Author Archives: Gary McCurdy

Abstracts and Minutes

Case 000693

Posted on by Gary McCurdy

Error and/or relief

The sentencing minutes must be corrected to reflect the orally pronounced sentence.

First Holding:

The court imposed the middle term, to be served in the local jail. The trial court did not orally pronounce any restrictions on the defendant’s custodial sentence. On the trial court’s sentencing minutes, a box is checked next to the phrase “no early release of any type authorized,” and there are handwritten notations stating, “NO CPAC/NO WORK FURLOUGH.” [CPAC refers to the “County Parole and Alternative Custody Unit.”] The abstract of judgment does not reflect these restrictions.

In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]

Second Holding:

The reporter’s transcript of the sentencing hearing includes no explicit indication that the trial court was foreclosing the possibility of custody-alternative programs or early release. The clerk’s sentencing minutes imposing such restrictions therefore conflict with the trial court’s oral pronouncement of sentence. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 388 [striking sentencing conditions included in the clerk’s minutes that were not orally pronounced]

People v. Gobert (2023) 89 Cal.App.5th 676, 689

Probation Parole PRCS, Sentencing

Case 000692

Posted on by Gary McCurdy

Error and/or relief

The condition of probation requiring the minor to “report to your probation officer as directed and follow his or her orders” is unconstitutionally vague and overbroad and must be modified.

First Holding:

We review constitutional challenges to probation conditions de novo.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Second Holding:

A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Third Holding:

Courts may not delegate to probation officers the authority to set probation conditions. A probation officer has wide discretion to enforce court-ordered conditions and to give directives to a probationer, if those directives are reasonably related to previously imposed terms. The condition as drafted does not clearly demarcate the scope of the probation officer’s wide discretion to enforce the court’s conditions. To remove any ambiguity on this point, we will direct that the condition be modified to read “Report to [the probation officer] as directed and follow his/her orders related to the probation conditions imposed by the court.”

Authority:

In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373

People v. Smith (2022) 79 Cal.App.5th 897, 902 [While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.]

Defenses, Duty of the court, Elements of crime, Fifth Amendment, Jury instructions, Standard of review

Case 000691

Posted on by Gary McCurdy

Error and/or relief

The trial court gave an erroneous instruction on involuntary manslaughter requiring reversal. Based on the findings of the jury that the defendant was not guilty under any valid theory, we do not order retrial on the involuntary manslaughter.

First Holding:

(Gary note: I provide the following as context for the results in this opinion. These summaries are intended and designed to highlight principles of law, not so much the specific factual situation in which the error occurred. In this jury instruction error case, though, a little more factual specificity may aid the reader in understanding the more universal principles.

(In this case, the judge modified the standard instruction on involuntary manslaughter in such a way that the jury first had to find that the defendant acted in complete self-defense, and then had to determine whether he did so in a negligent matter. But that is not the law. Complete self-defense ends the question. Had the defendant acted in any way that was NOT complete self-defense, then he would not have been acting lawfully. And the jury necessarily found that he acted in complete self-defense, so it was misled by the instruction that allowed the jury to find him guilty of involuntary manslaughter.

(The opinion summarizes the context: “Here, the jury found defendant not guilty of first degree and second degree murder based on the finding that defendant acted in lawful self-defense in shooting defendant. It further found defendant not guilty of voluntary manslaughter rejecting that unreasonable self-defense was applicable. It found defendant guilty of involuntary manslaughter, finding, as recognized by the trial court, that defendant, ‘in a lawful act of self-defense, was criminally negligent in how he did it, and in his criminally negligent manner resulting in an involuntary manslaughter.’ As we have concluded, such determination was not a valid theory of involuntary manslaughter. There was no other theory of involuntary manslaughter presented to the jury. Here, the only question for the jury was whether defendant acted in reasonable self-defense in shooting [the victim] one time in the face. Once it concluded that such use of force was reasonable, it found lawful self-defense, which was a complete defense to involuntary manslaughter. The jury necessarily relied on the erroneous instruction to convict defendant of involuntary manslaughter after finding the complete defense of justifiable homicide. The error was prejudicial.”)

It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. It is also well settled that this duty to instruct extends to defenses if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 73

Second Holding:

In reviewing a claim that the court’s instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.

Authority:

People v. Butler (2010) 187 Cal.App.4th 998, 1013

Third Holding:

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice. A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense—the unreasonable but good faith belief in having to act in self-defense.

Authority:

PEN 192

People v. Elmore (2014) 59 Cal.4th 121, 132

People v. Blakeley (2000) 23 Cal.4th 82, 87-88

Fourth Holding:

A defendant commits involuntary manslaughter by committing a homicide with the mens rea of criminal negligence. The offense must be based on one of three predicate acts: (1) killing in the commission of a misdemeanor ; (2) killing in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or (3) killing in the commission of a noninherently dangerous felony committed without due caution and circumspection.

The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony.

