Author Archives: Gary McCurdy

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case 001069

Posted on by Gary McCurdy

Error and/or relief

The court erred by engaging in factfinding at the prima facie stage of the proceedings on the defendant motion to vacate his manslaughter conviction under section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.

SB 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to seek retroactive relief under the law as amended.

SB 775 (2021-2022 Reg. Sess.) later expanded the statute to apply to attempted murder under the natural and probable consequence doctrine and manslaughter.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

Second Holding:

Section 1172.6(a) applies to those convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime or a person convicted of attempted murder based on the natural and probable consequences doctrine. To be eligible for relief, the petitioner must make a prima facie showing that he could not presently be convicted of murder or attempted murder under changes to these theories of murder liability made effective on January 1, 2019, by SB 1437.

If the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing where the prosecution bears the burden of proving beyond a reasonable doubt that the defendant could still be convicted of murder under current law.

Authority:

PEN 1172.6

Third Holding:

At the prima facie stage, the court may deny a resentencing petition only if the petitioner is ineligible for relief as a matter of law. That is, the petition and the record of conviction must establish conclusively that the defendant is ineligible for relief. This is a pure question of law we review de novo.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

While the trial court may look to the record of conviction after appointing defense counsel, the prima facie inquiry is limited. The court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if those factual allegations were proved. If so, the court must issue an order to show cause.

At that early stage, the trial court should not reject the petitioner’s factual allegations on credibility grounds or engage in factfinding that involves the weighing of evidence or the exercise of discretion. But if the record contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

(Gary note: For the most part, the balance of the opinion discusses facts specific to this case to show that the preliminary examination, the defendant’s admission that he personally used a firearm, and that he admitted that manslaughter is a serious felony did not establish that the defendant was the actual killer. For the trial court to have reached a conclusion that the defendant was the actual killer, it would have had to engage in factfinding that is not permitted at the prima facie stage. The court should have issued an order to show cause and held and evidentiary hearing, which is what the appellate court remanded the matter for.)

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Jones (2005) 30 Cal. 4th 1084, 1120 [the finding of personal use does not in itself prove defendant was the actual killer]

Appellate Principles, Juveniles, Sufficiency of and substantial evidence

Case 001068

Posted on by Gary McCurdy

Error and/or relief:

The evidence was insufficient to support a finding that the minor was the driver of the vehicle.

(Gary note: This is typical of fact-driven results, where facts unique to a case in an unpublished opinion, but I think it’s valuable to note that the court viewed the available video footage itself to conclude that the minor was actually in the back seat of the vehicle at the time of the accident, and at the very least, the evidence was insufficient even under the deferential standards to support a finding beyond a reasonable doubt.

(In this case, getting the exhibits to the appellate court for viewing clinched the win for the minor. Without that, the appellate court would have had to rely on the law enforcement testimony, and it likely would have found that, from its role as an appellate court (i.e., not a determiner of the facts, which is the role of the trial court), the juvenile court jurisdiction would have to be sustained (i.e., in “adult court” terms, the conviction would have to be affirmed).

First Holding:

To evaluate the minor’s claim that the evidence was insufficient, we review the record for substantial evidence to support the juvenile court’s jurisdictional findings—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the minor committed the crimes.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

In re Z.A. (2012) 207 Cal.App.4th 1401, 1424

In re George T. (2004) 33 Cal.4th 620, 631

Second Holding:

In determining whether findings are supported by substantial evidence, we resolve neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

(Gary note: As I indicated above, the trial court examined the dashcam recording and determined that it was impossible for the minor to have been driving the vehicle at the time of the accident, despite the testimony of two law enforcement officers who had reached a different conclusion from their own review of the video. The balance of the opinion pertains to the appellate court’s observations of the scenes depicted in the video and offers no additional legal information pertinent to these summaries. The court simply found the evidence insufficient to support a finding beyond a reasonable doubt that the minor was the driver.)

Authority:

People v. Demolle (2026) 19 Cal.5th 1117, 1176

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 001067

Posted on by Gary McCurdy

Error and/or relief:

There is not sufficient nexus with the current offense or with future criminality to justify the imposition of the gang conditions of probation. In addition, payment for counseling cannot be ordered as a condition of probation. We direct the trial court to strike the gang conditions and to modify the counseling provision to clarify that payment of costs is not a condition of probation.

