Daily Archives: September 2, 2026

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Sentencing

Case 000844

Posted on by Gary McCurdy

Error and/or relief

A portion of the defendant’s presentence custody status was preconviction home detention. That period was sufficiently custodial to entitle the defendant to custody and conduct credits. The matter is remanded for the trial court to determine what portion of the defendant’s preconviction status met the statutory requirements for creditable home detention.

First Holding:

Preconviction custody credits are governed by section 2900.5(a), which provides in relevant part that in all felony and misdemeanor convictions, either by plea or by verdict, all days of custody of the defendant, including days served in home detention pursuant to section 1203.016 or 1203.018, shall be credited upon his or her term of imprisonment.

Authority:

PEN 2900.5(a)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1087– 1088

Second Holding:

Section 1203.018 authorizes a county to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if certain conditions are met. An electronic monitoring program is defined as including home detention programs. The statute authorizes the board of supervisors to prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate.

Authority:

PEN 1203.018

Third Holding:

When a defendant is subject to preconviction electronic monitoring conditions under terms that are as custodial, or restraining as a statutory home detention program pursuant to section 1203.018, equal protection principles entitle that defendant to preconviction custody credits under section 2900.5 and conduct credits under section 4019.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1089

Fourth Holding:

Whether a defendant is in custody for the purposes of section 2900.5 is a matter of statutory interpretation, a question of law we review de novo. The burden is on the accused to establish entitlement to presentence custody credit.

Authority:

People v. Ravaux (2006) 142 Cal.App.4th 914, 919

People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258

Pleading, Statutory interpretation

Case 000843

Posted on by Gary McCurdy

Error and/or relief

Defendant’s two convictions for methamphetamine possession were based on the same act and one of them must therefore be reversed. Count 2 must be vacated. Because the record does not indicate defendant’s current status or the extent to which the invalid conviction may have influenced the trial court’s sentencing choices, we will remand the matter for appropriate action by the trial court.

First Holding:

A defendant may be charged in an accusatory pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged, but if two alleged offenses are different statements of the same offense, both offenses may be charged based on the same act, but convictions for both cannot stand.

Authority:

PEN 954

People v. Aguayo (2022) 13 Cal.5th 974, 979

Second Holding:

The most reasonable construction of the language in Penal Code section 954 is that the statute 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.

Authority:

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

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that 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. 

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude 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, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

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

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case 000841

Posted on by Gary McCurdy

Error and/or relief

The Court of Appeal treated this appeal as a petition for writ of habeas corpus, and struck the enhancement for the now-invalid prison term enhancement.

Habeas was necessary because the defendant’s name did not appear on a list prepared and maintained by the California Department of Corrections and Rehabilitation (CDCR), so the defendant was not eligible to apply for resentencing under section 1172.75.

The court granted the writ, directing that the prior prison term enhancement be stricken, and also ordered correction of an error contained in the abstract of judgment.

First Holding:

Section 1172.75, effective in 2022, provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant 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.

The statute also establishes a process for recalling sentences that include now-invalid prior prison term enhancements and resentencing affected defendants. It requires the Secretary of the CDCR and the county correctional administrator of each county to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and to provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.

Upon receiving this information, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in section 1172.75(a). If the judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant.

Section 1172.75 does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.

While defendant’s petition is not sufficient to authorize the trial court to act pursuant to section 1172.75, jurisdiction can be found if the CDCR provided the court with a list identifying defendant while his petition was pending.

In this case, the CDCR never identified defendant to the trial court as someone eligibile for section 1172.75 resentencing, and the trial court did not have jurisdiction to resentence the defendant under section 1172.75. Therefore, the trial court’s resentencing and related abstract of judgment and minute order are void.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 384

People v. Cota (2023) 97 Cal.App.5th 318, 332 [trial court is statutorily authorized to act once trial court receives defendant’s identification information from CDCR]

People v. Escobedo (2023) 95 Cal.App.5th 440, 447–448

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Chavez (2018) 4 Cal.5th 771, 780

Third Holding:

On appeal from a void judgment or order, we must reverse the trial court’s void acts because simply dismissing the appeal would leave intact the void judgment.

Authority:

People v. Gray (2024) 101 Cal.App.5th 148, 170

People v. Alanis (2008) 158 Cal.App.4th 1467, 1477, fn. 5

Fourth Holding:

Where, as here, execution of sentence has commenced and the judgment is final, the trial court is generally deprived of jurisdiction to resentence a criminal defendant.  To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75). 

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 339

People v. Karaman (1992) 4 Cal.4th 335, 344

Dix v. Superior Court (1991) 53 Cal.3d 442, 455

People v. Hernandez (2019) 34 Cal.App.5th 323, 326

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118

Fifth Holding:

A trial court may recall and resentence a defendant on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, provided the new sentence, if any, is no greater than the initial sentence.

A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1172.1(a)(1)

Sixth Holding:

A defendant may, however, invite the court to exercise its discretion under section 1172.1.

However, appellate courts have uniformly held that a trial court’s summary decision not to take up a defendant’s invitation under section 1172.1 is not an appealable order and that any such appeal fails to confer jurisdiction to the Court of Appeal.

There is no indication in the record that the trial court intended to grant defendant’s invitation to recall and resentence him pursuant to section 1172.1.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375

People v. Brinson (2025) 112 Cal.App.5th 1040, 1047

People v. Roy (2025) 110 Cal.App.5th 991, 1001

People v. Faustinos (2025) 109 Cal.App.5th 687, 695–696

People v. Hodge (2024) 107 Cal.App.5th 985, 996

Seventh Holding:

The record does reflect that a prior prison term enhancement was imposed illegally (because it was imposed AFTER the statute was amended declaring such prior prison term enhancements to be invalid).

Both parties have requested that we treat defendant’s appeal as a petition for writ of habeas corpus with respect to the sentence he is still serving, and we exercise that discretion.

Accordingly, for the sake of judicial economy, we shall deem defendant’s appeal, in part, a petition for writ of habeas corpus and order that the abstract of judgment be modified to strike defendant’s former section 667.5 enhancement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

Eighth Holding:

The abstract of judgment erroneously reflects that the firearm enhancement is attached to count II instead of count I, which it was actually attached to. Having reviewed the record on appeal, we shall order the abstract of judgment corrected.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89