Monthly Archives: September 2026

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing

Case 001056

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly reflects a $120 court security fee and a $160 criminal conviction fee, instead of the $40 and $30 ordered by the court in its oral pronouncement. Further, on the attempted murder charge, the abstract must delete the reference to “First Degree,” because attempted murder is not separated into degrees. THe abstract of judgment must be corrected.

Holding:

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. Accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification.

This court has the authority to correct clerical errors at any time.

Authority:

PEN 1213

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

In re Black (1967) 66 Cal.2d 881, 890

Appellate Principles, Fifth Amendment, Jury trial, Sixth Amendment

Case 001055

Posted on by Gary McCurdy

Error and/or relief

The trial court’s failure to ensure that all 12 jurors were present together in court when the verdict was rendered violated the defendant’s statutory and constitutional right to a unanimous 12-person verdict and resulted in the recording of an invalid verdict.

(Gary note: During deliberations, the jury reached a unanimous verdict on some counts and the foreman signed the verdicts while the jury continued to deliberate on remaining counts. At some point the foreman was allowed to go on vacation, and an alternate juror took his place.

(When the final verdicts were read in open court, the jury was polled and all 12 confirmed the verdict. The problem is that the foreman who signed the jury verdict forms had been replaced, so only 11 of the jurors who voted on those verdicts were present in open court and were polled.)

First Holding:

The right to a trial by jury is a fundamental constitutional right guaranteed to a criminal defendant by both the state and federal constitutions. An essential aspect of that right is the right to a unanimous jury verdict. In California, a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.

Authority:

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, sec. 16

People v. Collins (2001) 26 Cal.4th 297, 304

Ramos v. Louisiana (2020) 590 U.S. 83, 92-93

People v. Collins (1976) 17 Cal.3d 687, 693, superseded by statute on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19

Second Holding:

To safeguard the right to a unanimous jury verdict, the Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict. Section 1147 requires all 12 jurors to be present when the trial court receives the verdict.

It provides that when the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.

Section 1149 requires that upon the jury appearing in court, the court, or clerk, must ask the jurors whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Authority:

PEN 1147

PEN 1149

People v. Carbajal (2013) 56 Cal.4th 521, 530

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Third Holding:

Sections 1163 and 1164 govern jury affirmation of the verdict by polling and the recording of the verdict.

Under section 1163, once the verdict has been rendered, either party may ask the court to poll the jurors individually before the verdict is recorded. Upon such a request, each juror must be asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Under section 1164, the jurors may also be polled, upon request, after the clerk has recorded the verdict. If any juror disagrees with the verdict at that point, the jury will again be sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case.

A verdict is complete when it has been rendered in compliance with these provisions, i.e., once it has been received and read by the clerk, acknowledged by the jury, and recorded.

Authority:

PEN 1163

PEN 1164

People v. Hendricks (1987) 43 Cal.3d 584, 597

People v. Bento (1998) 65 Cal.App.4th 179, 188

People v. Garcia (2012) 204 Cal.App.4th 542, 551

Fourth Holding:

Acknowledgement of the verdict in open court by all 12 members of the jury is not a mere procedural formality. It is essential to the validity of the verdict. If the jury returns a written verdict but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. It is the oral declaration of the jurors, not the submission of the written verdict forms, that constitutes the return of the verdict. In other words, there is no verdict absent unanimity in the oral declaration.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500-502, 506 (conc. opn.)

People v. Thornton (1984) 155 Cal.App.3d 845, 858-860

People v. Garcia (2012) 204 Cal.App.4th 542, 549-550

People v. Green (1995) 31 Cal.App.4th 1001, 1009

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Fifth Holding:

It follows from these authorities that a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury. This right requires that all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by any party, declared orally by each of the 12 jurors. In the absence of such a declaration, there is no verdict.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Bailey (2018) 27 Cal.App.5th 376, 387 [The right to a jury trial includes the right to a unanimous 12-person verdict, orally affirmed by each individual juror. In the absence of an express waiver by the defendant, an 11-person verdict violates that right—regardless of the reason it occurs.]

Sixth Holding:

When the jury rendered their verdict only 11 of the 12 jurors who deliberated together to reach the verdicts on the defendant’s charges were present in court to orally declare the verdicts. The initial foreperson who signed all of the defendant’s verdict forms had been excused due to a pre-planned vacation.

Because it is the oral declaration of the jurors, and not the submission of the written verdict forms that constitutes the return of the verdict, the defendant’s statutory and constitutional right to a unanimous verdict rendered by all 12 members of the jury was violated. Absent the express consent of the defendant, a valid verdict cannot be rendered by only 11 jurors.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Garcia (2012) 204 Cal.App.4th 542, 550

Seventh Holding:

Only 11 of the jurors who deliberated together to reach the verdicts on the defedant’s charges were present to render the verdict. The alternate juror who replaced the initial foreperson may have agreed with the verdicts on the defendant’s charges, but that juror did not participate in those deliberations, and his or her affirmation of the defendant’s verdicts was not sufficient to satisfy the 12-person requirement.

