Monthly Archives: August 2026

Abstracts and Minutes, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Amelioration, Discretion, Sentencing

Case 000759

Posted on by Gary McCurdy

Error and/or relief

At the hearing on a petition for resentencing (the opinion does not state under which statute the petition was filed, but in the body of the opinion it mentions section 1172.1, under which various entities can recommend the recall of sentence and resentencing), the trial court denied the defendant’s request to reduce his kidnap for robbery conviction to the lesser included offense of false imprisonment, stating that it did not have discretion to do so. The court erred, as it did have the discretion. We remand for the court to exercise its discretion.

First Holding:

Under section 1172.1(a)(3)(B), the trial court may in the interest of justice vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense then resentence the defendant to a reduced term of imprisonment. Defendant thus asked the trial court at the hearing on his petition to reduce his conviction on count 2 from a kidnap to false imprisonment as the other counts in his sentencing were false imprisonment. The trial court viewed the request as a challenge to the evidence and declined to revisit the evidence.

The court indicated that it did not have the discretion to do anything but impose the sentence on the count of conviction. The court’s comments confirm that it was unaware it had the discretion under section 1172.1, subdivision (a)(3)(B) to reduce defendant’s kidnapping-for-robbery conviction on count 2 to false imprisonment and resentence him to a reduced term for that offense. The trial court thus abused its sentencing discretion.

Authority:

PEN 1172.1(a)(3)(B)

In re White (2020) 9 Cal.5th 455, 470

Second Holding:

When, as here, the trial court is unaware of its sentencing discretion, we must remand for resentencing unless the record clearly indicates that the trial court would have made the same decision if it had been aware of its discretion. The record does not indicate that. If anything, it indicates that the trial court might have imposed a lesser sentence on count 2 if it believed it had the discretion to do so. We therefore remand for a full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Terwilligar (2025) 109 Cal.App.5th 585, 601

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Marcus (2020) 45 Cal.App.5th 201, 214 [Because there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices.]

People v. Byucks (2018) 5 Cal.5th 857, 893

Abstracts and Minutes

Case 000758

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment includes clerical errors which should be corrected to accurately reflect the trial court’s oral pronouncement. First, it reflects imposition of a restitution fine without also indicating that the court stayed the fine. Second, it incorrectly states the sentence imposed by the court.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Courts have the inherent power to correct such clerical errors, either on their own motion or upon the application of the parties.

Authority:

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

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error]

Sentencing, Standard of review

Case 000757

Posted on by Gary McCurdy

Error and/or relief

While affirming the lower court’s finding that section 654 did not apply, it did find that the sentence for the second count was unauthorized, as the trial court purported to impose one-third the middle term to be served concurrently with the other count. It should have imposed a full term to run concurrently, as the one-third the middle term calculation applies only when sentences are to be served consecutively.

First Holding:

A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. An appellate court can correct an unauthorized sentence on appeal when such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3 [vacating and correcting the unauthorized sentence rather than remanding for resentencing because the record clearly reflects the trial judge’s intention to run the unauthorized sentence concurrently and not impose any additional consecutive time]

Second Holding:

The imposition of one-third the middle term for subordinate offenses applies in case of consecutive, but not concurrent, sentences. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

As such, imposition of one-third the midterm sentence on a concurrent term is an unauthorized sentence. However, remand for resentencing is unnecessary because the record clearly indicates that the trial court intended to run the sentence on his possession of a firearm conviction concurrently and not impose any additional consecutive time.

Authority:

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Third 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. The statute therefore precludes multiple punishments for a single act or indivisible course of conduct. Multiple punishment includes the imposition of both concurrent and consecutive sentences because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

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

People v. Jones (2012) 54 Cal.4th 350, 353, 358

Fourth Holding:

The proscription against double punishment in section 654 is applicable where there is a course of conduct which … comprises an indivisible transaction punishable under more than one statute.… The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.

Authority:

People v. Bauer (1969) 1 Cal.3d 368, 376

Fifth 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. In the context of a conviction for possession of a firearm by a felon, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved.

Authority:

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

People v. Bradford (1976) 17 Cal.3d 8, 22

Sixth Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. The evidence in this case indicates that the defendant bought the firearm and possessed it for a substantial period before the shooting, not simply during the shooting.

Authority:

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

People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 [courts have determined that section 654 applies where the defendant obtained the prohibited weapon during the assault in which he used the weapon]

Amelioration, Discretion, Sentencing

Case 000756

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court erred in believing that it had no discretion to consider defendant’s motion pursuant to dismiss prior serious felony enhancements under Romero. The matter is reversed and remanded to the trial court with directions to hold a full resentencing hearing at which the court must consider defendant’s Romero motion.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b) to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code.

In 2021, SB 483 made this change retroactive. It enacted what is now Penal Code section 1172.75, which states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. To facilitate the process, the statute directs California’s Department of Corrections and Rehabilitation (CDCR) to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Upon receiving that information, the sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant. The statute provides separate deadlines for identification, review, and resentencing of individuals currently serving a sentence based on the enhancement and all other individuals.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. As relevant here, subdivision (d) specifies: that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The trial court must apply the sentencing rules of the Judicial Council as well as any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

In addition, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed. The trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of defendant’s strike priors after recalling his sentence and for the purpose of resentencing him under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Monroe (2022) 85 Cal.App.5th 393, 400

People v. Dowdy (2024) 107 Cal.App.5th 1, 9-13

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