The defendant is entitled to one more day credit for time served.
A defendant is entitled to credit for all days in presentence custody including the day of arrest and the day of sentencing.
People v. Fuentes (2022) 78 Cal.App.5th 670, 681
In this appeal from the defendant’s resentencing under Penal Code section 1172.75, we must remand the case for the court to consider the continuing validity of his gang enhancements after AB 333.
The defendant was entitled to have the court consider the changes made to section 186.22 by AB 333, which apply retroactively to his case, because his conviction was not yet final. The ameliorative changes to the gang statute made by AB 333 apply to cases in which sentencing issues remain pending before the superior court following remand. The superior court here did not have the opportunity to consider whether the defendant met the revised requirements for determining whether his gang constituted a criminal street gang, whether it engaged in ‘a pattern of criminal gang activity’, or whether the defendant’s actions were for the common benefit to members of a gang. Accordingly, we remand the matter to allow for that consideration.
People v. Lopez (2025) 17 Cal.5th 388, 392
For a crime committed when he was under age 18 and for which he was tried as an adult and sentenced to 46 years to life, the defendant filed a petition under section 1170(d) to recall his sentence and be resentenced, claiming he was sentenced to the functional equivalent of life without the possibility of parole (LWOP). The trial court denied the petition, concluding that the sentence was not the functional equivalent of LWOP. Reversed.
The issue regarding what sentences constitute the functional equivalent of LWOP is one the Supreme Court is set to resolve in Munoz.
People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828
Defendant maintained he was eligible for resentencing even though he was not given an LWOP sentence because he was serving a sentence that was the functional equivalent of LWOP and treating him as if he were ineligible for resentencing would accordingly violate equal protection principles. We agree with Heard and other precedent that holds defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, must be eligible for section 1170(d) relief pursuant to equal protection guarantees—and the availability of a youthful offender parole hearing does not undercut this conclusion.
People v. Heard (2022) 83 Cal.App.5th 608, 628-629
People v. Contreras (2018) 4 Cal.5th 349
People v. Sorto (2024) 104 Cal.App.5th 435, 440
On resentencing under section 1172.75, the court ordered that the original fines and fees imposed nearly 30 years earlier would remain the same. They are ordered stricken.
Effective January 1, 2025, section 1465.9 was amended to provide that, 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. Accordingly, the portion of the judgment imposing the restitution fine is vacated.
PEN 1465.9
The $70 fee imposed for AIDS education must be vacated. The original sentencing court imposed this fee pursuant to section 264(b), which states in relevant part: The judge may assess a fine not to exceed $70 against a person who violates Section 261 or former Section 262 with the proceeds of this fine to be used in accordance with section 1463.23. Section 1463.23, however, was repealed effective January 1, 2018. The provision authorizing the AIDS education fee (sec. 264, subd. (b)) was impliedly repealed in 2018, when the referenced statute (sec. 1463.23) was actually repealed, since it is no longer possible for the proceeds of this fine to be used in accordance with section 1463.23. Accordingly, the AIDS education fee is vacated.
Repeal of PEN 1463.23
The abstract of judgment filed in 2024 does not reflect the restitution fine or the AIDS education fee. We further note that the sentencing minute order similarly does not refer to any fines and fees imposed. Nevertheless, it is well established that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Accordingly, the clerk of the superior court is ordered to prepare an amended abstract of judgment and an amended sentencing minute order reflecting that the previously imposed restitution fine and AIDS education fee are vacated.
People v. Clark (2021) 67 Cal.App.5th 248, 260–261
Defendant was convicted of multiple counts of a sexual nature against children. There was insufficient evidence to support one of the counts. Six other counts are reversed because of a prejudicial error on their verdict forms for those counts (listing the descriptions of the crimes but incorrectly identifying the section number, thus possibly confusing the jury because there was another count that correctly bore that section number and the jury was instructed on its elements, which it may have incorrectly relied on for its verdicts in the erroneous verdict forms).
A conviction must be supported by substantial evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.
People v. Medina (2009) 46 Cal.4th 913, 919
We review the trial court’s denial of the new trial motion for abuse of discretion. The California Constitution provides that no judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The effect of this provision is to eliminate any presumption of injury from error and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant.
Cal. Const., art. VI, sec. 13
People v. Delgado (1993) 5 Cal.4th 312, 328
People v. Jacobs (1991) 230 Cal.App.3d 1337, 1346
Under the applicable prejudice standard, an erroneous verdict form is harmless if it is unmistakably clear under the totality of the circumstances that the jury intended to convict the defendant of the crime charged.
People v. Camacho (2009) 171 Cal.App.4th 1269, 1272
A prosecutor’s statement of facts not in evidence constitutes misconduct.
People v. Bolton (1979) 23 Cal.3d 208, 212