Daily Archives: September 6, 2026

Amelioration, Appellate Principles, Sentencing

Case 000940

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for recall under section 1172.6, challenging his convictions for murder. The petition was denied, and the denial was affirmed on appeal. The opinion noted that the defendant had not challenged his convictions for attempted murder. The defendant then filed a section petition to challenge his convictions of attempted murder in light of legislation enacted to encompass attempted murder under section 1172.6. The trial court summarily denied that petition on the grounds that he had already filed a petition that had been denied.

That was error.

First Holding:

On January 1, 2019, SB. 1437 eliminated the natural and probable consequences doctrine as a basis for murder and limited the scope of the felony murder rule. SB 1437 also created the resentencing procedure at issue here. The defendant filed his first section 1172.6 petition seeking resentencing of his conviction for second degree murder pursuant to the changes to the law effectuated by SB 1437.

On January 1, 2022, while the defendant’s first petition was pending, SB 775 further amended the Penal Code to eliminate the natural and probable consequences doctrine as a theory of liability for attempted murder.

Authority:

SB 1437

SB 775

PEN 1172.6

Second Holding:

The defendant’s first petition sought resentencing of the murder conviction only. This court expressly did not consider the attempted murder convictions as they had not been presented for resentencing in the trial court.

The denial of the first petition did not prevent the defendant from subsequently seeking resentencing of the attempted murder convictions once that relief became available due to changes in the law. The second petition was not the same as the first.

We therefore reverse the trial court order denying the defendant’s second petition for resentencing. On remand, the trial court must appoint counsel for the defendant and conduct further proceedings under section 1172.6 as to his attempted murder convictions.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 949–951

Duty of the court, Fines and fees

Case 000939

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing for the trial court to state the statutory basis for the imposed fines and fees.

First Holding:

The matter must be remanded for the trial court to orally pronounce the applicable statutory citations for each imposed fine and fee in the case and for the corresponding probation minute order to be amended accordingly. The absence of statutory citations for the $165 “restitution fine” and the $40 “[c]ourt [s]ecurity [f]ee” and the absence of a statutory citation for the $35 “infraction fee” in the minute order must be corrected.

Authority:

People v. High (2004) 119 Cal.App.4th 1192

Second Holding:

Although a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed. A trial court’s failure to specify the amount and statutory basis for each fine, fee, and penalty assessment imposed is legal error. Such error may be reviewed on appeal even in the absence of an objection.

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

People v. Eddards (2008) 162 Cal.App.4th 712, 715

People v. Hartley (2016) 248 Cal.App.4th 620, 637

Third Holding:

A court may adequately pronounce judgment by imposing a specific fine and generally referring to the applicable penalty assessments. However, the responsibility then falls to the trial court clerk to specify the penalties and surcharge in appropriate amounts in the minutes and, more importantly, the abstract of judgment or the probation minute order. This includes providing a statutory basis of each fine or fee imposed.

Authority:

People v. Voit (2011) 200 Cal.App.4th 1353, 1373

People v. Sharret (2011) 191 Cal.App.4th 859, 864

People v. Eddards (2008) 162 Cal.App.4th 712, 715, 718

Fourth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fines and fees, Sentencing

Case 000938

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the booking fee imposed pursuant to former Government Code section 29550.2.

Holding:

The main jail booking fee (former Gov. Code, sec. 29550.2), imposed by the trial court at the early 2021 sentencing hearing and reimposed at the 2025 hearing, was repealed by the passage of AB 1869, effective July 1, 2021 AB 1869 enacted Government Code section 6111, which provides that on and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to section 29550.2 is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, the main jail booking fee reimposed at the 2025 sentencing hearing must be vacated.

Authority:

GOV 6111(a)

Former GOV 29550.2

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

Error and/or relief

In this appeal by the People following the resentencing of the defendant under section 1172.75, we affirm the lower court’s granting of a new trial on the gang-related special circumstances and gang enhancement allegations in light of AB 333.

First Holding:

The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would have rendered the same verdict absent the instructional error created by the passage of AB 333.

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. The People recognize this general rule, but contend independent review is more fitting given that the court below was not the original trial judge and based its review on a cold transcript and exhibits.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1260

Second Holding:

Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. We will review the trial court’s order for abuse of discretion.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1262-1263

Third Holding:

In 2021, the Legislature passed AB 333, which became effective January 1, 2022. The new legislation made several changes to the definition of section 186.22 gang enhancements.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang. (

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be ‘more than reputational.

Authority:

PEN 186.22

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

Fourth Holding:

Although AB 333 does not expressly address the gang-murder special circumstance set forth in section 190.2(a)(22), the latter statute defines criminal street gang by express cross-reference to section 186.22(f). The same is true for a firearm enhancement alleged pursuant to section 12022.53(e)(1).

Authority:

People v. Hin (2025) 17 Cal.5th 401, 461

People v. Cooper (2023) 14 Cal.5th 735, 746

Fifth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error. To prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. Rather, the question is whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

(Gary note: The court then proceeded to examine the written opinion of the trial judge, and discussed the judge’s reasoning and statements of findings that led the trial court to the conclusion that a new trial was warranted. Those facts and that analysis are beyond what these summaries are designed to present, because the facts relied on in an unpublished opinion cannot be related to control a result in another case, and neither can the trial court’s reasoning be cited as authority, persuasitive or otherwise.)

Authority:

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

People v. Flood (1998) 18 Cal.4th 470, 504

People v. Sek (2022) 74 Cal.App.5th 657, 668

People v. Lamb (2024) 16 Cal.5th 400, 449

People v. Mil (2012) 53 Cal.4th 400, 417

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000936

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the defendant’s eight-month sentence for count 4 under section 654. The sole objective in possessing the firearm (count 3) and the ammunition (count 4) was to have an operable firearm. Accordingly, the possession offenses were part of an indivisible course of conduct and cannot be separately punished. We otherwise affirm the judgment.

First Holding:

During the defendant’s sentencing hearing, the court concluded that because the .22-caliber ammunition was not loaded into the .22 rifle, section 654 does not prohibit a separate punishment. And because possession of ammunition increases the ability to use the firearms and the danger, the court imposed sentences of one-third the middle term, or eight months, for each of counts 3 and 4.

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.

A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.

Authority:

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

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Blake (1998) 68 Cal.App.4th 509, 512

Second Holding:

Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Third Holding:

Here, the .22-caliber rifle giving rise to count 3 and the same-caliber ammunition giving rise to count 4 were found in close proximity to each other. The defendant argues the only difference between this case and Broadbent and similar cases is that he safely stored the firearm separately, but in the same room as the ammunition. He contends that this difference is immaterial and does not demonstrate separate intents and objectives. We agree that drawing a distinction on this basis parses the objectives too finely.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

Because the record is devoid of evidence to support the court’s implicit finding that the defendant harbored two different objectives in possessing both a rifle and nearby compatible ammunition, we conclude on this record that section 654 precludes multiple punishment for the defendant’s possession of a firearm as well as several rounds of ammunition just feet away.

Although not raised by the parties, section 1170.1(a)’s one-third the middle term rule does not apply to a sentence stayed under section 654. We therefore modify the stayed 8-month consecutive sentence to a stayed middle term of two years.

Authority:

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198