Authority:

People v. Sevilla (2025) 115 Cal.App.5th 618, 626

Fifth Holding:

A killing in perfect self-defense is justifiable homicide. Perfect self-defense requires that one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. Imperfect self-defense reduces an intentional and unlawful killing to voluntary manslaughter. Imperfect self-defense occurs when defendants act in the actual but unreasonable belief they are in imminent danger of great bodily injury or death.

Authority:

People v. Odell (2023) 92 Cal.App.5th 307, 321

People v. Lewis (2001) 25 Cal.4th 610, 645

Sixth Holding:

In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1172

Fines and fees, Sentencing

Case 000690

Posted on by Gary McCurdy

Error and/or relief

The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.

First Holding:

A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.

Authority:

People v. Ortega (1998) 19 Cal.4th 686, 699

Second Holding:

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.

However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

Authority:

PEN 654

PEN 954

People v. Ortega (1998) 19 Cal.4th 686, 692

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. Sanders (2012) 55 Cal.4th 731, 736

Third Holding:

This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.

Authority:

People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435

People v. Estes (1983) 147 Cal.App.3d 23, 29

Fourth Holding:

The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.

Authority:

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

Fifth Holding:

Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.

Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.

Authority:

PEN 1202.5

PEN 1202.4

PEN 1465.8(a)(1)

GOV 70373

Abstracts and Minutes, Fines and fees

Case 000689

Posted on by Gary McCurdy

Error and/or relief

The restitution fine is more than 10 years old and must be vacated. The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment and must be corrected.

First Holding:

The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment. At resentencing, the trial court found defendant indigent and waived any non-mandatory fines and fees. Once the trial court found defendant indigent, the court operations and conviction assessments were no longer mandatory. They were, therefore, waived by the court.

The abstract of judgment nevertheless includes a court operations assessment (sec. 1465.8) totaling $560 and a conviction assessment (Gov. Code, sec. 70373) totaling $420. Because the abstract of judgment does not accurately reflect the court’s oral pronouncement of judgment, we will order it corrected.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 14-15

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

Second Holding:

The restitution fine was imposed more than 10 years ago and must be vacated.

Authority:

PEN 1465.9

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Abstracts and Minutes

Case 000687

Posted on by Gary McCurdy

Error and/or relief

At the sentencing hearing, the trial court found that the defendant did not have the ability to pay the Court Security Fee of $40 or the Criminal Conviction Fee of $30. But the court’s minute order and abstract of judgment both reflect that the trial court imposed a $40 court operations assessment (Pen. Code, sec. 1465.8) and a $30 criminal conviction assessment (Gov. Code, sec. 70373). The minute order and abstract of judgment must be amended to reflect the actual judgment.

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. We have the authority to correct such clerical errors.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 387–389

People v. Mitchell (2001) 26 Cal.4th 181, 185–186

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130

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

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

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

Fines and fees, Sentencing

Case 000685

Posted on by Gary McCurdy

Error and/or relief

When resentencing defendant under section 1172.75, the court reimposed the $400 restitution fine and a $400 suspended parole revocation fine originally imposed in 1999. The restitution fine must be vacated.

Holding:

Since the court originally imposed the restitution fine more than 10 years ago, section 1465.9(d) makes it now uncollectible and legally unenforceable.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S29503 on a different issue

Appellate Principles, Juveniles, Plea bargains, Sentencing

Case 000684

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred when it set minor’s maximum confinement term at 33 years plus 25 years to life. We modify the maximum term of confinement to 25 years eight months plus 25 years to life.

First Holding:

Effective January 1, 2019, the Legislature passed SB 1391. The amendment eliminated the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court jurisdiction. One year later, in 2020, the Legislature passed juvenile justice realignment through SB 823. It overhauled juvenile wardship law by closing the Division of Juvenile Justice and transferring jurisdiction over youthful offenders to counties, with the stated purpose of ensuring minors are closer to their families and communities and receive age appropriate treatment.

Authority:

WIC 707(a)

WIC 736.5

O.G. v. Superior Court of Ventura County (2011) 11 Cal.5th 82, 89

In re M.B. (2024) 99 Cal.App.5th 435, 448

In re T.O. (2022) 84 Cal.App.5th 252, 262–263

In re Miguel C. (2021) 69 Cal.App.5th 899, 907

Second Holding:

Section 875, effective May 14, 2021, was added as part of the juvenile justice realignment. Under the new scheme, commencing July 1, 2021, the court may order that a minor who is 14 years of age or older be committed to Secure Youth Treatment Facility if the minor meets certain criteria.

Authority:

WIC 875(a)

In re J.P. (2023) 94 Cal.App.5th 74, 78

Third Holding:

Section 875(b)(1) states the baseline term must be based on the most serious recent offense for which the minor has been adjudicated and shall represent the time in custody necessary to meet the developmental and treatment needs of the minor and to prepare the minor for discharge to a period of probation supervision in the community. The baseline term must be consistent with specified guidelines and may deviate by no more than six months.

Authority:

WIC 875(b)(1)

Fourth Holding:

In deciding minor’s placement, the juvenile court has maximum flexibility to craft suitable orders aimed at rehabilitating the particular minor before it.

