Author Archives: Gary McCurdy

Duty of the court, Fines and fees, Juveniles, Retroactivity

Case 000861

Posted on by Gary McCurdy

Error and/or relief

The juvenile court did not declare on the record that either of the minor’s two aggravated assault offenses was a felony or a misdemeanor, as required by Welfare and Institutions Code section 702

Section 730.6 requires that the restitution fines imposed must be stricken.

The precommitment credits must be corrected.

First Holding:

Section 702 provides, in part, that when a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Section 702 requires the juvenile court to declare on the record at a hearing ‘before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Second Holding:

A section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor. The key issue under this standard is whether the juvenile court was aware of its discretion under section 702.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 712, 717

Third Holding:

This section 702 error was not harmless. Signed minute orders in the two assault cases stated, “Pursuant to Juvenile Court Rule 5.795(a), the court finds the offense to be a Felony as to count 1.”

This language tracks recommendations in a memorandum probation filed for disposition. However, rule 5.795(a) states that for any wobbler, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony.

The court’s failure to comply with the very rule cited undermines any inference that it was aware of its discretion.

Authority:

Cal. Rules of Court, rule 5.795(a)

Fourth Holding:

The juvenile court imposed three $200 restitution fines. Effective January 1, 2025, AB 1186 (2023-2024 Reg. Sess.) amended section 730.6 to remove the requirement that a minor pay a restitution fine.  The relevant portion of the statute now provides: “The court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602.”

Appellant is entitled to the ameliorative benefit of this amendment.

Authority:

WIC 730.6(a)(2)

In re Estrada (1965) 63 Cal.2d 740, 745-746

Fifth Holding:

The court erred in calculating the credit for time served, awarding the minor less than half the more than 450 days the minor was entitled to. A minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing.

When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions the court must also aggregate the predisposition custody credits attributable to those multiple petitions.

Authority:

In re A.M. (2014) 225 Cal.App.4th 1075, 1085-1086

Sixth Holding:

Section 628.2(c) provides that a minor shall be entitled to have one day credited against the minor’s maximum term of confinement for each day, or fraction thereof, that the minor serves on electronic monitoring. The provision of custody credits pursuant to this subdivision shall apply to custody credits earned beginning January 1, 2023.

Because the minor was on electronic monitoring after January 1, 2023, he is entitled to credits for that time.

Authority:

WIC 628.2(c)

Discretion, Juveniles, Standard of review

Case 000860

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s transfer order and remand for a new hearing and ruling on the district attorney’s transfer motion.

First Holding:

The ultimate question for the juvenile court in a transfer petition is whether a minor is amenable to rehabilitation before the juvenile court’s jurisdiction expires. To order a minor’s transfer to a court of criminal jurisdiction, the juvenile court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

Cal. Rules of Court, rule 5.770(a), (b)

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re E.P. (2023) 89 Cal.App.5th 409, 416

Second Holding:

In making that determination, the juvenile court must consider five specific criteria: (1) the degree of criminal sophistication exhibited by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) the minor’s previous delinquent history; (4) success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Welfare and Institutions Code section 707(a)(3) also sets forth a nonexhaustive list of relevant factors for the juvenile court to consider with respect to each of the five criteria.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

Third Holding:

The allegation that a minor committed a serious offense, including murder, does not automatically require a finding of unfitness. Rather, in evaluating this criterion, a juvenile court may rely on evidence that, while not justifying or excusing the crime, tends to lessen its magnitude.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 189

Fourth Holding:

A juvenile court can retain jurisdiction over a minor as described in section 602 for the offense of murder until he or she attains 25 years of age, or upon the expiration of a two-year period of control, whichever occurs later.

In determining whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, ‘the juvenile court shall give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature.

Expert witnesses may testify on the issue of the availability of treatment programs in the juvenile court system and the amenability of the minor to those programs.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 213

Fifth Holding:

A minor’s amenability to rehabilitation is the central and dispositive question in proceedings under section 707, and the juvenile court’s analysis of the section 707 criteria must be focused through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 161–162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288, superseded by statute on other grounds as stated in In re J.M. (2024) 103 Cal.App.5th 745, 751–753

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The lower court’s findings of fact are reviewed for substantial evidence, its conclusions of law de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

The court’s ultimate finding that the minor is not amenable to rehabilitation while under its jurisdiction is also reviewed for substantial evidence. In conducting substantial evidence review, we draw all reasonable inferences in support of the court’s findings.

