth Holding:

The Sixth Amendment is violated when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Amelioration, Plea bargains, Sentencing, Sixth Amendment

Case 000963

Posted on by Gary McCurdy

Error and/or relief

Having been found in violation of probation and the previously imposed but suspended prison term having been ordered executed, the defendant is entitled to challenge the upper term that he agreed to in 2021 before section 1170 was amended to provide that the upper term may be imposed only on aggravating factor stipulated to or found true beyond a reasonable doubt by a jury.

If the prosecution or court are not satisfied with the resulting modification, the plea shall be set aside and the parties shall be restored to their status prior to the plea agreement.

First Holding:

Effective 1/1/2022, SB 567 amended section 1170 to make the middle term the presumptive sentence and permit a trial court to impose the upper 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.

Authority:

PEN 1170

Second Holding:

In Mitchell, the California Supreme Court resolved the effect of section 1170(b) on negotiated dispositions, holding that SB 567’s amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases that were not final on appeal.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 737–738

Third Holding:

We therefore reverse the judgment because the facts relied on to justify the upper term were not stipulated to or proven beyond a reasonable doubt at a jury or court trial. The defendantl may reaffirm the bargain and waive the requirements now applicable under section 1170(b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing its burden of proof. What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence to the middle term.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 749

Gary note:

(The opinion made no mention of Penal Code section 1171, effective 1/1/2025, even though the Mitchell opinion made an observation in a footnote. There are several unpublished cases that have held that section 1171 will NOT result in a rescission of the plea agreement, in light of the language in 1171(c)(3) that says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (You can search for the unpublished opinions I have posted, where I may have added additional commentary.  Maybe try the search term “1171” or “PEN 1171” with or without quotation marks.)

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

One of the defendant’s counts must be vacated because it was time-barred.

First Holding:

There is a three-year statute of limitations for reckless indifference to an animal’s suffering.

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

There is a relation-back provision, meaning a prosecutor could file charges late if they involved the same conduct alleged in charges that were timely filed. (Former sec. 803, subd. (b) [eff. Jan. 2018].) The relation-back provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct.

In other words, the relation-back provision does not function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant during the same time frame as an offense charged in a pending prosecution.

Authority:

People v. Terry (2005) 127 Cal.App.4th 750, 769

Third Holding:

The defendant requests that, on remand, he should be granted leave to file a motion for new trial on the grounds that the jury may have been influenced by the evidence presented on the time-barred-now-vacated count.

A motion for new trial must be made and determined before the making of an order granting probation. The defendant has been granted probation. The trial court lack jurisidiction to rule on a motion for new trial.

Authority:

People v. Martin (1963) 60 Cal.2d 615, 618

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

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

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying 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.

Authority:

PEN 1172.75(d)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Appellate Principles, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000923

Posted on by Gary McCurdy

Error and/or relief

The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations.

The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.

The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).

Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.

First Holding:

In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.

There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.

(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).

(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)

Authority:

PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]

PEN 190.2(c) and (d)

People v. Curiel (2023) 15 Cal.5th 433, 449

People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Third Holding:

We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.

No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.

Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.

Accordingly, we decline to find forfeiture, and we will review this claim on its merits.

Authority:

PEN 1259

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].

Fourth Holding:

The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

In re Ferrell (2023) 14 Cal.5th 593, 602

People v. Aledamat (2019) 8 Cal.5th 1, 13

Fifth Holding:

When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.

To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.

We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.

We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 443-444

In re Lopez (2023) 14 Cal.5th 562, 568

In re Ferrell (2023) 14 Cal.5th 593, 602

Sixth Holding:

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.

Authority:

People v. Sanchez (2001) 26 Cal.4th 834, 852

Seventh Holding:

Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

People v. Cooper (2023) 14 Cal.5th 735, 746

Eighth Holding:

Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.

The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.

Authority:

PEN 12022.53(j)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]

Ninth Holding:

In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303

Tenth Holding:

Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.

AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.

Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.

These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.

Authority:

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Eleventh Holding:

A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.

The matter must be remanded to the juvenile court to conduct a transfer hearing.

Authority:

People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620

People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]

Johnson v. Zerbst (1938) 304 U.S. 458, 464

People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479

People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]

People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].

 

Amelioration, Plea bargains, Sentencing

Case 000919

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to consideration for resentencing under section 1172.75 even though she stipulated to the upper term in her original plea agreement. The matter is remanded.

Under Mitchell, the defendant is free to raise the issue of whether section 1171 precludes the setting aside of her plea if the court modifies the sentence to something less than the stipulated sentence.

First Holding:

The defendant is entitled to the retroactive benefit of section 1170(b)’s provisions notwithstanding her agreement to a specified term as part of a plea bargain.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Second Holding:

The proper remedy is to remand this case and permit the defendant to pursue relief under the new benefit that SB 567 confers. On remand, the defendant may either waive or invoke the requirements of section 1170(b). If she reaffirms her acceptance of the plea bargain and enters a new waiver of section 1170(b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties.

If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence. If the court also accepts the modification it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw her assent to the bargain. In that case the court shall set aside the plea, the matter shall proceed as to the defendant as if no plea had been entered, and the case shall be set for trial.

In keeping with footnote 9 of Mitchell, however, on our remand to the trial court, the defendant may present her argument that section 1171, enacted effective 1/1/25, provides that any modification of her sentence under ameliorative provisions shall not result in setting aside her plea.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729

Sentencing, Sixth Amendment, Standard of review

Case 000890

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating factors that were not presented to a jury for proof beyond a reasonable doubt.

First Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify 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 a jury or court trial.

Rule 4.421 of the California Rules of Court provides a list of aggravating circumstances that must be stipulated to by the defendant or determined beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Notwithstanding section 1170(b)(1) and (2), 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:

PEN 1170(b)(2) and (3)

Rules of Court, rule 4.421

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

People v. Lynch (2024) 16 Cal.5th 730, 748, 759-760

Second Holding:

These provisions are subject to constitutional limitations under the Sixth Amendment. Specifically, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

For example, the Wiley court held that the defendant was 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.

Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085-1086

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

Third Holding:

A defendant may waive his right to a jury trial on the aggravating factors, provided he does so personally and expressly. To be valid, the record must show the defendant’s waivers of the right to a jury are knowing, intelligent, and voluntary. In making such a determination, we examine the totality of the circumstances unique to each case.

In this case, we determine that the colloquy between the court and the defendant did not adequately inform him of what the aggravating factors were. Without a clear explanation that defendant was entitled to have a jury decide the truth of the specific aggravating factors that the court intended to use against him, or even notice of those aggravating factors, it cannot be said that he knowingly or intelligently waived his right to have a jury decide the truth of those specific aggravating factors, of which he was never made aware.

Authority:

People v. Collins (2001) 26 Cal.4th 297, 308

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. Daniels (2017) 3 Cal.5th 961, 990, 991 [a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent]

Fourth Holding:

Because defendant was deprived of a jury trial on the aggravating facts used to justify imposition of the upper term sentence, and there was no knowing or intelligent waiver, we must determine whether he was prejudiced by that error under the Chapman standard.

(Gary note: the court then reviewed the specific facts of the defendant’s criminal record and performance on probation or parole, details of which are case specific and would not add to this summary of an unpublished opinion that cannot be cited.)

Since we cannot conclude the lack of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify the upper term sentence, defendant is entitled to a reversal and remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

People v. Lynch (2024) 16 Cal.5th 730, 775