Author Archives: Gary McCurdy

Case 000067

Error and/or relief

The abstract of judgment requires correction to show that the enhancement was stricken and the determinate sentences were stayed under Penal Code section 654.

First Holding:

Where there is a discrepancy between the oral pronouncement of sentence and the minute order or abstract of judgment, the oral pronouncement controls.

Authority:

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

Second Holding:

A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. Here, however, we have rejected all but one of her claims of error. As a result, there are not multiple errors to accumulate.

Authority:

People v. Hill (1998) 17 Cal.4th 800, 844

People v. Weaver (2012) 53 Cal.4th 1056, 1077

Case 000066

Error and/or relief

We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.

First Holding:

An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal.

Authority:

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

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

In 2019, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant.

Authority:

PEN 667.5(b)

PEN 1172.75

Case 000065

Error and/or relief

When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.

Holding:

Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125 [Gary note: Phoenix is interesting in that it held that when a court is resentencing a defendant on cases inolving more than one county–e.g., running the home county’s sentence consecutive to or concurrent with a sentence imposed in another county–it is the duty of that home county court to calculate all the credits earned in all the cases, including any in another county.]

Case 000064

Error and/or relief

We conclude that the failure to appoint counsel and hold a prima facie hearing on the first and second degree murder convictions was harmless, but the same cannot be said with respect to his attempted murder conviction. We thus reverse the denial of the petition as to that count and remand for further proceedings, in line with People v. Patton (2025) 17 Cal.5th 549. Custody credits must be updated.

First Holding:

Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter.

Authority:

SB 1437

SB 775

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

Second Holding:

The instructions that guided the verdicts did not include all the elements of direct aiding and abetting liability for attempted murder. First, the instructions did not require the jury to find that the defendant had the specific intent to kill. the failure to identify a specific target crime while instructing with CALJIC No. 3.02 broadened the reach of the natural and probable consequences doctrine to include liability for aiding and abetting other unspecified criminal behavior. Indeed, the Prettyman court explained that omitting the element of the instruction identifying the target crime is error because it impermissibly allows the jury to convict the defendant of murder based on its belief that the defendant intended to assist and/or encourage unspecified nefarious conduct of which murder was a natural and probable consequence.

Authority:

People v. McCoy (2001) 25 Cal.4th 1111, 1118 [a defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]

People v. Prettyman (1996) 14 Cal.4th 248, 268

Estelle v. McGuire (1991) 502 U.S. 62, 72 [reversible error in failing to identify a target offense if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution]

Third Holding:

When a sentence is modified while defendant is serving the sentence, the trial court must update defendant’s actual custody credits up to that point.

Authority:

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

Case 000063

Error and/or relief

The trial court abused its discretion in denying the defendant’s request for a continuance (on day of trial), because his application for mental health diversion constituted good cause to do so. We reverse.

First Holding:

As to what is required to show an abuse of discretion, it has been described as a decision that exceeds the bounds of reason or one that is arbitrary, capricious, patently absurd, or even whimsical. But the standard cannot be boiled down to simply calling for reversal only if a ruling appears to be arbitrary, capricious or utterly irrational.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 92

Artus v. Gramercy Towers Condominium Assn. (2022) 76 Cal.App.5th 1043, 1051

People v. Williams (2021) 63 Cal.App.5th 990, 1000

People v. Jacobs (2007) 156 Cal.App.4th 728, 736–738

Second Holding:

The legal component of discretion was explained long ago in Bailey: The discretion intended is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.

Authority:

Bailey v. Taaffe (1866) 29 Cal.422, 424

Third Holding:

The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court.

Authority:

People v. Navarro (2021) 12 Cal.5th 285, 330

Fourth Holding:

We review the trial court’s denial of a continuance for abuse of discretion. In particular, we decide whether the denial of a continuance was so arbitrary as to violate due process. There are no mechanical tests for doing so

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

Ungar v. Sarafite (1964) 376 U.S. 575, 589

Fifth Holding:

In deciding whether good cause exists, courts consider whether the moving party has acted diligently; the anticipated benefits of the continuance; the burden that the continuance would impose on witnesses, jurors, and the court; and above all, whether substantial justice will be accomplished or defeated by a granting of the motion.

