Daily Archives: November 6, 2026

Appellate Principles, Pleading, Sentencing

Case 001167

Posted on by Gary McCurdy

Error and/or relief

The court erred in enhancing the defendant’s sentence by five years under section 667(a) when that section was not alleged in the information.

First Holding:

As a rule, all sentence enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial. This goes for sentence enhancements as well as substantive offenses: A defendant has the right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes. Accordingly, section 1170.1(e) requires more than simply alleging the facts supporting an enhancement somewhere in the information. The pleading must provide the defendant with fair notice of the potential sentence.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953, 956

Second Holding:

The information alleged that the defendant had been convicted of a serious and/or violent felony as defined in section 667(d) and section 1170.12(b), and was thus subject to sentencing pursuant to the provisions of Penal Code section 667(b)-(j) and Penal Code section 1170.12 (the Three Strikes Law statutes), and alleged the prior serious felony conviction the statutes pertained to.

Alleging the fact of the prior conviction for purposes of the strike allegation was insufficient to provide notice that the defendant also faced an additional five-year sentence under section 667, subdivision (a)(1).

Authority:

People v. Nguyen (2017) 18 Cal.App.5th 260

Third Holding:

In Nguyen, the information similarly did not allege a section 667(a)(1) enhancement, but alleged the fact of the conviction underlying that enhancement for purposes of the Three Strikes law.

The Court of Appeal held that the trial court erred in imposing the prior serious felony enhancement because under section 1170.1(e), an enhancement must be alleged in the accusatory pleading and the information did not do so. The court reasoned the defendant lacked notice of the potential longer sentence because the factual predicate for the enhancement was alleged specifically for the Three Strikes allegations.

Significantly, every prior serious felony conviction is necessarily also a strike prior. Charging language that expressly states that a fact is alleged to invoke one particular statute does not adequately inform the accused that the People will use it to invoke a different statute. Accordingly, when, as here, the People allege a prior serious felony conviction, and when they cite the three strikes law but do not cite the prior serious felony conviction statute, we can only conclude that they have made a discretionary charging decision.

Authority:

People v. Nguyen (2017) 18 Cal.App.5th 260, 263, 266-267

Fourth Holding:

Nguyen was favorably cited by the Supreme Court. In Anderson, in the context of uncharged section 12022.53 enhancements, the Supreme Court explained that fair notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed, and cited Nguyen. In Anderson, the information alleged the enhancement as to some counts but not others. The court concluded that by alleging the enhancement as to some counts but not others, the prosecution indicated it was exercising its discretion not to impose the enhancement as to the uncharged counts.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 956-967

Fifth Holding:

The cases relied on by the prosecution did not involve instances where the 667(a) enhancement was not alleged in the information. Cases are not authority for propositions not considered.

Authority:

Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252

People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10

Sixth Holding:

As a general rule, a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal. It is well established that a lack of notice can be forfeited by failure to object, even when it is claimed that it violated due process.

Anderson subsequently clarified that while we may consider a forfeited claim of error regarding an unpled enhancement, the unauthorized sentence doctrine does not provide the basis for our review. The court explained that to impose unpleaded sentence enhancements is an error of a different variety.

It held that despite the defendant having forfeited the argument as to the unpled enhancement, the court could address it on appeal because the error was clear and obvious and affected the defendant’s substantial rights by depriving him of timely notice of the potential sentence he faced. The court observed that there was no notice of the enhancement midtrial, and the prosecution did not indicate an intent to impose the enhancements until the day of sentencing, such that the error was one that goes to the overall fairness of the proceeding.

We similarly conclude that we may review the defendant’s claim for the first time on appeal. The error was clear and obvious under Nguyen, Anderson, and section 1170.1(e). The trial court imposed a five-year enhancement that was never alleged in the charging document, as required by statute.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 961-963

People v. Nguyen (2017) 18 Cal.App.5th 260, 263, 272

People v. Houston (2012) 54 Cal.4th 1186, 1227

Seventh Holding:

The error was not harmless. Anderson pointed out that the purpose of a statutory pleading requirement is not simply to ensure the defendant has notice of the potential sentence on the day of sentencing. It is meant to give sufficient notice to permit the defense to make informed decisions about the case, including whether to plead guilty, how to allocate investigatory resources, and what strategy to deploy at trial.