First Holding:

When a trial court grants probation, section 1203.1(j) states that the court may impose and require any or all of the terms of imprisonment, fine, and conditions specified in that section, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.

Accordingly, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Second Holding:

There are limits to the conditions a court may impose. Under Lent, a condition of probation will be invalid if it:

(1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not in itself criminal, and

(3) requires or forbids conduct which is not reasonably related to future criminality.

This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

Third Holding:

We review the trial court’s decision to impose a given probation condition for an abuse of discretion, considering the facts of the underlying offense and the defendant’s background. (Olguin, supra, 45 Cal.4th at p. 379; People v. Patillo (1992) 4 Cal.App.4th 1576, 1579.) We review constitutional challenges to specific conditions of probation—including assertions that a condition improperly delegates the trial court’s authority—de novo.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patillo (1992) 4 Cal.App.4th 1576, 1579

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

The defendant complains that the court should not have reviewed his juvenile record, as juvenile proceedings are confidential.

In general, juvenile court records are confidential. Welfare and Institutions Code section 827 governs the release of juvenile court records. It enumerates a list of persons who may inspect a juvenile case file without a court order, which includes, among others, court personnel, the district attorney, a city attorney, or city prosecutor authorized to prosecute criminal or juvenile cases under state law, attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor, and any other person who may be designated by court order of the judge or the juvenile court upon filing a petition.

Authority:

WIC 827

City of Eureka v. Superior Court (2016) 1 Cal.App.5th 755, 761

Fifth Holding:

Welfare and Institutions Code section 828(a)(2) states that a court shall consider any information relating to the taking of a minor into custody, if the information is not contained in a record that has been sealed, for purposes of determining whether adjudications of commission of crimes as a juvenile warrant a finding that there are circumstances in aggravation pursuant to Section 1170 of the Penal Code or to deny probation.

The defendant’s juvenile record has not been sealed. Thus, court personnel, the prosecutor, and the probation department were permitted to inspect the records without court order. Moreover, the court was permitted to consider information related to the taking of Reeves into custody for the purpose of determining whether to grant or deny probation.

Authority:

WIC(a)(2)

Sixth Holding:

Probation conditions need not relate directly to the underlying conviction, and may, instead, be reasonably related to future criminality. But here we cannot conclude that the gang conditions are reasonably related to future criminality. As discussed, even if appropriately considered, the defendant’s juvenile record is 10 years old, and in the intervening 10 years, there is no indication that the defendant has engaged in any criminal activity related to gangs.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

Seventh Holding:

Courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Yet Lent’s requirement that a probation condition must be reasonably related to future criminality contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. Thus, not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.

Courts are not authorized to impose “conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant’s current or prior offenses or any factor suggesting a risk of future criminal conduct. Accordingly, we conclude that the gang conditions are not reasonable under Lent and must be stricken.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

People v. Brandão (2012) 210 Cal.App.4th 568, 574, 577

Eighth Holding:

The trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation.

Accordingly, we will direct the trial court to modify the condition with this clarification.

Authority:

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321

Ninth Holding:

The defendant’s remaining arguments about the propriety of the order directing that all costs are to be borne by the defendant are forfeited for lack of objection at the time they were ordered.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 858–859 [defendant waived arguments regarding ability to pay probation costs by failing to raise them in the trial court]

Plea bargains, Probation Parole PRCS, Sentencing

Case 001066

Posted on by Gary McCurdy

Error and/or relief

The four-year term of probation is stricken and modified to reflect the agreed-upon three-year term.

Holding:

The defendant entered into a plea bargain in which he would be granted probation for a period of three years. The probation officer’s report spelled out recommended terms and conditions of probation, but recommended that probation be for four years. The court sentenced the defendant to a term in state prison, suspended execution of sentence, and placed the defendant on probation for four years. Neither the court nor any party present noted, explained, or challenged on the record the imposition of the four-year probationary term.

The Attorney General agrees that the court erroneously violated the terms of the plea agreement by placing the defendant on probation for a period longer than the agreed-upon three years and further agrees that the defendant’s challenge to the court’s violation of the plea agreement is not waived, and thus does not address the defendant’s alterative claim of ineffective assistance of counsel.

