Monthly Archives: May 2026

Amelioration, Sentencing

Case 000004

Posted on by Gary McCurdy

Error and/or relief:

The defendant was sentenced to a Three Strikes term for prior serious felonies, both gang related felonies that would not comport with AB 333 today given that he admitted them under the elements of the crimes in effect in 2015 and 2019 prior to AB 333. They can’t be used as priors. The DA may choose to retry those allegations on remand.

First Holding:

Gang allegations on prior convictions cannot be sustained if not in compliance with AB 333.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The DA may choose to retry those allegations on remand.

Authority:

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

Discretion

Case 000003

Posted on by Gary McCurdy

Error and/or relief:

The defendant contends, and the People concede, the case must be remanded for the juvenile court to declare whether his grand theft offense was a misdemeanor or a felony, as required by section 702. We agree and remand with instructions.

Holding:

Juvenile court must declare whether the wobbler grand theft offense was a misdemeanor or a felony. Absent a court’s express declaration or other evidence the juvenile court was aware of, and exercised, its discretion to determine the felony or misdemeanor nature of a wobbler, the matter must be remanded. Section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor.

Authority:

Cal. Rules of Court, rule 5.790(a)(1)

In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1207

In re Kenneth H. (1983) 33 Cal.3d 616, 619

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re F.M. (2023) 14 Cal.5th 701, 712

Elements of crime, Vicarious liability

Case 000002

Posted on by Gary McCurdy

Error and/or relief:

Mere presence at the scene is not substantial evidence to support conspiracy.

Holding:

Mere presence at the scene of a crime is insufficient to establish participation in a conspiracy to commit that crime or aiding and abetting its commission.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 165 [Because the law will not recognize a rule of guilt by association, we insist on proof of a defendant’s knowledge of, and specific intent to further, [a conspiracy’s] unlawful ends]

People v. Francis (1969) 71 Cal.2d 66, 72

In re Michael T. (1978) 84 Cal.App.3d 907, 911 [Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting]

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000001

Posted on by Gary McCurdy

Error and/or relief:

On resentencing more than 10 years after conviction, the court must strike the unpaid balance of the $10,000 restitution fine, and it must recalculate the defendant’s credit for time served.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9(d) [Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.]

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37