Monthly Archives: August 2026

Discretion, Sentencing

Case: 000429

Posted on by Gary McCurdy

Error and/or relief

An insurer is not a “direct victim” eligible for restitution under section 1202.4

First Holding:

We review a restitution order for abuse of discretion.

Authority:

People v. Percelle (2005) 126 Cal.App.4th 164, 179

Second Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. Victim includes a corporation or any other legal or commercial entity when that entity is a direct victim of a crime. Thus, only the direct victim of a crime is entitled to restitution from the perpetrator of the offense.

Authority:

PEN 1202.4(f)

People v. Duong (2010) 180 Cal.App.4th 1533, 1537

Third Holding:

Direct victims include only the real and immediate objects of the defendant’s offenses Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders do not reasonably fit within this definition. As a result, restitution may not be awarded to insurers that partially reimbursed the direct victims for their losses, and trial courts may not divide the full amount of restitution between the victims and their insurers.

Authority:

People v. Birkett (1999) 21 Cal.4th 226, 233

Fourth Holding:

Accordingly, the trial court abused its discretion when it awarded restitution to the insurer. Instead, the court should have awarded the full restitution amount, including any amount awarded to the insurer, to the water district, which was the direct victim of the defendant’s crime, notwithstanding any reimbursement it already received from the insurer.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1537[a restitution order resting upon a demonstrable error of law constitutes an abuse of the court’s discretion]

People v. Hove (1999) 76 Cal.App.4th 1266, 1272 [insurance payments to the victim do not allow the defendant to escape responsibility for the losses he caused]

Fifth Holding:

Because the defendant does not contest the amount of restitution or the water district’s entitlement to that amount on appeal, we vacate the insurer restitution order and remand the matter so the court can order full restitution to the correct victim under section 1202.4.

Authority:

People v. Duong (2010) 180 Cal.App.4th 1533, 1540 [remanding so the trial court can order restitution to the victim for the amount that the hospital will accept as full payment for the medical services the victim received at the hospital]

Juveniles, Sentencing

Case: 000428

Posted on by Gary McCurdy

Error and/or relief

The juvenile court’s review of the probation report and relation motions before determining jurisdiction was prejudicial error and merits reversal.

First Holding:

The history of section 701 indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. The primary purpose of the jurisdictional hearing “is to determine whether sufficient evidence exists to declare the minor a ward of the juvenile court. If the court finds that the minor is a person described in section 602, the court must determine whether the minor’s offense would be a misdemeanor or a felony if committed by an adult. The court then proceeds to hold a disposition hearing.

Authority:

WIC 701

In re Gladys R. (1970) 1 Cal.3d 855, 859

In re P.A. (2012) 211 Cal.App.4th 23, 31–32

Second Holding:

At the jurisdictional hearing, the admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision. Proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by [Welfare & Institutions Code] [s]ection 602. Rule 5.780(c) further provides that the juvenile court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing.

Authority:

WIC 701

Rules of Court, rule 5.780(c)

Third Holding:

The juvenile court’s erroneous consideration of a probation report before determining jurisdiction is reviewed for harmless error under Watson. Under that standard, we determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Fourth Holding:

An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. In any event, to the extent the court did not understand the issue based on its colloquy with counsel, we exercise our discretion to reach the merits.

Authority:

People v. Scott (1978) 21 Cal.3d 284, 290

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Invited error bars a claim on appeal when a defendant, for tactical reasons, makes a request acceded to by the trial court and claims on appeal that the court erred in granting the request.

Authority:

People v. Russell (2010) 50 Cal.4th 1228, 1250

Sixth Holding:

If the jurisdictional facts presented at the hearing are far from conclusive, the juvenile court’s review of the probation report prior to determining jurisdiction constitutes prejudicial error. Thus, if the determination of jurisdiction is made by closely balanced evidence, reversal is proper.

Authority:

In re Gladys R. (1970) 1 Cal.3d 855, 862

In re James B. (2003) 109 Cal.App.4th 862, 875

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case: 000427

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for limited resentencing proceedings concerning the imposition of mandatory ancillary costs under Penal Code section 1465.8 and Government Code section 70373, both of which were omitted from the trial court’s original oral sentencing pronouncements.

First Holding:

The sentencing hearing transcript shows the trial court only imposed restitution and parole revocation fines, both in the amount of $500. The court purported to waive all fees and other fines without providing an explanation. Yet, the minute order and the indeterminate abstract of judgment indicate an imposed $200 court security fee pursuant to Penal Code section 1465.8, as well as a $150 criminal conviction assessment pursuant to Government Code section 70373.