The prosecution did not clarify its intent to seek sentencing based on the unalleged enhancements until the sentencing hearing. At that point, the damage was done—it was by then too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy.

We conclude the imposition of the five-year prior serious felony enhancement was not harmless. We remand for a full resentencing so the trial court may exercise its discretion considering these changed circumstances.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964

In re Vaquera (2024) 15 Cal.5th 706, 726 [following Anderson and finding lack of notice of sentence not harmless because it was too late for defendant to make informed decisions as to plea and trial strategy]

Amelioration, Elements of crime, Fines and fees, Sentencing

Case 001166

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, it was error for the court to not determine whether the gang-related enhancements found true more than a decade earlier must be vacated in light of amendments to the statute under AB 333.

First Holding:

Effective January 2022, AB 333 (2021–2022 Reg. Sess.) made significant changes to the elements of the section 186.22 gang enhancement and those changes apply to all non-final judgments. When the defendant was resentenced pursuant to section 1172.75, he was entitled to the benefits of AB 333 because his judgment became nonfinal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

Second Holding:

The evidence at trial was insufficient to satisfy the new narrower requirements of AB 333, that is, the evidence failed to show that the gang members collectively engaged in a pattern of criminal gang activity or that the predicate offense commonly benefited the gang in ways that were more than reputational. The testimony therefore fell short of establishing the organizational nexus between the predicate offenses and the gang and its goals, as required by the current version of section 186.22.

As a result, we vacate the true findings on the gang enhancement and remand the matter for resentencing, and to permit the People to retry the gang enhancement if they choose to do so.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749, 752, 762

People v Fletcher (2025) 18 Cal.5th 576, 583

People v. Lamb (2024) 16 Cal.5th 400, 456

Third Holding:

The restitution fine imposed more than 10 years earlier must be vacated. Effective January 1, 2025, a restition fine imposed under section 1202.4 is unenforceable after ten years and any portion of a judgment imposing that fine is vacated at that time. The unpaid balance of the judgment is vacated.

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626–627

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953

Fourth Holding:

The trial court erred in its calculation of credit for time served. The trial court shall transmit a corrected abstract of judgment to the California Department of Corrections and Rehabilitation reflecting the correct actual custody credit calculation.

(Gary note: The court did not cite authority for its order for correction of credit for time served. I have set forth some of the cause the court could have cited.)

Authority:

PEN 2900.1

PEN 2900.5

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

People v. King (1992) 3 Cal.App.4th 882, 886

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

People v. Crenshaw (2025) 116 Cal.App.5th 1169, 1181

People v. Buckhalter (2001) 26 Cal.4th 20, 30

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Appellate Principles, Racial Justice Act, Statutory interpretation

Case 001165

Posted on by Gary McCurdy

Error and/or relief

The defendant has demonstrated by a preponderance of evidence that the prosecutor used racially discriminatory language, including language that, to an objective observer, compares the defendant to an animal, within the meaning of the Racial Justice Act (RJA).

The judgment is reversed.The defendant’s conviction and sentence are vacated and are legally invalid. The matter is remanded to the trial court for further proceedings consistent with Penal Code section 745(a).

First Holding:

Effective January 1, 2021, the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. An RJA violation may be established if the defendant proves by a preponderance of the evidence that during the defendant’s trial, in court and during the proceedings, an attorney in the case used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

Racially discriminatory language includes language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, language that compares the defendant to an animal. Thus, the RJA prohibits the use of racially discriminatory language that directly appeals to bias and facially neutral language that implicitly appeals to racial bias. To identify language that falls in the latter category, in particular, requires a nuanced inquiry that is sensitive to context.