Authority:

People v. Reed (2018) 4 Cal.5th 989, 1004

People v. Doolin (2009) 45 Cal.4th 390, 450

People v. Gonzalez (2021) 12 Cal.5th 367, 387

Sixth Holding:

In sum,we recognize that defense counsel was not optimally diligent, and he certainly could have better attended to the procedural details of obtaining a continuance. But this relatively minor lack of diligence did not justify the substantial injustice the court’s order created Where denial of a continuance would result in a manifest injustice, as it did here, the policy disfavoring continuances must give way.

Authority:

Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759

Case 000062

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

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

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

Case 000061

Error and/or relief

We vacate the robbery-murder special circumstance finding for lack of sufficient evidence. We otherwise affirm the judgment.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. These same standards apply to challenges to the evidence underlying a true finding on a special circumstance.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 804

Second Holding:

The only admissible evidence that the four defendants agreed to rob the victim is the second codefendant’s testimony to that effect. And the only admissible evidence that a robbery actually occurred comes from that second codefendant’s testimony that some of the codefendants eventually took the victim’s wallet from him, scanned it for valuables, and kept it. However, it is well-settled that because of the reliability questions posed by accomplice testimony, such testimony by itself is insufficient as a matter of law to support a conviction.

Authority:

People v. Romero and Self (2015) 62 Cal.4th 1, 32

Third Holding:

The only other evidence of a conspiracy to robbery are those of a third and fourth codefendants made during a Perkins operation. Such evidence cannot corroborate the second codefendant’s testimony, because the required corroboration must come from a source other than another accomplice.

Authority:

People v. Price (1991) 1 Cal.4th 324, 444, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161

Fourth Holding:

In a “Perkins operation,” a suspect is placed in a cell with an undercover law enforcement agent, and their conversation is audio recorded.

Authority:

Illinois v. Perkins (1990) 496 U.S. 292

Case 000060

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Singleton (2025) 113 Cal.App.5th 783

People v. Boyd (2024) 103 Cal.App. 56

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

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

That Which Goes Awry 6/11/2026

What I Don’t Know Could Fill The Universe.

I recognize that I tend to be somewhat of a snoot when it comes to the English language. I’m not an expert in it, by any means, and frankly, short of probably being able to call something a noun or a verb or a preposition or an article, I do not have a handle on the grammarian’s patois. Restrictive, nonrestrictive, antecedent, dependent, independent,subordinate, appositive, absolute, and so on. I think I generally know how to use English, but I couldn’t tell you (with any confidence) what the names of its parts are. I don’t even qualify for Potter Stewart’s “I know it when I see it.” Maybe I’m more of a “Smoke’em if you got’em” kinda guy. (Though I don’t smoke, whether or not I got’em.) I know that old-fashioned watches kept time by spring-action moving various gears, but I couldn’t tell you the name of any of the parts.

Oxfords or Loafers, Anyone?

But I do recognize that I definitely have some biases on a few of those earth-shaking controversies. I like, for example, to set off by a comma the penultimate item in a series. Who doesn’t love a good Oxford comma, right? “John, Mary and I went to the park.” “John, Mary, and I went to the park.” Those two sentences could mean exactly the same thing, or they could mean two different things. In the first sentence, either two or three people went to the park. Either I told John that Mary and I went to the park, or all three of us went to the park. In the second sentence, most of the time it would mean that all three of us went to the park. (A possible exception: If I’m speaking to John AND Mary, then only I went to the park. But who comes up to two people and say, “John comma Mary comma I went to the park”? More likely, “Hey kids, I went to the park.”)

The REAL Battle of the Century?

