Daily Archives: June 29, 2026

Case: 000114

Error and/or relief

We conclude that the abstract of judgment must be modified to accurately reflect the defendant’s presentence custody credits and his sentence on the attempted murder count. We accordingly modify the judgment to correct these sentencing errors and affirm the judgment as modified.

First Holding:

While a defendant sentenced to life in prison with the possibility of parole becomes eligible for parole after serving seven years, the correct sentence to be imposed remains life with the possibility of parole, plus any determinate enhancements. The abstract of judgment, which currently describes the sentence on the attempted murder with premeditation and deliberation as “seven years to life,” must be corrected accordingly. [Gary note: The court did not provide its authority for ordering that the abstract of judgment be corrected, but there are many cases it could have cited. I have listed some below, which were not in the opinion but support the correction.]

Authority:

PEN 3046(a)(1)

PEN 664(a)

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 [shorthand pronouncement of seven years to life where statutory term is life with the possibility of parole is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

The trial court miscalculated the credit for time served. The defendant is entitled to three additional days, and the abstract of judgment must be modified accordingly. [GARY NOTE: The court did not provide any authority for this correction, most likely because it is so obvious that it must be corrected. Authorities supporting the court’s order (but not cited by the court) could include those I set forth below, among others.]

Authority:

PEN 2900.5

People v. Smith (1989) 211 Cal.App.3d 523, 527

Case: 000113

Error and/or relief

The condition of probation that prohibits the defendant from “frequenting] any area where gang members are known by him/her to congregate, or areas known by him/her for gang related activity” is overbroad and can be more narrowly tailored by allowing the defendant’s probation officer to specify the areas involving gang-related activity. Accordingly, we modify the condition of probation to read that the defendant “shall not associate with any person known to him/her as a gang member and shall not frequent any areas specified by his probation officer as involving gang-related activity, subject to reasonable exceptions to accommodate family, work, and educational needs as determined by his probation officer.”

First Holding:

The court’s discretion of the court to impose conditions of probation is not boundless. The authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise. A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Conversely, a condition of probation that requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.

Authority:

PEN 1203.1

People v. Cervantes (1984) 154 Cal.App.3d 353, 356

People v. Lent (1975) 15 Cal.3d 481, 486

Second Holding:

The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

As to the third prong of Lent, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. But the third prong “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

People v. Lopez (1998) 66 Cal.App.4th 615, 626 [relying on information in probation report for gang-related condition]

Fourth Holding:

Probation is a privilege and not a right, and adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 384

Fifth Holding:

A probation condition that infringes a constitutional right is permissible if necessary to serve the dual purpose of rehabilitation and public safety. However, a probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

Authority:

People v. Burden (1988) 205 Cal.App.3d 1277, 1281

People v. Salvador (2022) 83 Cal.App.5th 57, 62-63

In re Sheena K. (2007) 40 Cal.4th 875, 890

In re E.O. (2010) 188 Cal.App.4th 1149, 1153

Sixth Holding:

In Victor L., the defendant challenged for overbreadth and vagueness a condition of probation ordering him to stay away from areas known by him for gang-related activity. The court distinguished between probation restrictions encompassing areas known for gang related crimes (which other courts had upheld against constitutional challenges) from restrictions involving gang-related activity. Noting the word ‘activity’ is one of surpassing breadth that could banish the defendant from the area in which he lived, worked, or went to school, Victor L. determined that an individualized list of stay away areas, together with any exceptions necessary to reasonably accommodate the defendant’s legitimate work and educational needs was required. Victor L. reasoned a probation officer, rather than the trial court, was in a better position to identify the forbidden areas for each defendant, using either geographic or activity-based limits. Victor L. modified the condition to prohibit the defendant’s presence in areas known by him for gang-related activity (or specified by his probation officer as involving gang-related activity). Other courts have imposed similar gang-area restrictions.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 913-918, 931-932

People v. Barajas (2011) 198 Cal.App.4th 748, 754-760 [affirming condition that stated that the defendant was not to visit or remain in any specific location which he knows to be or which the probation officer informs him to be an area of criminal street gang-related activity]

In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [It would be altogether preferable to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work]

Case: 000112

Error and/or relief

The trial court erred in finding the defendant was ineligible for a full resentencing hearing under section 1172.75, because his judgment includes a now-invalid prison prior and thus the court’s order must be reversed. [At the original sentencing, the court had imposed and stayed the one-year prior prison term.]

Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Case: 000111

Error and/or relief

We affirm the judgment of conviction as to defendant A. We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment. The People concede both abstracts of judgment must be amended; we agree and remand with directions. The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery. Both defendants were charged with second degree robbery, and the juries were instructed only on that theory. There are several other errors in the abstracts of judgment that must be corrected.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Navarro (2021) 12 Cal.5th 285, 302

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault. A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission. However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense.

Authority:

People v. McCoy (2001) 25 Cal.4th 1111, 1117

People v. Hill (1998) 17 Cal.4th 800, 851

People v. Campbell (1994) 25 Cal.App.4th 402, 409

Third Holding:

Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: (1) The person was the actual killer. (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189(e)

Fourth Holding:

There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 615

Fifth Holding:

Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)). We need not decide whether, under the circumstances of this case, defendant was a major participant because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life. The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a major participant in the underlying felony.

Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have reckless indifference to human life. A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life. Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions. Reckless indifference encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of the defendant’s actions. Reckless indifference to human life has both a subjective and an objective element.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615-617

People v. Banks (2015) 61 Cal.4th 788, 794, 807-810

People v. Strong (2022) 13 Cal.5th 698, 706

In re Scoggins (2020) 9 Cal.5th 667, 677

Sixth Holding:

In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim. The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim. This factor weighs against a finding of reckless indifference. Defendant B had no meaningful opportunity to aid the victim before the shooting.

However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed. It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability. While it is true a defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a grave risk of death, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 894-895

Tison v. Arizona (1987) 481 U.S. 137, 157

Seventh Holding:

The abstracts of judgment contain several errors that must be corrected. The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery. The verdict forms do not specify the degree of the robberies. But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree. Therefore, we conclude that the robberies in the three counts are in the second degree.

The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment. As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts. However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].” Given this discrepancy, the oral pronouncement of judgment controls.

Authority:

PEN 1157

People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.

Case: 000110

Error and/or relief

[Gary note: This appeal was dismissed as moot, and there was no “victory,” even in my very broad definition. But it contains a decent discussion on mootness that might provide some insight into the appellate process.] The defendant complains of terms set on his mandatory supervision. But he has completed his term of mandatory supervision. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide the defendant with any relief, his appeal challenging the term of mandatory supervision is moot. We will therefore dismiss it.

First Holding:

A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. Consequently, when, pending an appeal from the judgment of a lower court, and without any fault of the opposing party, an event occurs which renders it impossible for the court, if it should decide the case in favor of the defendant, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal as moot.

Authority:

People v. Rish (2008) 163 Cal.App.4th 1370, 1380

People v. DeLeon (2017) 3 Cal.5th 640, 645

Second Holding:

Where a defendant has completed a sentence, their claims of error as to that sentence are moot because a reviewing court’s resolution of the issues could offer no relief regarding the time he spent on mandatory supervision or in custody. A defendant must demonstrate sufficiently concrete consequences to avoid a finding of mootness. Speculative consequences do not support the conclusion that a legally sufficient controversy exists. Complaining of stigma alone is insufficient to sustain an appeal. The stigma must be paired with some effect on the legal status that is capable of being redressed by a favorable court decision. The moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.

Authority:

People v. DeLeon (2017) 3 Cal.5th 640, 645, 646, fn. 2

In re D.P. (2023) 14 Cal.5th 266, 277

People v. Armas (2024) 107 Cal.App.5th 350, 357

Third Holding:

The defendant urges us to consider the merits of his appeal despite its mootness, because the issue raised is likely to recur, might otherwise evade appellate review given the “relatively fleeting nature of mandatory supervision,” and is of continuing public interest, within the meaning of Morales. We decline to do so. Many published California cases have shown varying terms of supervision, many of which cannot be characterized as fleeting. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide appellant with any relief, his appeal challenging the term of mandatory supervision is moot.

Authority:

People v. Morales (2016) 63 Cal.4th 399, 409

People v. Nixon (2025) 111 Cal.App.5th 947, 950 [five years of mandatory supervision]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 [three years of mandatory supervision]

People v. Martinez (2020) 54 Cal.App.5th 885, 890 [two years eight months of mandatory supervision]

People v. Conatser (2020) 53 Cal.App.5th 1223, 1225 [six years of mandatory supervision]

People v. Mendoza (2020) 44 Cal.App.5th 1044, 1050 [four years of mandatory supervision]

People v. Samuels (2018) 21 Cal.App.5th 962, 965 [five years of mandatory supervision]

People v. Millan (2018) 20 Cal.App.5th 450, 452 [five years of mandatory supervision]

People v. Bollaert (2016) 248 Cal.App.4th 699, 704 [10 years of mandatory supervision]