Author Archives: Gary McCurdy

Equal protection, Sentencing

Case 000597

Posted on by Gary McCurdy

Error and/or relief

For a crime committed when he was under age 18 and for which he was tried as an adult and sentenced to 46 years to life, the defendant filed a petition under section 1170(d) to recall his sentence and be resentenced, claiming he was sentenced to the functional equivalent of life without the possibility of parole (LWOP). The trial court denied the petition, concluding that the sentence was not the functional equivalent of LWOP. Reversed.

First Holding:

The issue regarding what sentences constitute the functional equivalent of LWOP is one the Supreme Court is set to resolve in Munoz.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828

Second Holding:

Defendant maintained he was eligible for resentencing even though he was not given an LWOP sentence because he was serving a sentence that was the functional equivalent of LWOP and treating him as if he were ineligible for resentencing would accordingly violate equal protection principles. We agree with Heard and other precedent that holds defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, must be eligible for section 1170(d) relief pursuant to equal protection guarantees—and the availability of a youthful offender parole hearing does not undercut this conclusion.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608, 628-629

People v. Contreras (2018) 4 Cal.5th 349

People v. Sorto (2024) 104 Cal.App.5th 435, 440

Abstracts and Minutes, Fines and fees, Sentencing

Case 000596

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court ordered that the original fines and fees imposed nearly 30 years earlier would remain the same. They are ordered stricken.

First Holding:

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

Authority:

PEN 1465.9

Second Holding:

The $70 fee imposed for AIDS education must be vacated. The original sentencing court imposed this fee pursuant to section 264(b), which states in relevant part: The judge may assess a fine not to exceed $70 against a person who violates Section 261 or former Section 262 with the proceeds of this fine to be used in accordance with section 1463.23. Section 1463.23, however, was repealed effective January 1, 2018. The provision authorizing the AIDS education fee (sec. 264, subd. (b)) was impliedly repealed in 2018, when the referenced statute (sec. 1463.23) was actually repealed, since it is no longer possible for the proceeds of this fine to be used in accordance with section 1463.23. Accordingly, the AIDS education fee is vacated.

Authority:

Repeal of PEN 1463.23

Third Holding:

The abstract of judgment filed in 2024 does not reflect the restitution fine or the AIDS education fee. We further note that the sentencing minute order similarly does not refer to any fines and fees imposed. Nevertheless, it is well established that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Accordingly, the clerk of the superior court is ordered to prepare an amended abstract of judgment and an amended sentencing minute order reflecting that the previously imposed restitution fine and AIDS education fee are vacated.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

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

Case 000595

Posted on by Gary McCurdy

Error and/or relief

Defendant was convicted of multiple counts of a sexual nature against children. There was insufficient evidence to support one of the counts. Six other counts are reversed because of a prejudicial error on their verdict forms for those counts (listing the descriptions of the crimes but incorrectly identifying the section number, thus possibly confusing the jury because there was another count that correctly bore that section number and the jury was instructed on its elements, which it may have incorrectly relied on for its verdicts in the erroneous verdict forms).

First Holding:

A conviction must be supported by substantial evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Medina (2009) 46 Cal.4th 913, 919

Second Holding:

We review the trial court’s denial of the new trial motion for abuse of discretion. The California Constitution provides that no judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The effect of this provision is to eliminate any presumption of injury from error and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant.

Authority:

Cal. Const., art. VI, sec. 13

People v. Delgado (1993) 5 Cal.4th 312, 328

People v. Jacobs (1991) 230 Cal.App.3d 1337, 1346

Third Holding:

Under the applicable prejudice standard, an erroneous verdict form is harmless if it is unmistakably clear under the totality of the circumstances that the jury intended to convict the defendant of the crime charged.

Authority:

People v. Camacho (2009) 171 Cal.App.4th 1269, 1272

Fourth Holding:

A prosecutor’s statement of facts not in evidence constitutes misconduct.

Authority:

People v. Bolton (1979) 23 Cal.3d 208, 212

Jurisdiction, Sentencing

Case 000594

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This was NOT a win for the defense, but I include it because it contains a valuable point.] If an inmate is NOT CURRENTLY serving a sentence that has been enhanced by a now-invalid prior prison term conviction, that inmate is NOT ELIGIBLE for resentencing under section 1172.75. Thus, the appellate court reversed the resentencing order of the trial court that dismissed the now-invalid prior, because the defendant was no longer serving a sentence enhanced by it at the time of resentencing.

Holding:

By 2006 at the latest, the defendant had completed his original sentence that was enhanced by a single prior prison term in 1996. However, the defendant committed several new felonies while incarcerated, and was still serving those sentences when he filed his petition for recall of his original sentence in 2023. The superior court struck the original prior prison term enhancement in 2025.

But the defendant was no longer serving a sentence on that judgment. New crimes committed while in prison are treated as separate offenses and begin a new aggregate term. Section 1172.75 requires two things in addition to the judgment including an invalid section 667.5(b) enhancement: (1) that the defendant be in custody and (2) be currently serving a term on the judgment containing the invalid enhancement. Where a defendant remains in prison, the current judgment is the operative judgment pursuant to which they are incarcerated. Because the defendant was no longer in custody on the offense bearing the now-invalid enhancement, the court had no jurisdiction to dismiss it. We therefore reverse the judgment entered following the 2025 resentencing. The 1996 judgment is reinstated.