Anyway, I know there are raging defenses from both sides on it. I remember a popular trend in the 1950s or 1960s toward dropping that last comma. I resisted. (Fortunately, my English teachers were rather meh about it all, so I wasn’t dinged for going up the flow instead of with it.) Over the years, I have found more instances of ambiguity in sentences without the Oxford comma than in those with it.

I Like To Think I’m Simply, Well, Anchored.

Maybe that’s just a shortcoming of my own thought processes. I admit I tend to cringe when I hear “She graduated high school in 2015.” (A long way from the original usage, “She was graduated from high school in [an 18th or 19th century date].) I confess, though, that I never adopted the “was,” and tend to say “She graduated from high school.” There’s no more justification for me to cringe at the evolution dropping the “from” than there was for my grandparents (or great-grandparents) to cringe at the dropping of the “was.” (I believe the original idea was that the institution bestowed the graduation by conferring a degree, so it did the graduating, and the person was graduated from the school by the institution.)

Why Do They Call The End The Start?

Then again, disclosure here: For a long time, I never really thought about the meaning of “Commencement” at graduation. For years (I won’t say whether it was years after graduating from high school or from law school), I blithely associated “Commencement ceremonies” as meaning the end of the road. I’m not sure what made me realize that nope, it’s the beginning of a new life (or some such positive bromide).

And Now Back To Our Regular Programming.

Which brings me to That Which goes awry. I’ve mentioned elsewhere on this site that I do a lot of copying and pasting from opinions, and that I reorganize and even substitute some of the words. I intend to convey the same principle, but because I am not presenting the entire opinion, sometimes I have to tinker to give some context, or maybe I’ll slap a couple of sentences together because they share a significance but in the opinion they were several paragraphs apart. One of the things I’ve been doing more and more is changing what I perceive to be the use of the word “which” where I think the word “that” is more formally the correct term.

Anyone Darwinian?

I do keep in mind that our language evolves. Thank goodness for that. I remember reciting a passage from Chaucer’s Canterbury Tales as an English assignment. I did not have the luxury of listening to a digital recording of a native 14th century English speaker, so I’m guessing my accent was a tad off, but my goodness, I had to trust my English teacher that it was written in English, because you couldn’t prove it by me. I suppose it’s like speaking any foreign language when you don’t know how, but I’m sure I sprayed a few students in the front row as I spat out the words the best I could. So amen to change, right?

Me, A Culpa? Never!

Keeping in mind my opening confession of snootiness, I do believe that the that/which enigma has not yet been formally accepted by most grammarians to consider that the two words are easily interchangeable and mean the same thing (or signal the same thing to the reader, perhaps).

Ding Dong, The Witch Is … Oh, Wait! Wrong Song!

Generally speaking, “which” will introduce a clause that the sentence could do without and still have meaning. “The manual, which comes in paper and electronic format, tells me how to assemble the chair.” I could write that as “The manual tells me how to assemble the chair,” and that’s a perfectly fine sentence. The “which” clause adds interesting and related information, but it is not the answer to “What should I read to learn how to assemble the chair?”

That That Is, Is; That That Is Not, Is Not That Is. (Or IS That?)

On the other hand, “that” introduces something that is vital to the sentence. “The book that says “This is how to assemble the chair” is the droid you’re looking for.” If I take out the “that” clause, it says, “The book is the droid you are looking for.” If my question is “What should I read to learn how to assemble the chair?” I’m not going to learn much without the “that” clause.

You’ve Got To Punc-Tu-U-Ate The Positive (Oh Wait, Another Wrong Song!)

And normally, a “which” clause is going to be set off by punctuation. (Not to be confused with Santa Claus, who sets off with a team of reindeer.) If it is in the middle of the sentence, a pair of commas will usually do the trick. “The book, which has a yellow cover, is on the table.” Or a period could work, depending on location. “Look on the table for the book, which has a yellow cover.”

Accept Except?