The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances. The four-year term of probation is stricken and modified to reflect the agreed-upon three-year term.

Authority:

People v. Mancheno (1982) 32 Cal.3d 855, 860–861

Discretion, Elements of crime, Sentencing

Case 001065

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). Remanded for resentencing.

First Holding:

The court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. Section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion.

Authority:

PEN 654

Second Holding:

The enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7(g).

The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings.

Authority:

PEN 12022.7(g)

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001064

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).

First Holding:

SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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 amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 189(e)

Third Holding:

SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.

At the prima facie inquiry stage, 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.

If so, the court must issue an order to show cause. However, 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. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Sixth Holding:

If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678, 681-686

Eighth Holding:

The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.

Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 683

Abstracts and Minutes, Duty of the court, Plea bargains, Sentencing

Case 001063

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term. As we are remanding for a full resentencing, the parties may address their issues in the trial court with the accuracy of the abstract of judgment.

First Holding:

Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause.

Courts have recognized two exceptions to this certificate requirement. A certificate is not required for: (1) issues involving a search and seizure, the validity of which was contested under section 1538.5, and (2) issues regarding proceedings held after the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Regarding this latter category, the the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 781-782, 785

Second Holding:

Where a defendant has agreed to a specified sentence in return for his or her plea, the defendant must obtain a certificate of probable cause to challenge the trial court’s imposition of that exact sentence on appeal.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 73, 78 [one who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment]

People v. Hester (2000) 22 Cal.4th 290, 295 [defendants are estopped from complaining of sentences to which they agreed]

Third Holding:

But where a defendant negotiates a plea term which provides for a maximum sentence, rather than a specified sentence, which necessarily contemplates further adversary proceedings in which the trial court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain, a certificate of probable cause is not required because, in substance, the defendant’s appeal of the selected sentence is not an attack upon the plea itself.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 785

Fourth Holding:

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term.

The defendant was convicted of burglary by taking the firearm and then of possessing the firearm after she took it. Under these circumstances, there is a course of conduct pursuant to one criminal objective—to possess the firearm by stealing it from the hotel room—and based on that defendant cannot be punished for both offenses under section 654.

Authority:

PEN 654

People v. Atencio (2012) 208 Cal.App.4th 1239, 1239 [sec. 654 precluded punishment for both grand theft of a firearm and being a felon in possession of the same firearm]

People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [recognizing § 654 has been held to preclude punishment for both burglary and theft where the burglary is based on an entry with intent to commit that theft]

Fifth Holding:

Section 654 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. At its simplest, section 654 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. 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. Previously, trial courts were required to impose the longest possible term when section 654 applied. In January 2022, the statute was amended to provide courts with discretion to select either the greater or the lesser term and stay execution of the remaining term.

(Gary note, of marginal historical interest at best–noted also in my summary of case 000855: 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. Now you know.)

Authority:

PEN 654(a)

People v. Atencio (2012) 208 Cal.App.4th 1239, 1243

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Sixth Holding:

A sentence in violation of section 654 is an unauthorized sentence that generally may be corrected on appeal without an objection by the defendant in the trial court. This general rule, however, is subject to an exception. Where a defendant has pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The exception does not preclude defendant from raising section 654 on appeal where the plea does not have the defendant agreeing to a specific term.

Authority:

Cal. Rules of Court, rule 4.412(b) [By agreeing to a specified term in prison personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record]

People v. Hester (2000) 22 Cal.4th 290, 295

Seventh Holding:

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. Upon remand, the trial court may revisit all of its sentencing choices in formulating an aggregate term, and must impose a sentence for each of defendant’s convictions.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [as commonly applied, the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Eighth Holding:

Both parties agree that the abstract of judgment contains errors. They do not necessarily agree on the errors. Because we are remanding the case for a full resentencing hearing, which will necessitate a new abstract of judgment, we need not address the parties’ contentions regarding alleged errors in the current abstract. The parties may address any arguments regarding the correct amount of the fees and fines to the trial court during the resentencing hearing.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court’s oral pronouncement of judgment]

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]