Authority:

PEN 745

People v. Bankston (2026) 19 Cal.5th 786, 856-857

Second Holding:

It is undisputed that the RJA took effect before jury selection, trial, and entry of judgment here. At no point in the trial proceedings, however, did the defendant object to the statements he now challenges from the prosecutor’s voir dire, opening statement, and closing argument, despite raising the RJA at other points during the trial. Many appellate courts have found that a section 745 claim, like any other appellate claim, is subject to the general appellate rules of preservation and forfeiture of claims that could have been but were not made in the trial court.

Authority:

People v. Lashon (2024) 98 Cal.App.5th 804, 812

People v. Quintero (2024) 107 Cal.App.5th 1060, 1074

People v. Corbi (2024) 106 Cal.App.5th 25, 39

People v. Singh (2024) 103 Cal.App.5th 76, 114–115

People v. Wagstaff (2025) 111 Cal.App.5th 1207, 1219

People v. Gomez (2026) 118 Cal.App.5th 384, 391–392

Third Holding:

Nothing in the chaptered amendments to section 745 enacted by AB 1071 (2025-2026 Reg. Sess.) requires a reviewing court to address record-based RJA claims on direct appeal. The plain language of the statute establishes what was intended by the Legislature, and when the statutory language is clear, there is no need to resort to statutory construction.

Although early versions of AB 1071 introduced and ultimately passed by the Legislature and enacted into law contained language that record-based claims on appeal shall not be subject to waiver, that language was eliminated in the legislative process. We cannot overlook this deletion in determining the legislative intent. A review of the legislative history reflects that the Legislature intended to leave courts free to apply the forfeiture doctrine to unpreserved RJA claims.

Authority:

People v. Statum (2002) 28 Cal.4th 682, 690

People v. The North River Ins. Co. (2025) 18 Cal.5th 1, 19, fn. 4 [considering amendments to bill as aid in determining legislative intent]

Fourth Holding:

That RJA claims are generally subject to forfeiture, however, does not end our analysis. Neither forfeiture nor application of the forfeiture rule is automatic. Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.

The purpose of a timely objection to preserve claims of error is to permit the trial court to address an alleged issue and to cure any curable defects. Absent certain exceptions, appellate courts do not consider claims of error that could have been raised below because it is typically both unfair and inefficient to permit a claim which could have been properly litigated and addressed in the trial court.

But this case presents a unique scenario not typically present when a litigant fails to preserve a claim: The trial court was alerted that the prosecutor’s comments may have implicated racial bias during voir dire but swiftly rejected that interpretation.

(Gary note: The facts on which the court relied are not of any value to this summary, as they were case specific. The prosecutor compared the defendant to animals, and in more than simply a passing or light reference, and the court failed to sustain the defense objection.)

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Partida (2005) 37 Cal.4th 428, 434

People v. Vera (1997) 15 Cal.4th 269, 275–276, overruled on a different ground as stated in People v. French (2008) 43 Cal.4th 36, 47, fn. 3

People v. Saunders (1993) 5 Cal.4th 580, 590

People v. Scott (1994) 9 Cal.4th 331, 353

People v. Perez (2020) 9 Cal.5th 1, 7–8

Fifth Holding:

On this unique record, where we see no likelihood that counsel’s reiteration of the objection by the prospective juror* would have produced a different result or finding, or that objections to predator/prey references—connoting nonhuman predators without specifically identifying any—would have been any more fruitful than prospective juror No. 50’s objection to the prosecutor’s direct reference to jurors judging a pit bull, we will exercise our discretion to reach the merits of defendant’s RJA claims to forestall his ineffective assistance of counsel claim.

(*Gary note: a prospective juror actually raised the objection to the prosecution’s analogy during voir dire, and the trial court rejected it. On the merits of the RJA claim, the court analyzed details of the statement made during the trial by the prosecution, the defense, and the court, and concluded that the defendant demonstrated by a preponderance of the evidence that the prosecution used racially discriminatory language during voir dire and closing arguments in violation of section 745(a)(2). That analysis has no value outside the unpublished opinion other than to the defendant, so I have not included it.)