Dispositional orders must conform with the purposes of juvenile delinquency laws, which are “twofold: (1) to serve the best interests of the delinquent minor by providing care, treatment, and guidance to rehabilitate the minor and enable him or her to be a law abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.

It must consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. A disposition hearing record should reflect evidence that the proposed means of rehabilitation will result in probable benefit to the minor, and that the goals of the juvenile law could not have been met by a less restrictive placement.

Authority:

In re James R. (2007) 153 Cal.App.4th 413, 432

In re Carlos J. (2018) 22 Cal.App.5th 1, 7

In re Michael D. (1987) 188 Cal.App.3d 1392

In re Miguel C. (2021) 69 Cal.App.5th 899, 906

In re Charles G. (2004) 115 Cal.App.4th 608, 614

In re Robert H. (2002) 96 Cal.App.4th 1317, 1329

Fifth Holding:

Plea bargains are an accepted and integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining is a common feature in juvenile delinquency proceedings, just as it is in criminal proceedings in adult court. Similar principles apply in both settings.

A plea bargain is a contract between the accused and the prosecutor. Both of these parties are bound to the terms of the agreement; when the court approves the plea bargain, it also agrees to be bound by its terms. Both the accused and the prosecution are entitled to the benefit of the plea bargain. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.

Authority:

People v. Collins (1978) 21 Cal.3d 208, 214

People v. Segura (2008) 44 Cal.4th 921, 929

In re Kenneth H. (2000) 80 Cal.App.4th 143 [It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the People and the court]

In re Jermaine B. (1999) 69 Cal.App.4th 634, 639 [Plea bargaining is an accepted practice in our criminal justice system]

People v. Vargas (2001) 91 Cal.App.4th 506, 533

People v. Armendariz (1993) 16 Cal.App.4th 906, 911

People v. Panizzon (1996) 13 Cal.4th 68, 80 [When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties must abide by the terms of the agreement]

Sixth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Ames (1989) 213 Cal.App.3d 1214, 1217

Seventh Holding:

The court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case, or where, after further consideration, the court concludes that the bargain is not in the best interests of society. In deciding whether or not to withdraw approval of a plea bargain, the court may of course be expected to consult the probation report.

Authority:

eople v. Johnson (1974) 10 Cal.3d 868, 873

People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338

People v. Stringham (1988) 206 Cal.App.3d 184, 194

Eighth Holding:

A minor who does not challenge an assertedly erroneous ruling of the juvenile court in that court has forfeited his or her right to raise the claim on appeal. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the court—so any error may be corrected. While forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880; In re F.M. (2023) 14 Cal.5th 701, 710

In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground

In re M.R. (2005) 132 Cal.App.4th 269, 273–274

United States v. Olano (1993) 507 U.S. 725, 733–734

In re Uriah R. (1999) 70 Cal.App.4th 1152, 1155 [A broad or general waiver such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error]

Ninth Holding:

The juvenile court incorrectly calculated the determinative portion of the term for count 2, the primary offense, as 19 years. Attempted murder, the offense in count 2, has a sentencing triad of five, seven, or nine years, for which the juvenile court imposed the upper term of nine years plus a 10 year term for the attendant gang enhancement pursuant to Penal Code section 186.22(b)(1)(C).

However, section 875(c)(1)(B) specifically states the term chosen by the juvenile court cannot exceed the middle term for which an adult would be eligible, with some exceptions. Therefore, the court erred in imposing the upper term for count 2.

Authority:

WIC 875(c)(1)(B)

Tenth Holding:

The juvenile court also miscalculated the consecutive term for count 1. Count 1 was the subordinate term, and the court was limited to one-third of the middle term plus one-third of the enhancements.

Authority:

PEN 1170.1

Abstracts and Minutes

Case 000683

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment misidentifies the statute under which the court sentenced the defendant on count four. The sentence of six years, eight months was pursuant to Penal Code section 12022.53(c), but the abstract of judgment states the sentence was pursuant to subdivision (d) of that section. We will direct the trial court to correct these clerical errors.

Holding:

Appellate courts may order corrections when an abstract of judgment does not accurately reflect the oral judgment of the trial court.

Authority:

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

Jurisdiction, Standard of review, Sufficiency of and substantial evidence

Case 000682

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to establish that one of the charged counts of aggravated sexual assault of a child based on sexual penetration took place within the jurisdiction of the superior court, and reverse the conviction on that count.

Holding:

There was insufficient evidence that more than one of the two counts of aggravated sexual assault of a child by sexual penetration occurred in a city in California, as opposed to Mexico.

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment and determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

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

The victim’s answers to the questions indicated that at least one of the incidents occurred in California, but did not exclude the possibility that the other occurred in Mexico, outside the superior court’s jurisdiction.

Authority:

People v. Maciel (2013) 57 Cal.4th 482, 514–515

People v. Kraft (2000) 23 Cal.4th 978, 1053