Monthly Archives: August 2026

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000323

Posted on by Gary McCurdy

Error and/or relief

Remanded for retrial of the strike prior allegation. The amended version of section 186.22 must be applied in determining whether prior convictions with a gang enhancement qualify as serious felonies under the Three Strikes law.

First Holding:

In 2021, the Legislature passed AB 333, which amended section 186.22. This legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Second Holding:

In Fletcher, relying in part on the present conditional phrasing of section 1192.7(c)(28)—which applies to any felony offense that would also constitute a felony violation of section 186.22–the Supreme Court held that current law (i.e., AB 333) applies to the determination of whether a prior conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28). The Supreme Court also concluded that there was insufficient evidence in that case that the defendants’ convictions were obtained under AB 333’s more stringent requirements because the only evidence presented were the abstracts of judgment, which merely showed the offenses and gang enhancements. Accordingly, the Supreme Court vacated the strike prior findings and directed the Court of Appeal to remand with instructions to retry the gang allegations under AB 333’s amendments to section 186.22.

Authority:

PEN 1192.7(c)(28)

People v. Fletcher (2025) 18 Cal.5th 576, 603-604

Abstracts and Minutes

Case: 000322

Posted on by Gary McCurdy

Error and/or relief

The sentencing court stayed all fines and fees based on the defendant’s inability to pay. The minute order from the sentencing hearing notes the various fines and fees the court imposed, but does not specifically reflect the fines and fees were stayed. The minute order is ordered corrected to reflect that all fines and fees were ordered stayed pending a determination of the defendant ability to pay.

First Holding:

This court has the inherent power to order correction of clerical errors in court records.

Authority:

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

Duty of the court, Sentencing, Standard of review

000321

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentence on the robberies which served as the predicate offenses for his murder conviction under the felony murder theory. We remand for full resentencing so the trial court may determine whether section 654 applies to all of the underlying robberies or to only one, and to correct other errors (if any) that the parties asserted in this appeal.

First Holding:

Section 654 provides that the same act or omission shall not be punished under more than one provision of law. Thus, where felony murder is the sole theory of murder under which the case was prosecuted, section 654 precludes imposition of separate terms for the predicate felonies for the theory of felony murder, for which defendant received his first degree murder sentence.

Authority:

PEN 654
People v. Montes (2014) 58 Cal.4th 809, 898

Second Holding:

An appellate court normally reviews the trial court’s factual determinations in applying section 654 for substantial evidence.

Authority:

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

People v. Jacobo (2019) 37 Cal.App.5th 32, 53-54

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000320

Posted on by Gary McCurdy

Error and/or relief

This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.

First Holding:

The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

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

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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

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

People v. Duff (2010) 50 Cal.4th 787, 796 [when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence]

People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]

Third Holding:

Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067

Amelioration, Sentencing, Standard of review

Case: 000319

Posted on by Gary McCurdy

Error and/or relief

Summary denial of of the defendant’s 1172.6 petition without an evidentiary hearing was error where the jury had been given instructions that permitted it to find defendant guilty of murder under the felony murder rule or under the natural and probable consequences doctrine, and allowed it to find him guilty of attempted murder under the natural and probable consequences doctrine.

First Holding:

In 2018, the Legislature passed SB 1437 that amended sections 188 and 189 to significantly limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder as it applies to aiding and abetting. The bill also added section 1172.6 to provide a procedural mechanism for defendants who could no longer be convicted of murder because of the amendments to petition for retroactive relief. The Legislature later amended section 1172.6 effective January 1, 2022, to provide resentencing relief to defendants convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

SB 1437

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Rodriguez (2024) 103 Cal.App.5th 451, 457

Second Holding:

Section 189 as amended effective January 1, 2019, provides that a participant in the perpetration of a robbery or kidnapping (or attempted perpetration of those crimes) in which a death occurs is liable for first degree murder only if it is proven that the participant was the either (i) the actual killer; (ii) was not the actual killer but with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of the first degree murder; or, (iii) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

Third Holding:

Upon receipt of a petition that sets forth the required allegations, the trial court must conduct a prima facie analysis and hearing to determine the defendant’s eligibility for relief. Although the court should not reject the petition’s factual allegations without first conducting an evidentiary hearing, it may make a credibility determination adverse to the defendant if the court’s own documents refute those allegations.

Authority:

PEN 1172.6(b)(3) and (c)

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lewis (2021) 11 Cal.5th 952, 960

Fourth Holding:

We review de novo the trial court’s denial of a section 1172.6 petition at the prima facie stage.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 545

Fifth Holding:

It appears the trial court found that giving instructions that allowed the jury to find defendant guilty of murder based on theories of liability that had been abrogated by SB 1437 was harmless because the jury also received instructions on the still valid theories of being a major participant who aided and abetted with an intent to kill or acted with reckless indifference to human life. The difficulty here, however, is defendant was convicted in 2012, well before Banks clarified the law concerning major participant findings by identifying a series of considerations to assist in the inquiry whether a defendant is a major participant. Clark reiterated the Banks elements and substantially clarified the considerations relevant to determining whether a defendant acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 798-804

People v. Clark (2016) 63 Cal.4th 522, 611-623

Sixth Holding:

Unless a felony murder defendant was tried after Banks, a major participant finding will not defeat an otherwise valid prima facie case for section 1172.6 resentencing relief and, unless a defendant was tried after Clark, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case for such relief. Because defendant was convicted before Banks and Clark, the special circumstance findings that he was a major participant who acted with reckless indifference to human life do not preclude him from establishing a prima facie case for resentencing relief.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 721