Daily Archives: August 13, 2026

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Amelioration, Sentencing

Case: 000342

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court dismissed the now-invalid prior prison term enhancements, but decline to apply the Three Strikes Reform Act of 2012 to reduce the sentence further. The trial court concluded that section 1172.75 unconstitutionally amended section 170.126 (the petition-for-recall process for resentencing under the Three Strikes Reform Act). Because the Supreme Court has since determined that there is no constitutional conflict, the matter is reversed and remanded for the trial court for further proceedings consistent with this opinion.

Holding:

The Three Strikes Reform Act limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion with a goal of eliminating disparity of sentences and to promote uniformity of sentencing. Because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

PEN 1170.126

PEN 1172.75(d)(2)

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Effective assistance of counsel, Fines and fees, Standard of review

Case: 000341

Posted on by Gary McCurdy

Error and/or relief

The court ordered restitution in the amount of the manufacturer’s suggested retail price rather than the wholesale price of the goods taken from the retailer. The items had been returned to the retailer following the arrest. Rather than attempt to resell the items on its website advertising “like new” items for sale, the retailer simply destroyed them or donated the items. It was error to base the value of the loss at the manufacturer’s suggested retail price. We will vacate the restitution order and remand for a new restitution hearing.

First Holding:

The defendant did not object on the specific ground that the measure should have been the wholesale value, but that it should have been calculated using a diminished value. Nonetheless, even assuming defendant did not properly object to the trial court’s calculation of restitution, reviewing courts may address issues on appeal that present pure questions of law. Because the proper measure of restitution presents a pure question of law, and in light of defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court has authority to reach a forfeited claim]

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.

Authority:

In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132

Third Holding:

A restitution order is not intended to provide the victim with a windfall; rather, it is intended to compensate for the victim’s actual loss. Here, there is no evidence in the record of any profits the retailer lost due to defendant’s crimes. As the People concede, giving the retailer restitution based on the retail value of the merchandise rather than the wholesale cost would provide a windfall, because such award would exceed the cost to replace those items.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172, 1178-1180 [holding that hat because prosecutor presented no evidence that the retailer lost any profit due to the defendants’ theft, the court’s restitution order based on the retail price of the merchandise was improper]

Jury trial, Sentencing, Sixth Amendment

Case: 000340

Posted on by Gary McCurdy

Error and/or relief

The defendant was committed to the Department of State Hospitals nearly 50 years ago after being found not guilty by reason of insanity of robbery and assault. He challenges the order recommitting him for two years. The record fails to establish that he knowingly and voluntarily waived his rights to a jury trial and we therefore reverse.

First Holding:

Where a criminal defendant has been found to have been insane at the time the offense was committed, unless it appears to the trial court that the sanity of the defendant has been recovered fully, the court may order the defendant committed to the Department of State Hospitals (DSH) or any other appropriate facility for care and treatment. The commitment order must specify the maximum term of commitment, which is defined as the longest term of imprisonment which could have been imposed for the offense of which the person was convicted.

Authority:

PEN 1026(a)

People v. K.P. (2018) 30 Cal.App.5th 331, 338

Second Holding:

A person committed to DSH who completes the maximum term of commitment must be released unless, prior to the expiration of that term, the prosecution files a petition seeking to extend the commitment by two years and demonstrates that the person, by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others. Upon the filing of such a petition, the person is entitled to a jury trial, unless that right is waived by both the person and the prosecuting attorney.

To proceed with a bench trial instead of a jury trial in a recommitment proceeding, the trial court must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision. Here, neither party contends that the defendant lacked the capacity to knowingly and voluntarily waive his right to a jury, so the only question before us is whether he personally waived it.

Authority:

PEN 1026.5(b)

People v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 661–662

People v. Tran (2015) 61 Cal.4th 1160, 1163

Third Holding:

We uphold a jury-trial waiver only if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

The denial of a defendant’s right to a jury trial in a recommitment proceeding, including through the acceptance of an invalid jury trial waiver is not susceptible to ordinary harmless error analysis and automatically requires reversal.

We cannot be certain on this record that the court and the defendant were ever, in the court’s words, on the same page regarding his desire to waive his right to a jury trial. And because we cannot be confident that the defendant actually waived the right, we do not ascribe much significance to his final indication that he did not have any questions about waiving the right. Under the totality of the circumstances, the record does not affirmatively demonstrate that the defendant knowingly and voluntarily waived his right to a jury.

As a result, the order extending his commitment to DSH cannot stand.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 991

People v. Tran (2015) 61 Cal.4th 1160, 1169

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence’; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633