Monthly Archives: August 2026

Elements of crime, Sentencing, Standard of review

Case 000735

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient as a matter of law to support the jury’s true findings on gang enhancements attached to counts 1 and 2, and a gang-murder special circumstance attached to count 1.

First Holding:

When considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Such evidence must be reasonable, credible and of solid value.

Authority:

People v. Renteria (2022) 13 Cal.5th 951, 970

Second Holding:

To establish a gang enhancement, the prosecution was required to prove the defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang and did so with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute requires proof of a common benefit to members of a gang where the common benefit is more than reputational. Examples of qualifying nonreputational benefits include financial gain or motivation, retaliation, targeting rivals, or witness intimidation.

Authority:

PEN 186.22

Third Holding:

The gang-murder special circumstance required the prosecution to prove that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. Thus, the special-circumstance allegation depended upon the same gang-related findings underlying the section 186.22 enhancements, including the “more than reputational” requirement in section 186.22(g).

Authority:

PEN 190.2

PEN 186.22

People v. Campbell (2023) 98 Cal.App.5th 350, 378

Fourth Holding:

Substantial evidence does not support the jury’s true findings on the gang enhancements attached to counts 1 and 2 or the gang-murder special circumstance attached to count 1. In short, the requirements of section 186.22(g) were not met. Consequently, these findings must be stricken. Based on the principle of double jeopardy, retrial is barred.

Authority:

PEN 186.22(g)

Lockhart v. Nelson (1988) 488 U.S. 33, 39

People v. Garcia (2014) 224 Cal.App.4th 519, 526 [a gang enhancement reversed for insufficient evidence may not be retried]

Fifth Holding:

Because these findings formed part of the overall sentencing package, remand for full resentencing is required.

Authority:

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

Juveniles, Probation Parole PRCS, Sentencing

Case 000734

Posted on by Gary McCurdy

Error and/or relief

The court imposed as a condition of probation: “Do not associate or communicate with your co-participant and anyone you know who is on probation, parole, or a gang member” The defendant objects to the inclusion of the phrase “or a gang member.” The condition must be modified.

First Holding:

The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. Although courts have broad discretion to set conditions of probation, the trial court’s discretion in setting the conditions of probation is not unbounded.

Authority:

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

People v. Lopez (1998) 66 Cal.App.4th 615, 624

Second Holding:

A term of probation is invalid if 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 that is not itself criminal is valid if that conduct is reasonably related to the crime of which the minor was convicted or to future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 48

Third Holding:

When a gang condition imposed by the juvenile court involves non-criminal conduct and prohibits a minor from engaging in otherwise legal conduct, we can uphold it only if there is a reasonable connection between the condition and the offense or between the condition and future criminality. Gang-related probation conditions are reasonably related to preventing future criminality when there is evidence of the minor’s affiliation with criminal street gangs.

In the absence of evidence of gang affiliation or association with gang members or risk of gang involvement on the minor’s part, the gang condition is not tailored to his future criminality. In this case, any connection between the minor’s offense and gang activity is speculative.

Accordingly, the condition is modified to “Do not associate or communicate with your co-participant and anyone you know who is on probation or parole.”

Authority:

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236

People v. Brandão (2012) 210 Cal.App.4th 568, 574

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000733

Posted on by Gary McCurdy

Error and/or relief

We strike the protective order, because none of the offenses involved domestic violence. We also remand to give the defendant the opportunity to present evidence on his ability to pay the restitution fine and assessments.

First Holding:

Although initially charged with crimes involving domestic violence, his guilty plea was to a crime that did not involved domestic violence as defined in section 13700 or in Family Code section 6211. His crime is not specifically listed in section 136.2(i)(1), and it does not require registration as a sex offender. Hence, the trial court was without authority at sentencing to issue the criminal protective order for the victim’s benefit under section 136.2(i)(1). As the court did not have statutory authority to issue the criminal protective order, it must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

The court imposed a $2,400 restitution fine, as well as a $2,400 parole revocation fine pursuant to section 1202.45. The court also imposed a $40 court operations assessment (sec. 1465.8(a)(1)) and a $30 court facilities assessment (Gov. Code, sec. 70373(a)(1)).

After sentencing, while this matter was still on appeal, the Supreme Court issued its opinion in Kopp. As to punitive fines, including restitution fines, the court found that due process does not require a trial court to hold an ability to pay hearing before imposing every punitive fine.

However, the court also noted that both the federal and state Constitutions prohibit excessive fines, and held that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

As to court operations assessments and court facilities assessments, which are ancillary costs, the court held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment.

Because neither defendant nor the trial court had the benefit of Kopp’s reasoning and holding at the time of the sentencing hearing, we will direct the court to give defendant an opportunity to challenge the restitution fine and the assessments under Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13, 23, 30

Appellate Principles

Case 000732

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a victory, but it contains an important principle. If an appellate wilfully absconds from the jurisdiction of the court, the Court of Appeal may dismiss the appeal. Which it did here. The prosecution moved to transfer the juvenile matter to an adult court of criminal jurisdiction. While the motion was still pending, the minor failed to appear in court. His counsel informed the court that she no longer had communication with the minor.

The juvenile court issued a warrant for failure to appear. An investigator found that the minor took a flight to England and did not return. The juvenile court proceeded with the transfer motion with the minor in absentia and granted the transfer motion, finding clear and convincing evidence that the minor was not amenable to rehabilitation under the juvenile court’s jurisdiction. As of the opinion date, the minor has not been located and remained at large.

First Holding:

An appellate court may dismiss the appeal of a defendant who is a fugitive from justice.

Authority:

Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531

Second Holding:

A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.

Authority:

MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277

Third Holding:

Courts have no jurisdiction over persons charged with crime, unless in custody actual or constructive. It would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be effective.

Authority:

People v. Redinger (1880) 55 Cal. 290, 298

Fourth Holding:

Appellate disentitlement based on fugitive status is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction for a party’s flight. Various justifications have been advanced for its application: (1) assuring the enforceability of any decision that may be rendered on or following the appeal; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the other side caused by the defendant’s escape.

Authority:

People v. Puluc–Sique (2010) 182 Cal.App.4th 894, 897–898

Duty of the court, Sentencing

Case 000731

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. We remand with directions to the trial court to recalculate the defendant’s custodial credits and to reimpose the restitution order with joint and several liability.

First Holding:

When the defendant was originally sentenced in 2008, the trial court imposed a restitution order of (more than $50,000) on all three defendants. The court ordered joint and several liability, that is, each defendant is entitled to a credit for any actual payments by the other. The trial court has the authority to order direct victim restitution paid by all defendants jointly and severally. On resentencing, the court reimposed an order for restitution in the same amount, but did not make an order of joint and several liability. To prevent the possibility of unjust enrichment—a double recovery by the victim—the restitution order must be corrected to reflect joint and several liability.

Authority:

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

People v. Leon (2004) 124 Cal.App.4th 620, 622 [if two defendants convicted of the same crime caused economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Second Holding:

The trial court erred in delegating the recalculation of the defendant’s custody credits to the Department of Corrections and Rehabilitation. The trial court should have recalculated and pronounced the number of custody credits the defendant had garnered to the date of resentencing. When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

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