There are, of course, many times when “which” is appropriate in slightly other contexts. “I don’t know which book to pick up.” “That which is the most reliable is often the most overlooked.” Neither of those sentences would sound good substituting “that” for “which.”  There are probably a few other exceptions, too.

Everywhere I Go Egos.

I think it is my ego that instigated the writing of this article. When I see “which” where I think “that” ought to do, I change the language used by the courts in many opinions–in fact, some of the language appears in quotations from cases cited by the opinion as seminal authority–because I don’t want to sound like I don’t know when to use “which” and when to use “that.” Fully recognizing that usage is more of a guideline than an actual law, of course. And I don’t mean to cast disrespect on the courts that have chosen to use “which” where I think “that” is the more correct word. As the declarers of the law, what they say IS the law, right? So who am I to nitpick on a point on which (see, there’s a place where which works and that doesn’t) it’s probably just a matter of time before I’m wrong, or I’m right AND they’re right.

Why Stop With The Teeth?

I do have authority supporting my view, of course. (Never go armed without authority. Especially when sometimes it’s easy to find authority supporting either side of opposing and incompatible views.) From oldest to most recent of the weapons in my writing arsenal:

Guide to Modern English
Corbin, Perrin
Pub by Scott, Foresman and Company
1960

A Dictionary of Modern English Usage
H.H. Fowler, Second edition
Pub by Oxford at the Clarendon Press
1965

Line by Line
Clair Kehrwald Cook
Pub by Houghton Mifflin Company
1985

Woe Is I
Patricia T. O’Conner
Pub by Riverhead Books, New York
1996

Garner’s Modern American Usage
Bryan A. Garner, Third Edition
Pub by Oxford University Press
2009

The Internet
2026

And with that, I’m back to my which hunt!

 

Case 000059

Error and/or relief

We find there is insufficient evidence to support one of the convictions for sexual penetration. We find no other errors. Thus, we reverse in part, affirm in part, and remand for resentencing.

First Holding:

When considering a challenge to the sufficiency of the evidence we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Lindberg (2008) 45 Cal.4th 1, 27

Second Holding:

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.

Authority:

People v. Young (2005) 34 Cal.4th 1149, 1181

Third Holding:

The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence.

Authority:

People v. Bloom (1989) 48 Cal.3d 1194, 1208

Fourth Holding:

Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.

Authority:

People v. Bloom (1989) 48 Cal.3d 1194, 1208

Case 000058

Error and/or relief

The fines and fees not mentioned in the trial court’s oral imposition of sentence are improper and must be stricken.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

[Cf.] People v. Cleveland (2004) 32 Cal.4th 704, 768

Second Holding:

When a trial court does not orally impose discretionary restitution and parole revocation fines under sections 1202.4 and 1202.45 and the prosecution does not object, as here, the prosecution forfeits any objection on appeal and the fines or fees must be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

Third Holding:

When a defendant has been convicted of certain listed offenses, including any crime that requires sex offender registration pursuant to section 290(c) at the time of sentencing the trial court shall consider issuing an order restraining the defendant from any contact with a victim of the crime. It was error to include Jane Doe in the protective order because she was not a victim of the crime, and even as a witness there was no indication that the defendant had made threats toward her within the meaning of section 136.2(i)(2).

Authority:

PEN 136.2(i)(1)

PEN 136.2(i)(2)

People v. Walts (2025) 112 Cal.App.5th 127, 143 [The amendment to section 136.2(i)(1) reflects that the Legislature intended that protective orders should only be available for any person who is a victim of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted]

Fourth Holding:

The defendant should have objected to the protective order in trial court, thus forfeiting the issue, but we will nonetheless consider his argument to the extent that it raises a question of law.

Authority:

People v. Walts (2025) 112 Cal.App.5th 127, 140

Fifth Holding:

We review the trial court’s result, not its rationale.

Authority:

People v. Zapien (1993) 4 Cal.4th 929, 976

Case 000057

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the trial court to hold that hearing.

Holding:

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050