Author Archives: Gary McCurdy

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

Chapman v. California (1967) 386 U.S. 18

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

Elements of crime, Jury instructions, Sufficiency of and substantial evidence

Case 000588

Posted on by Gary McCurdy

Error and/or relief

The court erred by instructing the jury that a knife was a deadly weapon as a matter of law.

First Holding:

Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons. While a knife is not an inherently dangerous or deadly instrument as a matter of law, it may assume such characteristics, depending upon the manner in which it was used. A trial court therefore errs by instructing a jury with two theories by which it could find [a knife] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 6, 7

Second Holding:

The Supreme Court has considered the consequences when a court instructs on two theories of guilt, one correct and the other incorrect. A theory is factually inadequate if the theory is incorrect only because the evidence does not support it. If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. Thus, a reviewing court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7

People v. Guiton (1993) 4 Cal.4th 1116, 1130

Third Holding:

In contrast, a theory is legally inadequate if it is incorrect because it is contrary to law. Because the jury is not equipped to detect such an error, a higher standard must be met for the error to be found harmless. Consequently, if a jury is instructed on a legally inadequate theory, then the error is reversible unless it is harmless beyond a reasonable doubt.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7, 13

Fourth Holding:

The court erred by giving instructions that permitted the jury to find that a knife is an inherently deadly or dangerous weapon. The theory was factually inadequate, because the instructions defined inherently deadly and thus equipped the jury to detect the error. We conclude, however, that the error was prejudicial. During closing argument, the prosecutor contended that a knife is an inherently dangerous weapon.

In addition, the verdict form did not ask the jury to find whether the defendant used a deadly or dangerous weapon. It did not refer to the enhancement allegation or even identify the applicable code section, which might have allowed the jury to correlate the verdict form with the relevant written instruction. Instead, the verdict form asked the jury to determine whether the defendant used a knife, without any requirement that the knife be found deadly or dangerous on any theory. The entire verdict must be considered in determining whether alternative theory error was prejudicial.

Authority:

People v. Guiton (1993) 4 Cal.4th 1116, 1130

Fifth Holding:

We review a true finding on a deadly weapon enhancement allegation for sufficiency of the evidence. The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. We determine that there was sufficient evidence to support the enhancement, and thus it may be retried.

Authority:

People v. Alvarez (1996) 14 Cal.4th 155, 224-225

Fines and fees, Retroactivity, Sentencing

Case 000587

Posted on by Gary McCurdy

Error and/or relief

On appeal from a hearing under section 1172.75, the appellate court struck the balance of the restitution fine as it was ordered more than 10 years prior to the resentencing.

First Holding:

Effective January 1, 2025, section 1465.9 was amended and now provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Second Holding:

Respondent asserts the trial court did not impose the restitution fine nor parole revocation fine at the time of resentencing and therefore it must be stricken for that reason. Generally, respondent is correct.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

People v. Frederickson (2020) 8 Cal.5th 963, 1027 [striking a restitution fine from the record and the abstract of judgment where the court failed to orally impose the fine during the sentencing hearing]

People v. Nilsson (2015) 242 Cal.App.4th 1, 34 [resentencing necessarily requires a court to impose a new sentence, including any fines, fees, and assessments]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [the oral pronouncement of judgment controls]

Third Holding:

In this instance, however, the trial court merely reaffirmed the original judgment with the exception of striking the now-invalid prior prison term enhancement. The judgment following the resentencing is not yet final, we conclude appellant is entitled to have the restitution fine stricken. As appellant’s restitution fine was first imposed more than 10 years ago, it is now unenforceable and uncollectible under section 1465.9(d).

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted on another issue Mar. 11, 2026, S295038

In re Estrada (1965) 63 Cal.2d 740, 744–745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

Section 1465.9(d) does not apply to the parole revocation restitution fine under section 1202.45. In Kopp, the court vacated any unpaid portion of the defendant’s restitution fine under section 1465.9(d), but nonetheless remanded the matter because a parole revocation fine is still required and was to be set in the same amount as the restitution fine would have been had the court properly considered the defendant’s ability to pay and stayed.

Further, section 1465.9 makes no mention of the parole revocation restitution fine under section 1202.45. We are not to insert a term that was not included in a statute or omit a term that has been included. Although a parole revocation fine is closely related to a restitution fine in that they must be imposed at the same time and in the same amounts, a parole revocation fine serves a different purpose, i.e., to deter a prisoner from violating parole, to incentivize a prisoner’s rehabilitation while on parole, and to recoup costs if parole is violated. That purpose is still relevant where, as here, an inmate might one day be paroled. No principle or authority supports vacating the parole revocation fine.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 12, 24, 30

People v. Massicot (2002) 97 Cal.App.4th 920, 925

People v. Preston (2015) 239 Cal.App.4th 415, 427, 429

Fifth Holding:

It was unnecessary for the trial court to recalculate the defendant’s credit for time served. The sentence from which this appeal was taken has not yet begun to be served, because it was ordered to run consecutive to the one he is currently serving from another county. Under other circumstances, a court may be required to calculate custody credits on a sentence imposed by another county. The present case presents does not present such a circumstance.