It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. A defendant may only be convicted by the 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity. It is those 12 jurors who must appear together in court when the verdict is rendered, and upon request, individually affirm the verdict.

Authority:

People v. Collins (1976) 17 Cal.3d 687, 693

Eighth Holding:

When the verdict has been read and recorded in the presence of all 12 jurors, minor procedural errors and technical violations of the statutory requirements for receiving the jury verdicts” are subject to harmless error analysis.

However, when only 11 members of the jury are present to render the verdict, the error is considered structural, and reversal is required.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 556-558, 560

People v. Traugott (2010) 184 Cal.App.4th 492, 505 [the denial of a 12-person jury rendering a unanimous verdict is clearly structural and, as such, reversible per se]

Borns v. Butts (1979) 98 Cal.App.3d 208, 210 [prejudice is inherent in the entry of an invalid verdict and judgment], overruled on other grounds in Juarez v. Superior Court (1982) 31 Cal.3d 759, 768-769.

Ninth Holding:

Both the state and federal constitutions prohibit placing a person in jeopardy more than once for the same offense. Unless sound reason exists, California courts will not interpret the California double jeopardy clause more broadly than its federal counterpart.

Authority:

U.S. Const., 5th Amend. [no person shall be subject for the same offense to be twice put in jeopardy of life or limb]

Cal. Const. art. I, sec. 15 [Persons may not twice be put in jeopardy for the same offense]

People v. Eroshevich (2014) 60 Cal.4th 583, 588

People v. Wilson (2023) 14 Cal.5th 839, 852

Tenth Holding:

The legal standards governing double jeopardy are well established. At its core, the double jeopardy clause protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 588

Green v. United States (1957) 355 U.S. 184, 187

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Eleventh Holding:

Once jeopardy has attached, the question of whether double jeopardy principles bar a second trial depends on how the first trial ended. An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. Similarly, when the jury is discharged without having issued a verdict, courts will treat that circumstance as equivalent in law to an acquittal and retrial will be barred unless the defendant consented to the discharge or legal necessity required it.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Twelfth Holding:

The rules differ when the trial ends in a conviction. As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.

We therefore apply the general rule that when the defendant secures a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Hernandez (2003) 30 Cal.4th 1, 6

United States v. DiFrancesco (1980) 449 U.S. 117, 131

People v. Wilson (2023) 14 Cal.5th 839, 852-853

Lockhart v. Nelson (1988) 488 U.S. 33, 38

In re Hess (1955) 45 Cal.2d 171, 176 [by failing to object to the entry of judgment on the defective verdict and by collaterally attacking the judgment petitioner has impliedly waived any objection to being retried on the charge of which he was improperly convicted]

Sentencing, Sixth Amendment, Standard of review

Case 001054

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by relying on an aggravating factor—namely that the defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2))—that was not found true by a jury nor did the defendant stipulate to its truth.

First Holding:

A sentencing court may not impose a determinate upper term sentence unless there are circumstances in aggravation of the crime that justify its imposition, and the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial.

Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

PEN 1170(b)(1), (b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

The aggravating circumstance described in rule 4.421(b)(2) of the Rules of Court (prior convictions are numerous or of increasing seriousness), though related to the facts of prior convictions, must be submitted to a jury to determine beyond a reasonable doubt, in the absence of a stipulation or jury trial waiver.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085 [a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness, and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence]

Third Holding:

While the evidence may have been sufficient to support a finding of increasing seriousness, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion. A rational juror could have reached the opposite conclusion here based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions.

Accordingly, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness. The judgment is reversed, the sentence is vacated, and the matter is remanded for a full resentencing under current law. The prosecution may retry the factors in aggravation, if it wishes to.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Discretion, Duty of the court, Sentencing, Standard of review

Case 001053

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.

First Holding:

Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged. The trial court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Second Holding:

A defendant is suitable for diversion if:

(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment;

(2) the defendant agrees to waive their speedy trial rights;

(3) the defendant agrees to comply with treatment requirements; and

(4) the defendant will not pose an unreasonable risk of danger to public safety as defined.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Third Holding:

But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Fourth Holding:

When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.

(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.

(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”

(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”

(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Fifth Holding:

The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment

In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.

Authority:

People v. Calabar (2025) 117 Cal.App.5th 41, 58

Sixth Holding:

We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.

Authority:

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

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Seventh Holding:

When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892

People v. Moine (2021) 62 Cal.App.5th 440, 452

People v. Frahs (2020) 9 Cal.5th 618, 640-641

People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

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

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735