Moreover, a trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. Thai (2023) 90 Cal.App.5th 427, 433

Seventh Holding:

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

The clear and convincing evidence standard requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160–161

Eighth Holding:

The court’s reliance on uncertainty born out of the district attorney’s limited proof about why the minor would not accept or respond to the available treatment that the probation department believed would prepare the minor for re-entry into the community resulted in an improper shift of the burden from the district attorney to show the minor’s unamenability to the minor to show his amenability to rehabilitation.

This shift amounts to an abuse of discretion based on the application of an incorrect legal standard. Given that the juvenile court improperly applied the burden of proof in deciding that the minor is not amenable to rehabilitation while under the court’s jurisdiction, we agree with the minor that the court’s order granting the transfer motion must be reversed and the matter remanded for a new transfer hearing.

Authority:

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 722 [holding there was an abuse of discretion where there was no evidence that demonstrated existing programs were unlikely to result in the minor’s rehabilitation, why they were unlikely to work in this case, or that they would take more than three years to accomplish the task of rehabilitating minor]

People v. Centeno (2014) 60 Cal.4th 659, 673 [The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own]

Amelioration, Duty of counsel, Effective assistance of counsel, Elements of crime, Retroactivity

Case 000859

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted on the basis of appellate ineffective assistance of counsel in a prior appeal. The matter is remanded to the trial court with directions to vacate petitioner’s gang convictions and enhancements, to determine whether the prosecution will elect retrial, to conduct a retrial if so elected, and to fully resentence petitioner.

First Holding:

The defendant was convicted of several crimes, including substantive crimes and enhancements related to criminal gang activity. While the matter was pending on appeal in an earlier appeal, AB 333 amended section 186.22.

Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

AB 333 requires that predicate offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.

In addition, the currently charged offense cannot be used as a predicate offense under the amendments. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada.

Authority:

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

People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

To establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant.

Authority:

People v. Lepere (2023) 91 Cal.App.5th 727, 738

Third Holding:

The prosecution’s expert witness testified that he could not conclude that certain conduct was for the benefit of the gang. The evidence adduced at trial was therefore insufficient to qualify the crime as a predicate offense under AB 333.

Because a criminal street gang was not established under the subsequent requirements of AB 333, the gang convictions and enhancements would have been vacated if properly challenged on direct appeal.

Appellate counsel’s failure to raise the issue was therefore prejudicial to petitioner. Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.

Authority:

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

Fifth Amendment, Standard of review

Case 000858

Posted on by Gary McCurdy

Error and/or relief

We hold that the officers’ un-Mirandized questioning of the defendant was a custodial interrogation and reverse the judgment.

First Holding:

When reviewing issues under Miranda, we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was custodial. Where, as here, an interview is recorded, the facts surrounding the admission are undisputed and subject to our independent review.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161

People v. Torres (2018) 25 Cal.App.5th 162, 172

Second Holding:

To give force to the Constitution’s Fifth Amendment protection against compelled self-incrimination, a custodial interrogation must be preceded by Miranda warnings and the suspect’s voluntary, knowing, and intelligent waiver of Miranda rights.

Persons in custody thus must be warned that they have the right to remain silent, any statement made may be used as evidence against them, and they have the right to an attorney.

For Miranda purposes, interrogation means express questioning or words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Authority:

Florida v. Powell (2010) 559 U.S. 50, 59

People v. Elizalde (2015) 61 Cal.4th 523, 530–531

Miranda v. Arizona (1966) 384 U.S. 436, 244

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Third Holding:

The protections provided by Miranda apply only to custodial interrogations. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Volunteered statements, for instance, that were not made in response to police questioning are not the product of an interrogation and thus not inadmissible under Miranda even when the statements were made while in custody.

Where a defendant seeks to exclude statements made in the absence of a Miranda advisement, they must therefore establish both that the police questioning was an interrogation and that it occurred while the individual was in custody.

Authority:

People v. Zapata (2026) 118 Cal.App.5th 529, 538

Rhode Island v. Innis (1980) 446 U.S. 291, 301

People v. Mickey (1991) 54 Cal.3d 612, 648

Fourth Holding:

A custodial interrogation occurs when a reasonable person in the defendant’s position would feel that their freedom has been deprived in any significant way; for example, a formal arrest or a restraint of movement of the degree associated with formal arrest.

