Monthly Archives: August 2026

Sentencing

Case 000529

Posted on by Gary McCurdy

Error and/or relief

The court erred in including nonvictims in its postconviction protective order under section 136.2(i)(1).

First Holding:

Section 136.2(i)(1) provides that when a defendant has been convicted of a crime that requires the defendant to register as a sex offender, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The trial court does not have authority to restrain a defendant from contacting a person who was not a victim of the crime.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 648

Second Holding:

The term “victim” under section 136.2 is not limited to only those individuals named in the charge for which the defendant was convicted. A victim may include anyone with respect to whom there is reason to believe that any crime is being or has been perpetrated or attempted to be perpetrated. Thus, a “victim of the crime” may include a person not named in the count on which the defendant was convicted, so long as that person was a victim of the same crime.

It is possible for a protective order to protect more than one person/victim and the statute does not require that a person be expressly identified in a charging instrument in order to be considered a victim. A protective order is available for one or more persons as long as each person is a ‘victim’ of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 647

People v. Walts (2025) 112 Cal.App.5th 127, 142, 143-144, fn. 4

Third Holding:

Several courts have vacated protective orders where the persons listed in the protective orders either were not present during the incident or did not suffer harm as a result of the offense for which the defendants were convicted.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 648–649 [Person A was not present when Pena committed sexual battery against the victim]

People v. Walts (2025) 112 Cal.App.5th 127, 144 [the defendant’s ex-wife and the other children did not suffer continuous sexual abuse]

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [the minor children were present but asleep during incident]

Abstracts and Minutes

Case 000528

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that the sentence was enhanced under section 12022(a) (armed with a firearm) and not under section 12022.5 (use of firearm).

Holding:

The appellate court may direct the trial court to correct clerical errors in an abstract of judgment.

Authority:

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

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000527

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose the upper term based on factors that were not proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2) states that when a statute allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of the upper term. Rule 4.421(b) sets out several aggravating factors relating to a defendant: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; (2) The defendant’s prior convictions are numerous or of increasing seriousness; (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The court stated that it found beyond a reasonable doubt that the defendant showed an increasing and violent criminal history, he posed a danger to society, and he does not perform well in probation or on parole.

Authority:

PEN 1170(b)

Rules of Court, rule 4.421

Second Holding:

Subsequent to the date of sentencing, the United State Supreme Court decided Erlinger, holding that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed—including certain details relating to prior convictions—must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. Thus, in sentencing a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 824

Third Holding:

Under the reasoning of Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079-1080, 1086,

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 743

Fourth Holding:

Whether a defendant’s crimes showed increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. Those factors must be assessed by a jury; such a finding involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, which is the limitation on a court’s power under the reasoning of Erlinger.

The same is true for a finding that a defendant’s performance on probation had been unsatisfactory, because even where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements. It cannot be shown that a rational juror could conclude that the prosecution has failed to prove beyond a reasonable doubt that these facts constitute factors in aggravation.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1089-1091

Appellate Principles, Sentencing

Case 000526

Posted on by Gary McCurdy

Error and/or relief

At sentencing, the trial court found the defendant, who was found guilty of assault with a deadly weapon and vandalism, was not a suitable candidate for probation and imposed a custodial sentence. As part of that sentence, the court issued an indefinite stay-away order barring the defendant from the specific address of the apartment complex where the victim lived. It was improper to issue a protective order, which must be stricken.

First Holding:

Claims that a sentence is unauthorized may be raised for the first time on appeal and should be corrected whenever a reviewing court identifies the error.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 382

Second Holding:

Section 136.2(a)(1), allows a trial court to issue protective orders during a criminal case. But courts have read that provision to allow protective orders only while the criminal action is pending. In response, the Legislature added subdivision (i) to section 136.2, which allows postconviction protective orders lasting up to 10 years, but only when the defendant is convicted of domestic violence, certain sexual offenses, street terrorism, or crimes requiring sex offender registration.

Outside of those categories, section 136.2 does not give the trial court statutory authority to impose the postconviction protective order. The order here was unauthorized on two independent grounds. First, it was indefinite in duration and not tied to the pendency of the criminal proceedings. The trial court denied probation, so the order was not authorized as a condition of probation. A postjudgment restraining order imposed under these circumstances falls outside the authority granted by section 136.2 and must be stricken. Second, the trial court never made a finding of good cause to believe that the defendant posed an ongoing risk of intimidating or dissuading the vicitm or anyone else at the complex.

Authority:

PEN 136.2

People v. Corrales (2020) 46 Cal.App.5th 283, 286

People v. Stone (2004) 123 Cal.App.4th 153, 159

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

Third Holding:

A criminal protective order must also rest on a finding of good cause to believe that the defendant is likely to try to intimidate or dissuade a victim or witness. The fact that a victim was harmed or threatened with harm is not enough on its own.

Authority:

Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962

Elements of crime, Jury trial, Sentencing

Case 000525

Posted on by Gary McCurdy

Error and/or relief

Reversal of the conviction on one of the counts is called for because there is a reasonable probability that one of defendant’s acts improperly formed the basis of two convictions.

First Holding:

As to count 1, the jury found defendant not guilty of assault with a deadly weapon, but found him guilty of the lesser included offense of simple battery and found him guilty of injuring a dating partner (count 2). As to count 3, the jury found defendant not guilty of assault by means of force to cause great bodily injury but found him guilty of the lesser included offense of simple assault. The conviction for injuring a dating partner (count 2) and the simple assault conviction (count 3) are based upon the same conduct and, because the latter is a lesser included offense of former, he cannot be convicted of both.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 919 [simple assault is a necessarily included offense of infliction of a corporal injury (sec. 273.5)]

Second Holding:

The jury was not advised that they could not convict defendant of both injuring a dating partner and a simple assault based on the same act. The gist of the prosecution’s summation focused on the single act of throwing a rock that hit the victim. In view of the People’s arguments and the lack of instruction to the jury, it is reasonably probable that the same act formed the basis for defendant’s conviction for infliction of a corporal injury as well as the simple assault conviction. Accordingly, we reverse the simple assault conviction.

Authority:

People v. Cole (1982) 31 Cal.3d 568, 582 [if the evidence supported the verdict as to a greater offense then the conviction on that offense is controlling and the conviction on the lesser offense must be reversed]