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 400

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6,

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326

Sixth Holding:

Finding a violation of the RJA, as judgment has already been entered, we vacate the defendants’ convictions and sentences and remand the matter to the trial court for determination of a remedy, potentially including retrial. The RJA expressly requires that after a judgment has been entered, if a violation of the RJA has been found, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a). In the course of our review of the record, we conclude that there was sufficient evidence to support the verdict within the meaning of appellate review, and thus retrial is not barred.

Authority:

PEN 745(e)(2)(A)

People v. Superior Court (Woodward) (2024) 100 Cal.App.5th 679, 697 [a determination of legal insufficiency of the evidence serves as a constitutional bar to retrial for that offense]

Appellate Principles, Discretion, Gary Musings, Sentencing

Case 001164

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on one of two counts (counts 1 and 5) under section 654 because the course of conduct underlying both offenses reflected a single intent and objective. Because the record clearly indicates the trial court would stay the sentence on count 5, not count 1, the opinion modifies the judgment on appeal and stays the sentence on count 5.

First Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. The statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. Therefore, whether a defendant may be subjected to multiple punishment[s] under section 654 requires a two-step inquiry.

First, the court considers whether the offenses were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if the court concludes that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects that the defendant harbored a single intent and objective or multiple intents and objectives.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. If, on the other hand, the defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, the defendant may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Even if a course of conduct is directed to one objective, we may still find that the course of conduct gives rise to multiple punishments if the acts are temporally separated in such a way as to afford the defendant the opportunity to reflect and to renew their intent before committing the next offense.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Correa (2012) 54 Cal.4th 331, 336

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

People v. Gaio (2000) 81 Cal.App.4th 919, 935

Second Holding:

We review a ruling on whether section 654 applies to a sentence for substantial evidence. In the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it. We will uphold the trial court’s implicit or explicit section 654 finding if substantial evidence supports it.

(Gary note: The court then analyzed the facts specific to this case and determined that section 654 applied, as there was insufficient evidence to support a finding of sufficient separation of intent and objective for the two acts.)

Authority:

People v. Tom (2018) 22 Cal.App.5th 250, 260

People v. Mejia (2017) 9 Cal.App.5th 1036, 1045

Third Holding:

We now consider whether remand is required to allow the trial court to exercise its discretion by deciding which sentence to stay. Where a trial court erroneously fails to stay a term under Penal Code section 654, appellate courts usually remand unless remand would be futile because the record clearly indicates which sentence the court trial would stay. Given our conclusion the trial court would stay the sentence on count 5, we exercise our authority to modify the judgment on appeal and stay the term on count 5 instead of remanding the matter.

(Gary note: The court analyzed the comments made by the sentencing court and determined that the trial court clearly would have imposed and executed judgment on count 1, a felony that carried the greater sentence, and stayed execution of punishment on count 5, a misdemeanor.)

(Gary note again in the form of musings: Section 654 specifically grants the trial court to authority to choose on which of the two counts sentence is to be imposed and executed. As I have said in other summaries, prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)

Authority:

PEN 1260

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Abstracts and Minutes, Fines and fees, Sentencing

Case 001163

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it mistakenly reflects a $300 restitution fine under section 1202.4 that was not orally imposed by the trial court. The $300 parole revocation fine imposed by the court under section 1202.45 should be stricken.

First Holding:

The parties stipulated that defendant lacked the ability to pay the $300 restitution fine under section 1202.4, and the court did not impose that fine. The restitution fine reflected in the abstract of judgment should therefore be deleted.

(Gary note: The court did not cite any authority for its order that the abstract of judgment be modified. I have set forth some of the cases that court could have cited.)

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

Second Holding:

The trial court should not have imposed the parole revocation fine under section 1202.45. Under that section, when a court imposes a restitution fine under section 1202.4, and the sentence includes a period of parole, a parole revocation fine must also be imposed and suspended in the same amount as the section 1202.4 restitution fine. (.) Here, as noted, the court did not impose a restitution fine in any amount and therefore it should not have imposed the parole revocation fine under section 1202.45.

Authority:

PEN 1202.45

People v. Smith (2001) 24 Cal.4th 849, 852