When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood their situation. All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present.

Whether a person is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.

Authority:

California v. Beheler (1983) 463 U.S. 1121, 1125

People v. Caro (2019) 7 Cal.5th 463, 491

People v. Moore (2011) 51 Cal.4th 386, 395

People v. Torres (2018) 25 Cal.App.5th 162, 172

Fifth Holding:

When the court considers whether an individual was in custody during their questioning, it looks at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. The courts have articulated a number of non-exhaustive factors to consider when conducting this analysis.

The relevant factors include: (1) whether contact was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; (2) whether the express purpose of the interview was to question the person as a witness or a suspect; (3) location of the interview; (4) whether police informed the person they were under arrest or in custody; (5) whether they informed the person they were free to terminate the interview and leave at any time; (6) whether there were restrictions on the person’s freedom of movement during the interview; (7) length of the interrogation; (8) how many police officers participated; (9) whether they dominated and controlled the course of the interrogation; (10) whether they manifested a belief that the person was culpable and they had evidence to prove it; (11) whether the police were aggressive, confrontational, and/or accusatory; (12) whether the police used interrogation techniques to pressure the suspect; and 13) whether the person was arrested at the end of the interrogation.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162

Sixth Holding:

The circumstances are less likely to suggest to an individual that they are unable to leave or end the questioning when they voluntarily subject themselves to such an examination.

Authority:

People v. Potter (2021) 66 Cal.App.5th 528, 541 [holding that the defendant was not in custody when he voluntarily came to the police station for an interview]

People v. Torres (2018) 25 Cal.App.5th 162, 173 [defendant’s agreement to be voluntarily interviewed in unmarked police car weighed against a custodial finding]

Seventh Holding:

A custodial interrogation does not occur where an officer detains a suspect for investigation and limits questioning to the purpose of identification or obtaining sufficient information to confirm or dispel the officer’s suspicions that a crime has occurred.

Authority:

People v. Farnam (2002) 28 Cal.4th 107, 180

People v. Clair (1992) 2 Cal.4th 629, 679–680

Eighth Holding:

The mere fact that an individual is a suspect is not enough to foster a custodial environment; the officers’ suspicion must also be communicated to that person for it to factor into the custody determination.

The awareness of the person being questioned by an officer that the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom.

Authority:

People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163—1164

People v. Torres (2018) 25 Cal.App.5th 162, 176 [holding that officers’ expressed belief that the defendant was culpable and they had evidence to prove it weighed in favor of custody determination]

Ninth Holding:

An interview that takes place in public within view of any passersby reduces the ability of an unscrupulous officer to use illegitimate means to elicit incriminating responses and should lessen a suspect’s fear of abuse should they not cooperate.

Authority:

Berkemer v. McCarty (1984) 468 U.S. 420, 438

Tenth Holding:

The longer the period of questioning, the more likely it will be found to be coercive and custodial, although even one question may be enough in the proper circumstances.

Authority:

People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 12

Eleventh Holding:

If the court finds that the statement was admitted in violation of Miranda, the court must determine whether the error was harmless beyond a reasonable doubt and did not impact the jury’s guilty verdict, such that the jury would not have reached a different result had the trial court excluded the challenged statements.  

The court assesses whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21–22

People v. Caro (2019) 7 Cal.5th 463, 495

Chapman v. California (1967) 386 U.S. 18, 24

Twelfth Holding:

A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. On the record in this case, we cannot find that the admission of the defendant’s statements was harmless error.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296.

People v. Torres (2018) 25 Cal.App.5th 162, 181 [finding prejudice where there were no witnesses or physical evidence and defendant’s non-Mirandized statements was primary evidence]

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000856

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a hearing on the petition for resentencing under section 1172.75. Because the trial court did not orally pronounce sentence on defendant’s conviction, impose the mandatory parole revocation fine, or calculate credits for time served, we remand the matter for full resentencing. On remand, the trial court is directed to orally impose judgment; determine what the amount of the restitution fine would have been so it can impose, then stay, the parole revocation fine in a proper amount, and calculate credit for time served.