Authority:

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1126 [in a determinate sentence case, sentencing court’s imposition of a consecutive sentence replaced another county’s sentence; the second county became the sentencing court]

Discretion, Standard of review

Case 000586

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in finding the defendant unsuitable for mental health diversion, citing an unreasonable risk of danger to public safety.

First Holding:

The primary goal of section 1001.36 is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. Advances in psychology and neuroscience inform this goal.

Authority:

Sarmiento v. Superior Ct. (2024) 98 Cal.App.5th 882, 898

Second Holding:

Section 1001.36 narrowly defines an unreasonable risk of danger to public safety as requiring an unreasonable risk that the defendant will commit one of several statutorily enumerated violent felonies colloquially known as super strikes.

Authority:

PEN 1001.36(c)(4)

People v. Moine (2021) 62 Cal.App.5th 440, 449

Third Holding:

We review a trial court’s decision on whether to grant section 1001.36 diversion for abuse of discretion. In this context, a court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Fourth Holding:

In concluding that the defendant posed such a danger, the court found she was likely to continue selling fentanyl, that the fentanyl she sold was likely to kill someone, and that she could be prosecuted for such a death on a theory of implied malice murder. According to the court, this established an unreasonable risk that the defendant would commit a super strike—murder—and the court denied diversion.

The court’s reasoning rests on purely speculative factual findings unsupported by any evidence. Speculation is not evidence, less still substantial evidence. The court did not cite any other basis for denying diversion, nor do the People cite an alternative basis for affirming the court’s order. The court abused its discretion in denying diversion on this basis. Accordingly, we reverse.

Authority:

Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180, 1188

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Amelioration, Discretion, Duty of the court, Sentencing

Case 000585

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court declined to consider dismissing a firearm enhancement, citing its desire not to get involved in changing the sentence of the original sentencing court and not to usurp the role of the parole board in assessing when defendant was ready for release. Because these rationales reflect an abdication of the court’s duty to exercise its sentencing discretion, we must reverse and remand for the court to exercise that discretion at a new, full resentencing.

First Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Second Holding:

Where, as here, a defendant was originally sentenced for a prior prison term enhancement that arose from a conviction that was not a sexually violent offense, that defendant is entitled to a full resentencing where that enhancement is to be stricken and where the trial court is to apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 875

Third Holding:

The law regarding the 25 years-to-life firearm enhancement has changed since defendant’s original sentencing hearing in 2004: At that time, a trial court did not have discretion to dismiss that enhancement; since January 1, 2018, trial courts have had the power to dismiss firearm enhancements under section 12022.53 entirely or to substitute a lesser firearm enhancement in their place.

Authority:

PEN 12022.53

People v. Tirado (2022) 12 Cal.5th 688, 695-696

Fourth Holding:

Although we review a trial court’s discretionary sentencing decisions for an abuse of discretion a trial court abuses its discretion when it refuses to exercise that discretion. That is what happened here: What was supposed to be a full resentencing was merely a reaffirmation of a prior sentence and an abdication of discretionary decision-making to others whom the trial court believed were (or had been) better suited to the task. Section 1172.75 requires trial courts to get involved where, as here, the governing law has changed in a way that makes a lower sentence a possibility. What is more, section 1172.75 also enables a trial court to consider postconviction factors, which would be given no weight were a trial court to defer to the original sentence entered before any postconviction conduct comes to pass.

Authority:

PEN 1172.75

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Bigelow (1984) 37 Cal.3d 731, 744

People v. Rogers (2025) 108 Cal.App.5th 340, 361

Fifth Holding:

The presumption of regularity is rebutted when a trial court affirmatively indicates that it is not following the law.

Authority:

People v. Carter (2014) 227 Cal.App.4th 322, 324

People v. Panozo (2021) 59 Cal.App.5th 825, 839 [where the record is not silent, but rather is ‘at the very least ambiguous as to whether the court understood its statutory obligation, remand is appropriate]

Sixth Holding:

Upon remand, the court is to conduct the full resentencing mandated by section 1172.75. At that time, the court should calculate defendant’s actual custody credits from the date of arrest through the date of resentencing.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]