Monthly Archives: August 2026

Abstracts and Minutes

Case 000730

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment misstates the actual sentence imposed and must be corrected.

First Holding:

Initially, the defendant’s aggregate 42-years-to-life sentence consisted of seven years to life for the attempted murder, plus 10 years for the gang enhancement, and 25 years to life for the gun enhancement. In the defendant’s prior appeal, we modified the sentence as follows: the term specified for count 1 is modified to provide for a term of life with possibility of parole. For the gang enhancement, the 10-year term is stricken; instead, the judgment shall provide that defendant shall not be paroled until a minimum of 15 calendar years has been served. We made no change to the 25 to life firearm enhancement.

The abstract of judgment does not reflect the sentence actually imposed. For clarity, the amended abstract of judgment should be modified as follows: the term specified for attempted premeditated murder on count 1 is modified to provide for a term of life with the possibility of parole. For the gang enhancement under section 186.22(b)(1)(C), the 10-year term is stricken, and defendant shall not be paroled until a minimum of 15 years has been served. For the gun enhancement in violation of section 12022.53(d), the term is 25 years to life. Defendant’s aggregate sentence is 32 years to life with parole eligibility after 40 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [courts may correct clerical errors at any time, and may order the correction of abstracts of judgment that do not accurately reflect the sentence imposed]

Amelioration, Sentencing

Case 000729

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court was required to resentence the defendant under the Three Strikes Reform Act of 2012 to determine whether he should be sentenced as a second strike defendant under the Act, subject to a finding that such resentencing would present an unreasonable risk of danger to the public in the context of the Act.

First Holding:

The Three Strikes Reform Act of 2012 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.

Authority:

PEN 1170.126

PEN 1172.75

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

Second Holding:

In Guevara, the Supreme Court held that 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:

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

Third Holding:

Section 1172.75 requires that the resentencing court makes a new determination as to whether a defendant’s resentencing would pose an unreasonable risk of danger to public safety as of the present day. A prior finding that a particular defendant poses a risk to public safety under section 1170.126(f) is unquestionably relevant, and will no doubt be given consideration by a court subsequently resolving a resentencing under section 1172.75 involving an indeterminate Three Strikes sentence.

However, given significant passage of time, it is possible that a defendant who once presented a threat to public safety may no longer do so. For instance, not only may defendants present evidence that they have significantly rehabilitated since a prior section 1170.126 proceeding, but serious illness or advanced age may have substantially reduced the danger to public safety they once posed. Realistically assessing such changed circumstances is appropriately left to the trial court on remand.

On remand, the trial court should conduct an analysis of whether defendant, at the time of the hearing, continues to pose a danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 17

Fines and fees, Sentencing

Case 000728

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court should have vacated the restitution fine that was imposed more than 10 years earlier. We remand the case for the court to determine the defendant’s ability to pay the parole revocation restitution fine, which is not vacated by section 1465.9(d).

First Holding:

Effective January 1, 2025, AB 1186 added subdivision (d) to section 1465.9, which provides 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. It does not, however, apply to the parole revocation restitution fine.

Authority:

PEN 1465.9(d)

Second Holding:

In Kopp, our Supreme Court clarified that, although fines may properly be imposed as punishment for crime, the excessive fines analysis under the state and federal Constitutions is the proper vehicle to challenge punitive fines, such as parole revocation fines. In addition, a trial court must conduct an ability to pay hearing before imposing a restitution fine (or corresponding parole revocation fine) that exceeds the statutory minimum of $300.

Authority:

People v. Kopp (2025) 19 Cal.5th 1 23, 17, 30

Elements of crime, Sentencing

Case 000727

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should not have punished the defendant for both robbery and assault with a deadly weapon.

First Holding:

We review the trial court’s decision to sentence the defendant separately for the robbery conviction and the assault with a deadly weapon conviction, for substantial evidence that he harbored a separate intent and objective for each offense. Here, there is no substantial evidence to support the trial court’s implicit finding that the defendant’s intent in assaulting the victim was separate from his intent to rob him of the item.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Second Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Whether an assault was committed with the intent to facilitate a robbery is a fact-bound determination.

Authority:

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299

Fourth Holding:

Additionally, temporal proximity, or the lack of it, can be a relevant consideration in determining the divisibility of a course of conduct.

Authority:

People v. Nunez (2012) 210 Cal.App.4th 625, 630 [Use of hammer to facilitate carjacking could not be punished as both the robbery and assault with a deadly weapon]

Fifth Holding:

A robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.

Authority:

People v. Estes (1983) 147 Cal.App.3d 23, 27-28

Probation Parole PRCS, Sentencing, Standard of review

Case 000726

Posted on by Gary McCurdy

Error and/or relief

The court ordered appellant participate and complete general education/counseling and mental health counseling at the discretion of and as directed by probation. We find that delegating unfettered discretion to the probation department to determine whether appellant shall participate and complete education and counseling is impermissible and violates the separation of powers doctrine.

As such, we strike this probation condition and remand the matter to the trial court to consider whether or not appellant shall participate in and complete education and counseling as a condition of his probation, consistent with this opinion.

First Holding:

The People argue that appellant forfeited his probation-condition challenge by failing to object to it at the sentencing hearing. The forfeiture doctrine is a well-established principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Strong policy reasons support this rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.

The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

In re Sheena K. (2007) 40 Cal.4th 875, 880–881

Second Holding:

One exception to the forfeiture doctrine includes a facial constitutional challenge—one that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.

Appellant presents a facial challenge: the issue is whether the trial court may, under the separation of powers doctrine, delegate to the probation officer the determination of whether appellant must participate and complete education/counseling and mental health counseling.

Such a claim is not predicated on the factual details about the specific education and counseling ordered, appellant’s specific rehabilitative needs, or on the details of the programming the probation officer could determine under this condition. The forfeiture doctrine does not apply in this circumstance.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 885, 887-888

Third Holding:

The California Constitution separates the state government’s power into legislative, executive, and judicial branches and prohibits persons charged with the exercise of one power to exercise either of the others except as permitted by the California Constitution. The separation of powers doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

A trial court has broad discretion to impose probation conditions to promote rehabilitation of the defendant and to protect the public. The court also has authority to empower the probation department with authority to supervise the probation conditions.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

Authority:

PEN 1203.1(j)

PEN 1202.7

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fifth Holding:

We review a constitutional challenge to a probation condition de novo.

Authority:

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Sixth Holding:

Imposing a probation condition that subjects the defendant to the approval or direction of the probation officer is a permissible delegation. But delegating to a probation officer the decision of whether a defendant will participate in a specific form of treatment is an improper delegation of judicial authority.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–309

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903 [probation condition violates separation of powers doctrine by delegating to probation officer whether the defendant would be required to attend residential treatment/therapy/counseling program]

Seventh Holding:

Here, the court’s order for appellant to submit to education and counseling was much broader than simply leaving the details of that programming to the probation department, it gave the probation department the unlimited discretion to decide whether appellant is required to participate and complete general education and counseling at all.

Specifically, the court ordered appellant to participate and complete education/counseling and mental health counseling at the discretion of and as directed by the probation department.

This is an invalid delegation of judicial authority: although the court may delegate to probation the determinations of when and where a condition will be satisfied, the court may not delegate the decision of whether counseling or education shall be completed.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903