First Holding:

Our review of the record reveals the court did not orally pronounce judgment. Accordingly, we must remand the matter for a full resentencing. The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand, as is the failure to impose a parole revocation fine required by section 1202.45. Because an unauthorized sentence is a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal, we raise the issue even though neither party has addressed it.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411 fn. 6

People v. Terrell (1999) 69 Cal.App.4th 1246, 1255

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

Because the trial court’s recall of defendant’s sentence pursuant to section 1172.75(c) vacated that sentence, the trial court was required to conduct a full resentencing. While the court struck defendant’s now-invalid section 667.5(b) enhancements and ruled on his Romero motion, it did not orally pronounce judgment on defendant for his conviction for possessing cocaine. Nor did it orally reimpose the restitution fine or parole revocation fine or calculate actual custody credits. Because the trial court’s failure to orally pronounce judgment resulted in an unauthorized sentence, we remand for a full resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 360-361

Third Holding:

While the term of imprisonment, parole revocation fine, and actual custody credits are nevertheless listed in the minute order and abstract of judgment, the oral pronouncement of judgment controls over both.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Fourth Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Fifth Holding:

Add Section 1465.9 bars reimposition of the restitution fine upon defendant. Because the restitution fine was originally imposed on defendant more than 10 years ago, the fine is uncollectable and unenforceable by operation of law.
blurb here

Authority:

PEN 1465.9(d)

People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 332

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart sec. 1465.9’s 10-year clock], review granted on a different issue Mar. 11, 2026, S295038

Sixth Holding:

Although section 1465.9(d) imposed a 10-year limit on the enforcement and collection of the restitution fine, it did not provide relief with respect to the parole revocation fine. Under section 1202.45 and Kopp that fine remains mandatory and must be set in the same amount as the court would have set for defendant’s restitution fine even though the restitution fine itself may no longer be reimposed.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Seventh Holding:

Finally, at resentencing, the trial court is required to credit the defendant with all actual days he had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

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. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: 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.)

Abstracts and Minutes

Case 000854

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contained an error that must be corrected. 

(Gary note: This error favored the defendant, in that it reflected that the conviction was of second degree murder instead of the actual first degree murder. I include it to emphasize the importance of checking abstracts of judgment and minute orders, because errors are common. Based on what I’ve seen, I conclude that most errors depict the defendant’s plight as worse than its reality. On occasion, the error would favor the defendant if left uncorrected.)

Holding:

The abstract of error must be corrected to reflect the crime of which the defendant was actually convicted.

(Gary note: the court cited no authority for this directive, but it unquestionably has the authority. I have set out here several cases the 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

Elements of crime, Sentencing

Case 000853

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of multiple counts of sexual assault on a child. We agree the trial court did not make the necessary probable cause finding for the defendant to undergo AIDS testing absent evidence of transfer of bodily fluids. Remanded for the court to hold a hearing to see if there is evidence warranting the order.

First Holding:

Section 1202.1 requires that a court order AIDS testing if the defendant is convicted of specified sex offenses if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.

Authority:

PEN 1202.1(e)(5)(A)

Second Holding:

There was no evidence presented to the sentencing court that such a transfer occurred. But it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. On remand, the court should conduct further proceedings to determine whether probable cause exists to order AIDS testing under section 1202.1(e)(5)(A).

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1129

Amelioration, Appellate Principles, Elements of crime, Standard of review, Statutory interpretation, Vicarious liability

Case 000852

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for an evidentiary hearing.

First Holding:

Morris held that an aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder, we agree with defendant that the record of conviction does not show he was convicted as either the actual killer or as an aider and abettor who acted with the intent to kill as a matter of law,

Authority:

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

Second Holding:

SB 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, significantly limited the scope of California’s felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key statutory provisions.

Section 189 was amended so that a defendant is liable for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with the intent to kill, or (3) a major participant in the underlying felony and acted with reckless indifference to human life.

Section 188 was amended to impose a new requirement that, except in cases of felony murder, a principal in the crime of murder can only be convicted where he or she acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 189

PEN 188

People v. Strong (2022) 13 Cal.5th 698, 707-708

People v. Curiel (2023) 15 Cal.5th 433, 449

People v. Love (2025) 107 Cal.App.5th 1280, 1286

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931

Third Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced.

Authority:

PEN 1172.6

Fourth Holding:

Courts may not engage in factfinding at the prima facie 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.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. The record of conviction includes jury verdicts, jury instructions, and closing arguments.

This does not include our appellate opinion. The factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. If such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.

