Author Archives: Gary McCurdy

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

A Dictionary of Modern American Usage
Bryan Garner
Pub by Oxford University Press
1998

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

Garner’s Modern English Usage (Kindle Edition)
Brian Garner, Fifth Edition
Pub by Oxford University Press
2022

The Internet
2026 (and counting)

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