Monthly Archives: August 2026

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Shively (2025) 111 Cal.App.5th 460, 468

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

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case: 000338

Posted on by Gary McCurdy

Error and/or relief

When it initially granted the defendant probation, the court waived various fines and assessments based on indigence. On revocation of probation, the court imposed a restitution fine and other assessments. Remanded for the court to consider the defendant’s challenges to the fees and assessments in light of a recent Supreme Court decision.

First Holding:

Under the Supreme Court’s holding in Kopp a defendant may challenge the imposition of any fine as constitutionally excessive. Because Kopp was decided after entry of the juidgment on appeal here, the defendant should have the opportunity to make such a challenge. Though the court could determine that the issue was forfeited for lack of objection, forfeiture may be excused where to require defense counsel to raise an objection would place an unreasonable burden on defendants to anticipate unforeseen changes in the law.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

People v. Perez (2020) 9 Cal.5th 1, 8

People v. Brown (2024) 101 Cal.App.5th 113, 127 [Courts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law.]

Second Holding:

A restitution fine under section 1202.4(b)(1) is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. ) Section 1202.4, subdivision (b)(1), states that the minimum restitution fine is $300 for each felony conviction and that the maximum fine is $10,000. Section 1202.4, subdivision (c), allows the court not to impose the restitution fine for compelling and extraordinary reasons, but states the defendant’s inability to pay is not a compelling and extraordinary reason not to impose the minimum fine. Thus, the defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4
People v. Kopp (2025) 19 Cal.5th 1, 13, 30

People v. El (2021) 65 Cal.App.5th 963, 967

People v. Preston (2015) 239 Cal.App.4th 415, 423

People v. Miracle (2018) 6 Cal.5th 318, 356

People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033 [Under section 1202.4(c), the trial court may not consider a defendant’s ability to pay when imposing the minimum restitution fine of $300, but the court may consider the defendant’s ability to pay if the court imposes a restitution fine above the minimum.]

Third Holding:

Although fines may properly be imposed as punishment for crime, the “excessive fines analysis” under the United States and California Constitutions, which considers ability to pay, is the proper vehicle to challenge punitive fines. But there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine.

Authority:

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

Fourth Holding:

Section 1465.8(a)(1) requires, to assist in funding court operations, an assessment of $40 to be imposed on every conviction for a criminal offense. Government Code section 70373(a)(1) requires, to ensure and maintain adequate funding for court facilities, that $30 assessment be imposed on every conviction for a criminal offense. Both costs are mandatory. But equal protection principles require a court, upon request, to 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).

Authority:

PEN 1465.8

GOV 70373(a)(1)

People v. Kopp (2025) 19 Cal.5th 1, 9, 15

People v. Robinson (2012) 209 Cal.App.4th 401, 405

Abstracts and Minutes

Case: 000337

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment should be amended to reflect one additional day.

Holding:

[GARY NOTE: Likely because the error and solution are so obvious, the court did not cite authority in support of its order. But it COULD have cited any of several cases, some of which I have listed below.]

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

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

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Duty of the court, Sentencing, Standard of review

Case: 000336 (There is no 000335)

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence for either the assault or the battery conviction.

First Holding:

Although Code of Civil Procedure section 269 provided defendant with a statutory right to a certified shorthand reporter rather than an electronic recording, we conclude violation of that statutory right was harmless. The proceedings were recorded electronically and extensive transcripts were prepared based on the recordings.

The California Supreme Court has held that the trial court’s failure to comply with Penal Code section 190.9, requiring that all proceedings in a capital case be conducted on the record with a court reporter present, was harmless where the record was nevertheless adequate to permit meaningful appellate review.

Similarly, here, defendant possessed a statutory right to a certified court reporter, but the trial court’s inability to comply with that right, regardless of the reason, was harmless so long as the electronic recording produced an adequate appellate record.

(Gary note:  You might want to look at Family Violence Appellate Project v. Superior Court (Contra Costa County) 8/10/26 S288176, in which the Supreme Court recognized the right to a verbatim transcript, whether by certified shorthand reporter or electronic, despite the Government Code section 69957 proscription against use of electronic recording other than in limited exceptions.  While the case was a civil dispute, the principles would seem to apply in criminal cases as well.  It’s at least worth looking at, because it may be useful on the quality of the transcript process even where criminal proceedings are electronically recorded.)

Authority:

CCP 269

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1256-1258 (Hajek and Vo were abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216)

Second Holding:

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.

Authority:

PEN 654

Third Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act.

Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Section 654 prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective.

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.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Latten (2021) 63 Cal.App.5th 574, 577

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

Fourth Holding:

Section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Thus, unless the record clearly indicates which sentence the trial court would stay, remand is required to permit the trial court to exercise its discretion.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Duty of the court, Sentencing

Case: 000334

Posted on by Gary McCurdy

Error and/or relief

At the conclusion of the hearing under section 1172.75, the trial court miscalculated the credit for time served, and the abstract of judgment must be amended to reflect the correct credits.

Holding:

The trial court is directed to amend the abstract of judgment to reflect the correct days of custody credit.

Authority:

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

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8