Authority:

People v. Langston (2004) 33 Cal.4th 1237, 1242

People v. Washington (2026) 117 Cal.App.5th 1057, 1065-1066

People v. Escobedo (2023) 95 Cal.App.5th 440, 447

People v. Amaya (2015) 239 Cal.App.4th 379, 386–387 [the trial court’s resentencing was void on the face of the record because the court granted relief that it had no power to grant]

Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 53 [when, as here, there is an appeal from a void judgment, the reviewing court’s jurisdiction is limited to reversing the trial court’s void acts]

Abstracts and Minutes, Appellate Principles

Case 000593

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment listed fines and fees that were not imposed by the court. It must be corrected.

Holding:

The parties agree that we should order the trial court to correct its minutes and prepare an amended abstract of judgment that accurately reflects that the trial court suspended and never imposed any fines and fees other than victim restitution. We thus instruct the trial court to issue a corrected minute order and an amended abstract of judgment indicating that the only monetary obligation imposed on the defendant is the amount ordered for victim restitution.

(Gary note:  The court did not cite authority for its power to order correction of an abstract of judgment, so in addition to the court’s reference to Lynex,  I have listed several cases it could have relied on.)

Authority:

In re Lynex (2026) 118 Cal.App.5th 756, 769 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case]

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

Sentencing

Case 000592

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in treating three prior serious felonies separately though they were not brought and tried separately. Remanded for full resentencing.

First Holding:

Section 667(a) provides for a separate five-year sentence enhancement for every prior serious felony conviction on charges brought and tried separately. Where multiple charges were not brought separately, but were made in a single complaint, the court can only impose a single five-year enhancement for the multiple charges. The question whether prior convictions were brought and tried separately is for the court to decide, not the jury.

Authority:

In re Harris (1989) 49 Cal.3d 131, 136-137

People v. Jones (2015) 236 Cal.App.4th 1411, 1415-1416

Second Holding:

Given that the court rested its sentencing decisions on a mistaken understanding of the law, defendant is entitled to a full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case 000591

Posted on by Gary McCurdy

Error and/or relief

The court erred in finding true the defendant’s two prior strikes. The true findings on appellant’s prior strike conviction allegations are reversed, and the matter is remanded to the trial court. Upon remand, the court is directed to give the People the opportunity to retry the strike allegations.

First Holding:

In 2022, AB 333 went into effect and made changes to the law on gang enhancements, including narrowing the definitions of a criminal street gang, and pattern of criminal activity.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

The defendant’s 2014 prior felony conviction was a strike because it included a gang enhancement under the then-version of section 186.22. Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. The current law applicable to a nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

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

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

People v. Tran (2022) 13 Cal.5th 1169

Third Holding:

There was insufficient evidence for the court to find that the defendant’s 2010 conviction for grossly negligent discharge of a firearm qualified as a strike prior, because no evidence was presented that the defendant personally used the firearm. It is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor. The People in this case presented evidence only of appellant’s conviction, and not any information regarding the conviction’s underlying facts.

Thus, the People proved nothing more than the least adjudicated elements of the prior conviction. Because there was no admission or evidence that appellant personally used a firearm, which would qualify his prior section 246.3 conviction as a serious felony pursuant to section 1192.7(c) the trial court’s true finding was in error. The remedy in such a case is remand for retrial at the prosecution’s election.

Authority:

People v. Golde (2008) 163 Cal.App.4th 101, 112-113

People v. Rodriguez (1998) 17 Cal.4th 253, 262

People v. Barragan (2004) 32 Cal.4th 236, 239

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case 000590

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s Penal Code section 1172.6 petition for resentencing at the prima facie stage.

First Holding:

Effective January 2019, the Legislature amended the law to eliminate liability for murder based on the natural and probable consequences doctrine or theories of imputed malice predicated solely on one’s participation in a crime. As relevant here, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Second Holding:

A trial court considering a section 1172.6 petition must first determine whether the petitioner made a prima facie showing he or she could not presently be convicted under the amended laws. In doing so, the court accepts the petitioner’s factual allegations as true. The court may deny the petition at the prima facie stage only if the record of conviction—which includes facts admitted in a guilty plea—conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Here, as the People concede, the record did not foreclose the possibility that the defendant was convicted under the invalid natural and probable consequences theory. His admissions and factual basis for the guilty plea were generic and did not establish the specific theory of aiding and abetting under which the defendant admitted guilt. Accordingly, they do not establish that he is ineligible for section 1172.6 relief as a matter of law. He pled that he aided and abetted a murder, but the natural and probable consequences doctrine is one theory of aiding and abetting.

Authority:

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

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211. 1212

Third Holding:

We review de novo the trial court’s resentencing denial at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

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

Case 000589

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

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

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

Second Holding:

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

Authority:

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

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

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

Third Holding:

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

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

Authority:

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

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

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

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

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

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

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

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

Fourth Holding:

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

Authority:

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

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

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

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

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

Fifth Holding:

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

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

Authority:

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

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

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

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

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

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

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

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

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

Sixth Holding:

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

Authority:

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

Seventh Holding:

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

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

Authority:

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

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

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

Case 000588

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

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

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

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

Authority:

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

Fifth Holding:

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

Authority:

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

Fines and fees, Retroactivity, Sentencing

Case 000587

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1465.9(d)

Second Holding:

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

Authority:

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

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

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

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

Third Holding:

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

Authority:

PEN 1465.9(d)

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

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

Fourth Holding:

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

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

Discretion, Standard of review

Case 000586

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

PEN 1001.36(c)(4)

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

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

Authority:

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

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