Monthly Archives: September 2026

Appellate Principles, Duty of the court, Jury instructions

Case 001046

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not sua sponte instruct the jury that, for the defendant to be found guilty of petty theft, the jury must unanimously agree on the item(s) taken.

First Holding:

When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.

The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 464-465

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

Second Holding:

The failure to give a unanimity instruction may be harmless error if the appellate court can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 466

People v. Napoles (2002) 104 Cal.App.4th 108, 119 [erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors s not reasonably possible]

Third Holding:

(Gary note: The court described the ambiguity of the defendant’s intent in conjunction with moving Item A from the house to the garage, where he left it before fleeing. It concluded that the error was therefore not harmless. But it made an interesting comment regarding the respondent’s argument, which I set forth in this Third Holding.)

Because the Attorney General addresses only the [Item A], we take it as a concession there is reasonable doubt as to whether the jury could have come to a unanimous decision on the other possible acts of theft.

Authority:

People v. Bouzas (1991) 53 Cal.3d 467, 480 [state’s failure to respond to appellant’s point concedes it]

Sentencing, Statutory interpretation

Case 001045

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to decline to award conduct credit on two of the counts, because their offenses were not ineligible for conduct credit at the time they were committed. Further, it was error to issue a no-visitation order on behalf of a person who is no longer a minor.

First Holding:

As a result of amendments to the One Strike Law in 2006 (section 667.61) persons serving an indeterminate sentence under that section are not entitled to credit for time served beyond the actual days they were in custody. There is no reduction for good behavior or performing work.

Although section 667.61 as amended makes no mention of conduct credit, the amendment deleted a previous reference that limited the conduct credit to 15% of the sentence imposed. The legislative history does make it abundantly clear that the intent was to eliminate conduct credit for such persons.

Authority:

Penal Code section 667.61

People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268

People v. Adams (2018) 28 Cal.App.5th 170, 182

Second Holding:

The amendment cannot be applied retroactively. Both the federal and the California Constitutions prohibit ex post facto laws. The federal and California ex post facto clauses do not just bar retroactively increased prison terms. They also prohibit any law that retroactively disadvantages the offender by increasing the punishment for crimes committed before the law’s enactment.

Consequently, the ex post facto clauses prohibit any law that constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. As it is unclear whether the offenses described in two of the counts were committed before or after the amendment’s effective z People (September 20, 2006, as urgency legislation), conduct credit cannot be denied on those counts.

Authority:

U.S. Const., art. I, sec. 10, cl. 1

Cal. Const., art. I, sec. 9

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Weaver v. Graham (1981) 450 U.S. 24, 35-36

People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [agreeing that a change in law ending the defendant’s ability to earn good conduct credit violated the proscription against ex post facto laws]

Third Holding:

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. Consequently, when the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261 [Verdicts cannot be deemed sufficient to establish the z People of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurred on or after the z People of the punishment’s enactment]

Fourth Holding:

Under section 1202.5, if a defendant is sentenced to prison for committing a lewd act under section 288, and the victim is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.

As this section authorizes prohibitions against visitation with a child victim, it has been interpreted to apply only to victims who are under the age of 18 at the time of the contemplated visitation. Here, the victim was in her 20s at the time of sentencing, and the court therefore lacked authority to include her in the no-visitation order.

Authority:

PEN 1202.05

People v. Scott (2012) 203 Cal.App.4th 1303, 1323

Eighth Amendment, Equal protection, Plea bargains, Probation Parole PRCS, Sentencing

Case 001044

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 16 months in jail as a condition of probation. The matter must be remanded for resentencing, and for the court to determine the issue of the amount of the restitution fine in light of Kopp.

First Holding:

The trial court imposed a jail term of 16 months as a condition of probation because he had missed his appointment with his probation officer and failed to appear at the sentencing hearing. However, section 19.2 provides that, except in situations not here relevant, in no case shall any person sentenced to confinement in a county or city jail, as a condition of probation upon conviction of either a felony or a misdemeanor, be committed for a period in excess of one year.

Authority:

PEN 19.2

Second Holding:

Although Bailey held that the one-year limit may be waived by the defendant, Bailey is distinguishable because the defendant Bailey entered a knowing and intelligent waiver. There is no evidence here that the defendant was informed of the 12-month limit under section 19.2, and his agreement to the longer term was therefore not a knowing and intelligent waiver.

Authority:

People v. Bailey (1983) 140 Cal.App.3d 828, 831

People v. Arnold (2004) 33 Cal.4th 294, 308 [regarding waiver of credit for time served, the gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5]

People v. Sivongxxay (2017) 3 Cal.5th 151, 166 [criminal defendant’s waiver of right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it]

Third Holding:

On remand, the defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state constitutions. As to ancillary costs, if requested by the defendat, the trial court shall consider his inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1), allowing the parties to present any relevant evidence or argument on the matter.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 30-31

Abstracts and Minutes, Sentencing

Case 001043

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment states that the defendant was sentenced to prison per “PC 1170(a) or 1170(h)(3) due to current or prior serious or violent felony.” The defendant has not committed a serious or violent felony.

Holding:

(Gary note: there was very little discussion by the court. It noted that the abstract was incorrect, because the defendant’s conviction did not qualify as a serious or violent felony. The court sought input from the parties, and the parties agreed that the abstract was wrong and needed to be corrected. The court so ordered. The court cited no authority for the correction of the abstract, so I have listed some of the cases that the court could have cited had it felt it necessary to cite authority to do what the parties both agreed needed to be done.)

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

Plea bargains, Sentencing

Case 001042

Posted on by Gary McCurdy

Error and/or relief

The court erred in not staying the sentence under section 654 for one of the two counts. The defendant’s sentence is reversed and the matter is remanded to the trial court for resentencing. On remand, the trial court shall select a sentence to stay execution of pursuant to section 654.

First Holding:

Where, as here, probation is revoked after imposition of sentence was previously suspended, a court must determine all matters necessary for sentencing, including whether section 654 applies.

Authority:

Cal. Rules of Court, rules 4.435(b)(1), 4.433(c)(3), 4.424

Second Holding:

Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. When section 654 applies, the trial court has the discretion to select which statute to punish the defendant under and must stay execution of the other, duplicative sentences.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

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

Third Holding:

We review the trial court’s explicit or implicit factual findings on section 654 issues for substantial evidence. The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal.

Authority:

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

Fourth Holding:

The record shows that the defendant removed an item from a business and was apprehended a short distance away from that business with the item still in his possession. At defendant’s sentencing hearing, the trial court indicated it was pretty obvious that defendant stole the item for the purpose of obtaining possession of it and then using it to support his drug habit. Under these circumstances, section 654 prohibits defendant from being punished for both theft and possession.

Authority:

People v. Allen (1999) 21 Cal.4th 846, 866-867

In re Adams (1975) 14 Cal.3d 629, 634

Fifth Holding:

Where, as here, the trial court suspended imposition of sentence and the defendant who was granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 934