If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

Authority:

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

People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]

People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage]

People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted

People v. Clements (2022) 75 Cal.App.5th 276, 292 [Trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1172.6 petition reaches the stage of a full-fledged evidentiary hearing.]

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

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing. We may affirm a ruling that is correct in law on any ground.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Cortes (2022) 75 Cal.App.5th 198, 204

Sixth Holding:

For a person to be convicted of murder as an aider and abettor, the person must aid and abet the actual killer in the lethal act itself, and not just in the underlying felony.

Here, the record of conviction does not establish as a matter of law that defendant participated in aiding and abetting the kidnapping and other acts that led to the victim’s death and that he acted with the intent to kill. We thus reverse the trial court’s order and remand the matter with directions to issue an order to show cause and to conduct an evidentiary hearing.

Authority:

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

Appellate Principles, Discretion, Standard of review

Case 000851

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court erred when it denied mental health diversion under Penal Code section 1001.36, conditionally reverse the judgment, and remand the matter for the court to reconsider the defendant’s motion.

First Holding:

Diversion under section 1001.36 postpones criminal proceedings to allow the defendant to undergo mental health treatment, subject to specified conditions. It is intended to mitigate the entry and reentry of people with mental disorders into the criminal justice system by addressing their unique needs while simultaneously protecting public safety. A recognition that incarceration accomplishes little to deter lawlessness, but successful mental health treatment helps individuals and makes communities safer, led the Legislature to create and then expand this pretrial diversion.

Authority:

PEN 1001.35(a)(c)

People v. Braden (2023) 14 Cal.5th 791, 801

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890–891

Second Holding:

To qualify for mental health diversion, defendants must meet the two eligibility criteria under section 1001.36(b), and the four suitability criteria set forth in subdivision (c) of that section.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Third Holding:

Eligible defendants are suitable for diversion where (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety’ as defined in section 1170.18, which concerns the risk the defendant will commit violent felonies colloquially referred to as super strikes.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Fourth Holding:

Even when the defendant makes a prima facie showing of meeting the statutory eligibility and suitability criteria, the court may nonetheless exercise its discretion to deny diversion.

But this residual discretion must be exercised consistent with the principles and purpose of the governing law, including the strong legislative preference for treatment of mental health disorders given the resulting benefits to both the offending individual and the community.

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Fifth Holding:

We review a trial court’s ruling on a request for mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687

People v. Tourville (2026) 120 Cal.App.5th 439, 453

Sixth Holding:

A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.

Authority:

People v. Turner (2020) 10 Cal.5th 786, 807

Seventh Holding:

The court erred in finding the defendant not suitable for diversion because of his repeated failures to comply with other forms of supervision. It was an abuse of discretion to deny diversion based on such reasoning, whether on the ground that the defendant’s symptoms would not respond to treatment  or on the ground that the recommended treatment plan would not meet his or her needs.

Authority:

PEN 1001.36(c)(1), (f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893-894

Eighth Holding:

We will conditionally reverse the judgment and remand the matter for the trial court to reconsider the defendant’s motion for mental health diversion, bearing in mind the statutory principles and purpose of the statute, including the goal of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system.

We express no opinion as to how the court should rule on remand. Still, we observe that denying diversion based on a defendant’s treatment history may be a proper exercise of discretion if the proposed treatment plan is no different from one that failed in the past.

On the other hand, a defendant’s failure to benefit from past treatment may not support an order denying diversion where the proposed treatment plan adequately addresses the defendant’s mental health needs and is significantly different from the prior treatment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892, 895

People v. Russo (2026) 121 Cal.App.5th 134, 139

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 894-895

Abstracts and Minutes, Appellate Principles

Case 000850

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment should be corrected to accurately reflect that the crime-bail-crime enhancements were stayed.

Holding:

The abstract of judgment does not include the crime-bail-crime enhancements, and the court did not address them at sentencing. However, the minutes from the sentencing hearing state that punishment under section 12022.1(b) was stayed.

When a trial court’s intention is clear, we need not remand for resentencing, but can modify the judgment to reflect the intent of the trial court. Here, it is clear the court intended to stay the crime-bail-crime enhancements but failed to include the stayed enhancements on the abstract of judgment. Accordingly, we modify the judgment to reflect that the crime-bail-crime enhancements were imposed and stayed.

Authority:

People v. Mendoza (2016) 5 Cal.App.5th 535, 539