Monthly Archives: September 2026

Abstracts and Minutes, Sentencing

Case 001021

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The trial court imposed and stayed section 12022.1 bail enhancements as to counts 4, 5, 6, and 7. The determinate abstract of judgment erroneously omits the section 12022.1 enhancement as to count 5.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract of judgment must be corrected to reflect the sentence for the section 12022.1 enhancement on count 5, which the trial court stayed.

Authority:

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

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

Abstracts and Minutes, Sentencing

Case 001020

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The abstract reflects the sentence as 60 years to life, but the court pronounced the sentence as 50 years to life on the crime plus 10 years for the use of a firearm. The abstract must be corrected to reflect the oral pronouncement of judgment.

Authority:

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

Elements of crime, Sentencing

Case 001019

Posted on by Gary McCurdy

Error and/or relief

Because their was no requisite relationship between the defendant and the victim, it was error for the court to impose a protective order.

First Holding:

Section 136.2(i)(1) and (i)(2) provide in relevant part that when a criminal defendant has been convicted of a crime involving domestic violence, as defined in Penal Code section 13700 or in Family Code section 6211, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim or percipient witness of the crime.

Authority:

PEN 136.2(i)

Second Holding:

Penal Code section 13700 defines domestic violence to mean, in relevant part, abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.

Authority:

PEN 13700

Third Holding:

Family Code section 6211 defines domestic violence to mean, in relevant part, abuse perpetrated against:

(a) A spouse or former spouse;

(b) A cohabitant or former cohabitant;

(c) A person with whom the respondent is having or has had a dating or engagement relationship;

(d) A person with whom the respondent has had a child;

(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; or

(f) Any other person related by consanguinity or affinity within the second degree.

Authority:

FAM 6211

Fourth Holding:

The defendant did not have a relationship with the victim within the meaning of either Penal Code section 13700 or Family Code section 6211. Nor did the defendant’s crimes fall within any of the other offenses enumerated in section 136.2(i), which lists other qualifying offenses including human trafficking, specified sex offenses, and participation in criminal street gang.

Therefore, the post-conviction protective order was unauthorized under section 136.2(i). It must be vacated.

Authority:

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case 001018

Posted on by Gary McCurdy

Error and/or relief

The trial court was mistaken in concluding that the jury was not instructed on felony murder, and was therefore in error when it denied the petition for resentencing under section 1172.6 at the prima facie stage.

Holding:

A person convicted of felony murder may file a petition to have the murder conviction vacated and to be resentenced under section 1172.6. For reviewing the petition at the prima facie stage to determine whether it states facts that, if true, presents a qualifying claim, the Legislature has set the prima facie bar intentionally low.

The record in fact establishes that the jury was instructed on felony murder. Because the record of conviction does not preclude the possibility that the jury could have improperly imputed malice, the trial court erred in denying the defendant’s petition at the prima facie stage. Remanded for further proceedings.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 972

Elements of crime

Case 001017

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from his convictions of two counts of misdemeanor battery. Appellant contends, and respondent agrees, that both counts are based on the same act and both convictions cannot stand.

Holding:

An amended information charged appellant in count 1 with battery with serious bodily injury in violation of Penal Code section 243(d) and in count 3 with battery with injury on a peace officer in violation of section 243(c)(2). A jury found appellant not guilty of both counts, and guilty of the lesser included offense of misdemeanor battery (sec. 242) for both counts. The defendant’s single head-butt resulted in two convictions for misdemeanor battery. Only one conviction can stand.

A defendant may not be convicted of multiple counts for the same offense based on a single criminal act.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 994, fn. 8 [“we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Torres (2019) 39 Cal.App.5th 849, 858-859 [explaining that when a defendant is convicted of two of the same offenses based on the same act, the error cannot be corrected by simply staying the sentence on one count]