Monthly Archives: August 2026

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

AppellateAdvisor Updates

Case 000714

Posted on by Gary McCurdy

Error and/or relief

At a Penal Code section 1172.75 resentencing hearing, the appellant moved to dismiss one of his two prior strike convictions under Romero. In denying his Romero motion, the trial court erroneously found that the defendant was a “fourth striker.” We hold that it is reasonably probable that the trial court would have granted the defendant’s Romero motion had it not made this error. We therefore reverse the judgment and remand the matter to the trial court to reconsider the defendant’s Romero motion.

First Holding:

The Three Strikes law consists of two, nearly identical statutory schemes designed to increase the prison terms of repeat felons. In Romero, the Supreme Court held that the trial court may, in furtherance of justice, strike prior felony allegations in cases arising under the Three Strikes law pursuant to section 1385(a). At the section 1172.75 resentencing hearing in this case, the trial court was required to apply Romero and subsequent revisions to the Three Strikes law regarding enhancements.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 503, 504

Second Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, SB 136 amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.

Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB 136 retroactive by adding what is now section 1172.75 to the Penal Code.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

People v. Burgess (2022) 86 Cal.App.5th 375, 380

Third Holding:

Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 345

Fourth Holding:

A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strike law’s sentencing scheme. The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike convictions; and (3) the defendant’s background, character, and prospects. If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant as though he had not previously been convicted of one or more serious and/or violent felonies.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161

Fifth Holding:

We review a trial court’s denial of a Romero motion for abuse of discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373

Sixth Holding:

The trial court denied the defendant’s Romero motion in part based on an erroneous belief that he was a fourth striker when he was actually a third striker. The trial court’s characterization of the defendant’s prior criminal record in denying Romero relief was erroneous and, accordingly, we conclude the trial court abused its discretion in denying the defendant Romero relief.

Regarding forfeiture, it is true that the defendant’s trial counsel did not object to the trial court’s mischaracterization of the defendant’s prior criminal record. We have discretion, however, to reach the merits of an argument that has not been preserved for review.

We exercise that discretion here because it is in the interests of justice to address the defendant’s meritorious contention. Had the court granted his Romero motion, this would have changed his sentence from an indeterminate term to a determinate one. By reaching the merits, we obviate the need to address the parties’ contentions regarding whether trial counsel was prejudicially ineffective by not objecting.

Authority:

People v. Williams (1998) 17 Cal.4th 148,v 161, fn. 6

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [To forestall defendant’s ineffective assistance of counsel claim, we decline to find forfeiture under the circumstances of this case]

Seventh Holding:

Turning to whether the error was prejudicial, we conclude it was. When a trial court has given both proper and improper reasons for a sentencing choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

A reasonable judge could have concluded the defendant’s purported fourth strike weighed strongly against granting Romero relief. Given comments by the judge in the record that favored the defendant, we conclude it is reasonably probable the court would have granted the motion had it known the defendant was a third striker and not a fourth striker. We remand for resentence.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

Abstracts and Minutes

Case 000713

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains an error that must be corrected.

Holding:

The abstract of judgment contains a clerical error. In section 2 concerning enhancements, the abstract of judgment shows a sentence of 10 years for the firearm enhancement on the robbery count. That portion of the sentence should be in parentheses—the designation commonly used for concurrent terms—because the trial court imposed the sentence on count 2 to be served concurrently to the sentence on count 1. Accordingly, we direct the trial court to correct the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct clerical errors in an abstract of judgment]

Fourth Amendment, Standard of review

Case 000712

Posted on by Gary McCurdy

Error and/or relief

This was an appeal by the prosecutor from the grant of the defendant’s motion to suppress evidence under section 1538.5. It is considered a victory here because the Court of Appeal affirmed the order granting the motion to suppress.

First Holding:

The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. However, consensual encounters do not trigger Fourth Amendment scrutiny. Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.

Authority:

People v. McWilliams (2023) 14 Cal.5th 429, 437

In re Manuel G. (1997) 16 Cal.4th 805, 821

Second Holding:

Consensual encounters are those police-individual interactions that result in no restraint of an individual’s liberty whatsoever—i.e., no seizure, however minimal—and which may properly be initiated by police officers even if they lack any objective justification. The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions, so long as a reasonable person would understand that he or she could refuse to cooperate.

The citizen participant in a consensual encounter may leave, refuse to answer questions or decline to act in the manner requested by the authorities. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838

Third Holding:

In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838

Fourth Holding:

The test for the existence of a show of authority is an objective one and does not take into account the perceptions of the particular person involved. The test is not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. This includes an examination of both an officer’s verbal and nonverbal actions in order to assess the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.

Authority:

People v. Paul (2024) 99 Cal.App.5th 832, 838–839

Fifth Holding:

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.

Authority:

People v. Ramos (2004) 34 Cal.4th 494, 505

Sixth Holding:

Given that the officer had just woken defendant from his slumber in his legally parked vehicle, and that defendant did not place the call for service the the officer testified he told the defendant he was responding to, the officer’s statement would have placed an objectively reasonable person on alert that the officer might be investigating him specifically, which would lead that reasonable person to conclude that the officer required his attention and he could not simply depart.

Given the deferential standard of review we apply to the trial court’s factual findings, that the officer woke defendant from his slumber while he was legally parked with his window up, that the officer was blocking the vehicle’s door when he woke defendant, and that the officer’s statement would have placed an objectively reasonable person on alert that the officer might be investigating him specifically, we affirm the trial court’s ruling.

Authority:

Wilson v. Superior Court (1983) 34 Cal.3d 777, 790–791

People v. Linn (2015) 241 Cal.App.4th 46, 58, 65

Abstracts and Minutes, Effective assistance of counsel, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268