The court security fee and the criminal conviction assessment are properly characterized as ancillary costs. That is, they are funding mechanisms created by the Legislature to raise funds for court operations and facilities; they are not punitive in nature. Imposition of these ancillary costs is mandatory for every criminal conviction except parking offenses. However, due to a robust fee waiver system in civil cases for the same types of ancillary costs, the unavailability of a fee waiver in criminal cases violates equal protection guarantees. Upon request by a criminal defendant, a trial court must consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). This includes allowing the parties to present and contest any relevant evidence or argument on the question.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 14-15, 26-27, 30

Second Holding:

[Gary Note: The court sidestepped the issue because it remanded for a Kopp hearing, but oral pronouncements prevail over written orders. The court has the authority to order corrections where the abstract of judgment or minute order does not reflect exactly what the court ordered. Had the court decided to order the correction, there are many cases it could have chosen from as authority. I have set forth a few below. Again, the discrepancy was moot in this case.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

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

Abstracts and Minutes, Sentencing

Case: 000426

Posted on by Gary McCurdy

Error and/or relief

It was error for the jury to convict defendant of counts 1 and 2, which appeared to be based on the same facts. The conviction on count 2 should be stricken. Further, counts 1 and 3 were part of an indivisible course of conduct with the same intent and objective, and section 654 therefor applies. And the abstract of judgment must be amended to reflect the correct count number for one of the counts.

First Holding:

The record shows that defendant was charged with kidnapping for ransom (PC 209(a)) in count 1 and kidnapping (sec. 207(a)) in count 2. The jury acquitted him of counts 1 and 2 as charged and found him guilty of false imprisonment (sec. 237(a)) as a lesser included offense on both counts. During closing argument and again at sentencing, the prosecutor acknowledged that counts 1 and 2 were charged in the alternative and were based on the same facts. Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. The conviction on count 2 should be stricken.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

Second Holding:

Section 654(a) provides, in pertinent part, 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. It precludes multiple punishments for a single act or indivisible course of conduct.The purpose of section 654 is to prevent multiple punishment for a single act or omission or indivisible course of conduct, even though that act or omission or indivisible course of conduct violates more than one statute and thus constitutes more than one crime.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294-295

People v. Liu (1996) 46 Cal.App.4th 1119, 1135

Third Holding:

It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. But if the defendant acts with multiple criminal objectives that are independent of, and not merely incidental to, each other, he may be punished for separate violations, even though the violations shared common acts or were part of an otherwise indivisible course of conduct. Thus, the principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. The trial court has broad latitude in determining whether section 654(a) applies in a given case.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136

People v. Garcia (2008) 167 Cal.App.4th 1550, 15

Fourth Holding:

A court’s determination, express or implied, that two crimes were separate, involving separate objectives, under section 654 is a question of fact we review for substantial evidence. We review the evidence in the light most favorable to the judgment and will affirm the court’s sentencing decision if it is supported by substantial evidence.

Authority:

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Fifth Holding:

Gratuitous violence against a helpless and unresisting victim has traditionally been viewed as not incidental to robbery for purposes of section 654. Section 654 cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.

Authority:

People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191

Sixth Holding:

So long as some substantial evidence to support the implied finding exists, there can be no reversal. Where the court made no express findings on the issue, a finding that the crimes were divisible is implicit in the judgment and must be upheld if supported by substantial evidence. Under this standard, the appellate court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Authority:

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1083

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

Seventh Holding:

We note a clerical error. Generally, a clerical error is one inadvertently made. Clerical errors can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. The abstract of judgment for the indeterminate term lists the assault with a deadly weapon as count 5; however, the assault was count 4 and should be listed as such.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000425

Posted on by Gary McCurdy

Error and/or relief

Having been sentenced to a term of life without the possibility of parole (LWOP) and an indeterminate sentence of 25 years to life, it was error to impose the parole revocation restitution fine. The abstract of judgment also must be corrected to reflect the custody credits awarded at the sentencing hearing.

First Holding:

Section 1202.45(a), provides that the court shall assess a parole revocation restitution fine in every case where a person is convicted of a crime and his or her sentence includes a period of parole. This parole revocation fine statute, however, does not apply in cases where the defendant is sentenced to LWOP and indeterminate terms. The parole revocation fine shall be stricken.

Authority:

People v. Alvarez (2025) 18 Cal.5th 387, 485–486 [parole revocation fine under sec. 1202.45 inapplicable where sentence was death]

People v. Battle (2011) 198 Cal.App.4th 50, 63 [improper to impose parole revocation fine where the defendant received an indeterminate term of 25 years to life and LWOP]

People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 [where the defendant is sentenced to LWOP, there can be no parole, and therefore the parole revocation fine was improperly assessed]

People v. Brasure (2008) 42 Cal.4th 1037, 1075 [parole revocation fine proper where the defendant, in addition to being sentenced to death, also sentenced to determinate term]

Second Holding:

The abstract of judgment is incorrect in reflecting the custody credits. The court’s oral pronouncement is correct, and it controls over the abstract of judgment or sentencing minute order. The trial court is directed to issue an amended abstract of judgment that accurately reflects the correct number of days of actual custody credit awarded by the court in its oral pronouncement of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time, and appellate courts with jurisdiction have the power to order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court]