Daily Archives: October 1, 2026

Juveniles, Sentencing

Case 001062

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in setting a maximum confinement term.

First Holding:

Welfare and Institutions Code section 726(d)(1) states that the juvenile court shall specify a maximum term of confinement if the minor is removed from the physical custody of the minor’s parent or guardian. Because the juvenile court did not remove the minor from parental custody, the juvenile court was not called upon to set a maximum term of confinement.

Authority:

WIC 726(d)(1)

In re G.C. (2020) 8 Cal.5th 1119, 1129

Second Holding:

Where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term.

Authority:

In re A.C. (2014) 224 Cal.App.4th 590, 592

Abstracts and Minutes, Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 001061

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously reflects a fine of $300 that was not imposed by the trial court. It must be corrected. Further, the matter must be remanded for the court to give the defendant the opportunity to challenge the imposition of any fine as constitutionally.

First Holding:

As a general rule, when there is a discrepancy between the oral pronouncement of judgment and the trial court’s records, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

Second Holding:

While this appeal was pending, the California Supreme Court addressed the means by which a criminal defendant may challenge various payments typically imposed at sentencing. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution.

As to fines, Kopp did not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, Kopp clarified that an excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines” under either the federal or state Constitutions.

As to ancillary costs, Kopp clarified that an equal protection analysis is appropriate and held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

As to restitution, Kopp reiterated that crime victims have a right to secure restitution from the persons convicted of the crimes causing the losses they suffer.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 23, fn. 17, 30

Third Holding:

Because the defendant did not have the benefit of Kopp’s reasoning and did not invoke the excessive fines clauses in the trial court, consistent with Kopp, we remand to give him the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Appellate Principles, Sentencing

Case 001060

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of conduct credit.

Holding:

The trial court awarded 4 days of conduct credit, under the 15% limit set by section 2933.1 for defendants convicted of a violent felony within the meaning of section 667.5(c). However, 15% of the actual days in custody results in 5.85. Thus, the defendant should have received 5 days as conduct credit, not 4 days.

Authority:

PEN 2933.1

PEN 667.5(c)

People v. Guillen (1994) 25 Cal.App.4th 756, 764 [erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented]

Appellate Principles, Elements of crime, Sentencing

Case 001059

Posted on by Gary McCurdy

Error and/or relief

The sentence for the defendant’s conviction for unlawful possession of ammunition should be stayed because it arises from the same, indivisible act underlying his conviction for possession of a firearm by a felon.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. 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

Second Holding:

Because a stay of the defendant’s 16-month sentence on count three results in a relatively minor reduction in his total sentence [essentially, 67.333 years to life], we will modify the judgment instead of remanding the case for further proceedings.

Authority:

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [Staying execution of the penalty imposed for the lesser offense remains the preferred remedy where the reduction in sentence would be relatively minor]

Appellate Principles, Elements of crime, Sentencing

Case 001058

Posted on by Gary McCurdy

Error and/or relief

Among many other offenses committed during related incidents over a period of time, the defendant was convicted of two counts of being in possession of an assault weapon and two counts of being a felon in possession of a firearm. We reverse one of each of those counts.

First Holding:

Possession of a firearm by a felon is a continuing offense. The concept of a continuing offense is well established. Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.

Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. The crime achieves no finality until such time.

In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. As the evidence does not support any conclusion but continuing possession, one of the defendant’s convictions for being a felon in possession of a firearm must be reversed and one of his convictions for possession of an assault weapon must be reversed.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

It is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate error that justifies reversal of the judgment. To demonstrate error, appellant must present meaningful legal analysis that supports the claim of error. We are not required to examine undeveloped claims or to supply arguments for the litigants.

Authority:

Jameson v. Desta (2018) 5 Cal.5th 594, 608-609

In re S.C. (2006) 138 Cal.App.4th 396, 408

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis]

Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52

Third Holding:

Cases are not authority for points not considered.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 945, fn. 7

Fourth Holding:

Reversal of the two counts means that the defendant must be resentenced. When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Jones (2022) 79 Cal.App.5th 37, 45-46

Fifth Holding:

One of the defendant’s arguments on a different count is forfeited because it was not raised in the trial court. The parties did not address forfeiture in their appellate briefing, but they had the opportunity to address it, a rule always implicated when an argument is raised for the first time on appeal.

Authority:

People v. Alice (2007) 41 Cal.4th 668, 679 [The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of Government Code section 68081.]

People v. Graham (2024) 102 Cal.App.5th 787, 798, fn. 6.

Sixth Holding:

A failure to object to a jury instruction does not forfeit the issue on appeal if the alleged error concerns elements of the offense, but the forfeited argument here is at least one step removed from an argument about the elements of the crime in question. And the general rule is that an argument not raised in the trial court is forfeited on appeal, including constitutional arguments.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [ruling that an argument under Apprendi v. New Jersey (2000) 530 U.S. 466 was forfeited because it was not raised in the trial court]