Can there be such a thing as a plethora of daffodils? Nope!
Well, the vote is in. Overwhelmingly (1-0), I have opted to set aside the cases that I had put together disorganizedly but have not yet posted, and I will simply pick up with the cases that I had begun to get blog-ready from the get-go. My previous post (Post 25) ended with Case 000145. Today I start with 000247 through 000253. Not to worry about the break in case numbers. I’ve set the missing 101 aside. Maybe someday, if there’s a spate of zero-victory-days, I can go back and ready them for posting.
I don’t know about you, but I’m not holding my breath.
As of today, I have reviewed and selected for posting just under 480 cases. As you can see, I’m putting up number 000253. Taking into consideration that I’m not likely to deal with the 101 any time soon, I still have around 130 ready to assemble into posts. And they come in five days a week, anywhere from two or three up to a dozen or so a day.
Now, I recognize that most attorneys had a choice between data analysis, mathematics, and the practice of law, and chose the latter. Maybe for good reason. But I can see that you’ll get less sleep tonight if I don’t give you some stats. You can thank me in the morning.
I started collecting unpublished “wins” (remember, it’s win if the court does anything, no matter how slight, that could possible ever benefit a defendant, even if it is as little as issuing an order for the correction of an abstract of judgment or minute order that paints a defendant worse than he or she is) in October 2025, but I didn’t start keeping a list of ALL unpublished opinions until November 17, 2025. From then until February 26, 2026, the Courts of Appeal have posted 2,133 unpublished opinions. Of those, 1,092 had captions “P. v.” It’s a good bet they were all criminal cases. Some others were probably habeas corpus, but I don’t have a ready way to determine whether “In re” titles in the cases were dependency cases, delinquency cases , or habeas cases.
Of those roughly 1,090 “P. v.” cases, I have summarized 275 as “wins.” (Well, probably a little less than 275 were “P. v.,” because I have summarized a few habeas and a few delinquency “In re” cases, but I don’t record the title in my database, so I can’t determine the exact number of P. v. cases. Another good bet is that it is at least 265.)
Since I don’t have to be as precise as the calculations necessary to land a camera on Mars, I think it’s fair to say that roughly a quarter of the unpublished criminal cases have provided my kind of “win” for a defendant.
Now you know. Sleep tight.
Summary of Summaries
The trial court erred by engaging in fact-finding at the prima facie stage of a PC 1172.6 sentencing recall hearing.
Another SB 1437/PC 1172.6 denial at the prima facie stage is reversed.
The court should have instructed on the lesser included offense of battery.
A remand for calculation of all credit for time served, even where the sentence is an indeterminate term.
Where the court, for whatever reason, did not make a finding to indicate that the felony was a violent felony, the abstract of judgment correctly showed that it was therefore not a violent felony, despite a letter from CDCR suggesting the facts showed that it was. By failing to make a finding, it was deemed to be a deliberate act of leniency, and it was error for the trial court to change the abstract of judgment to indicate it was a violent felony, contrary to the actual judgment imposed in light of the presumed act of leniency. [Hey, a favorable shout-out that the abstract correctly represented the actual oral order! While that is likely true in the overwhelming number of cases, we know that errors in abstracts and minute orders are not uncommon.]
Where the trial court clearly intended to impose the minimum restitution but mistakenly set it at $600 for the two counts rather than the actual minimum of $300, the appellate court modified the judgment to reflect the actual minimum restitution fine of $300.
Where the sentence consists of LWOP, or even LWOP and an indeterminate sentence, it is error to impose the parole revocation fine under PC 1402.45.
Case: 000247
The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.
First Holding: If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested. [See] Penal Code section 1172.6(b)(1)(A), (3); People v. Lewis (2021) 11 Cal.5th 952, 962-963.
Second Holding: Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition. [See] People v. Watson (1956) 46 Cal.2d 818; People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing].
Third Holding: A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage. [See] People v. Lewis (2021) 11 Cal.5th 952, 972; People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]; People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act].
Case: 000248
The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.
First Holding: The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal. [See] People v. Brothers (2015) 236 Cal.App.4th 24, 29, and fn. 6 on p. 33.
Second Holding: We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction. [See] People v. Brothers (2015) 236 Cal.App.4th 24, 30.
Third Holding: It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only. [See] Penal Code section 243.4(e)(1); Penal Code section 242; People v. Shockley (2013) 58 Cal.4th 400, 404; People v. Yonko (1987) 196 Cal.App.3d 1005, 1010.
Fourth Holding: Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him. [See] People v. Watson (1956) 46 Cal.2d 818; People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201; People v. Schuller (2023) 15 Cal.5th 237, 260.
Fifth Holding: The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced. [See] People v. Navarro (2007) 40 Cal.4th 668, 681.
Case: 000249
The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.
First Holding: Senate Bill No. 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice. [See] People v. Curiel (2023) 15 Cal.5th 433, 448-449; People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.
Second Holding: If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. [See] PC 1172.6(c) and (d); People v. Lewis (2021) 11 Cal.5th 952, 971.
Third Holding: At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations. [See] People v. Patton (2025) 17 Cal.5th 549, 564, 568.
Fourth Holding: We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous. [See] People v. Ervin (2021) 72 Cal.App.5th 90, 101; People v. Eynon (2021) 68 Cal.App.5th 967, 976.
Fifth Holding: The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity. [See] People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage].
Sixth Holding: In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law. [See] People v. Eynon (2021) 68 Cal.App.5th 967, 977-978; People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory].
Seventh Holding: Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law. [See] People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]; People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer].
Case: 000250
A defendant is entitled to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. The court is directed to recalculate the amount of custody credit he should receive.
First Holding: Section 2900.5 entitles a defendant to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. [See] PC 2900.5; People v. Duff (2010) 50 Cal.4th 787, 793; People v. Herrera (2001) 88 Cal.App.4th 1353, 1365.
Second Holding: A sentence for possession of specified weapons while confined in(or being conveyed to or from) any penal institution is to be served consecutively. [See] PC 4502.
Third Holding: Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed. [See] PC 2900.5.
Case: 000251
The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true. The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.
First Holding: Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries. In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge. [See] In re Candelario (1970) 3 Cal.3d 702.
Second Holding: The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony. [See] In re Candelario (1970) 3 Cal.3d 702; People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]; People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]; People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true].
Third Holding: Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment. [See] People v. Karaman (1992) 4 Cal.4th 335, 344; People v. Howard (1997) 16 Cal.4th 1081, 1089.
Fourth Holding: The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction. [See] People v. Farias (2023) 92 Cal.App.5th 619, 635-636; People v. Codinha (2023) 92 Cal.App.5th 976, 1120 holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]; People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]; People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]; People v. Singleton (2025) 113 Cal.App.5th 783, 797.
Case: 000252
Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.
First Holding: In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). [See] PC 1202.4(b)(1).
Second Holding: [GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.] [See] PC 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]
Case: 000253
Where the sentence is life without the possibility of parole, it was improper to impose a parole revocation fine, and it must be stricken.
Holding: A parole revocation fine may not be imposed for a term of LWOP, as the statute is expressly inapplicable where there is no period of parole. Moreover, our Supreme Court recently recognized that the parole revocation fine statute does not apply where a defendant is given both an LWOP sentence and an indeterminate term. [See] People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Alvarez (2025) 18 Cal.5th 387, 485–486; PC 1202.45.