Author Archives: Gary McCurdy

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000957

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be amended to show that the restitution fine was vacated and the trial court security fee was stayed. We also order corrections on the minute order from the resentencing hearing.

First Holding:

At the resentencing hearing under section 1172.75, the court suspended or stayed any unpaid amounts of the previously imposed court fees and the restitution fine. In contrast, the abstract of judgment filed after the resentencing hearing erroneously showed the trial court imposed the restitution fine of $10,000 and the court security fee of $20.

The abstract of judgment must be corrected to reflect the oral pronouncement. Further, the minute order reflects that the defendant was convicted of murder in the second degree, whereas he was actually convicted of murder in the first degree.

The minute order also must be amended.

Authority:

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

Second Holding:

Further, although the trial court intended to stay or suspend any unpaid balance of the restitution fine, that fine must be vacated because it was imposed more than 10 years earlier and the abstract of judgment must be amended to reflect that it has been vacated.

Authority:

PEN 1465.9(d)

Abstracts and Minutes, Sentencing

Case 000956

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm. We remand for resentencing.

First Holding:

The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction.

This sentence violates section 654’s prohibition of multiple punishment for a single act or omission, or an indivisible course of conduct. All three convictions were based on a single possession or carrying of a single firearm on a single occasion and may be punished only once under section 654.

Authority:

PEN 654(a) [an act punishable in different ways by different provisions of law shall not be punished under more than one provision]

People v. Deloza (1998) 18 Cal.4th 585, 591

People v. Jones (2012) 54 Cal.4th 350, 357

Second Holding:

That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6 is inconsequential. A concurrent sentence is still a punishment subject to section 654. In these circumstances, the trial court was required to impose one sentence and to stay the execution of the duplicative sentence.

Authority:

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

People v. Mani (2022) 74 Cal.App.5th 343, 380

Third Holding:

(Gary note: The opinion did not describe count 3 or what the oral pronouncement of sentence was for that count, but in the opinion’s disposition paragraph, the court included the following sentence: “The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3.”

(That is the only reference to the abstract in the opinion. I include this as a “holding” because it represents yet another instance of where an abstract of judgment was apparently incorrect. The cases I have listed below are some of several cases that the court could have chosen to cite as authority for its order.

Authority:

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

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

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Fines and fees, Sentencing

Case 000955

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 not paid within 10 years must be vacated. 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)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Duty of the court, Elements of crime, Juveniles, Sentencing

Case 000953

Posted on by Gary McCurdy

Error and/or relief

The court erred in setting the maximum confinement time for the minor to life imprisonment, because it did not make a finding that the attempted murder was willful, deliberate, and premeditated.

First Holding:

When committing a juvenile to a secure youth treatment facility as in the case here, the court must set a maximum term of confinement. The maximum term of confinement shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense or offenses.

Authority:

WIC 975(c)(1)

Second Holding:

Attempted murder is generally punishable by five, seven or nine years in state prison. However, if the attempted murder is willful, deliberate, and premeditated, and that fact is charged in the accusatory pleading and found true by the trier of fact, the crime is punishable by life in prison with the possibility of parole.

Authority:

PEN 664(a), 190

Third Holding:

A reading of the transcript of the proceedings reveal that neither the prosecution nor the court believed that the charge contained the language invoking a life term for the conviction of attempted murder. The trial court’s statement that “the intent to kill is clear” is insufficient because the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.

The trial court never found, whether expressly or impliedly, that the attempted murder was willful, deliberate, and premeditated. The seven-year-to-life maximum term of confinement for count 1 is therefore unauthorized. Accordingly, we reverse and remand for a new disposition hearing.

(Gary note: The court did not cite additional authority for its reversal and remand order; likely, none was necessary. The court did cite Boatman, but that was on the point that intent to kill is not the equivalent of deliberated and premeditated intent to kill. Much of the court’s reasoning consisted of analysis of the comments at the disposition hearing, where the prosecution and court seemed to be under the impression that the charging document did not invoke the life term provisions, even though, in fact, the charging document did.

(But the oral pronouncements of the court strongly imply that it specifically did not conclude that the act was “willful, deliberate, and premeditated,” and that an underlying crime was planned, but the shooting was not. Hence, even though the charging document alleged it, the life term cannot be imposed/set as a maximum in the absence of a true finding on the necessary elements.)

Authority:

People v. Boatman (2013) 221 Cal.App.4th 1253, 1264

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000952

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in pronouncing judgment regarding custody credits. Though the court announced the actual and conduct amounts separately and correctly, the court announced an incorrect total of the two. We modify the judgment accordingly.

Holding:

the trial court awarded the defendant 98 days of actual credit and 98 days of conduct credit (sec. 4019), but made a mathematical error in announcing the defendant’s total credit as 180 days rather than 196 days. The abstract of judgment already reflects the proper total and need not be corrected, but we modify the judgment to reflect the correct total.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment]

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

SB 1437 also added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

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

Second Holding:

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

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714

People v. Lopez (2026) 19 Cal.5th 639, 658-668

People v. Reyes (2023) 14 Cal.5th 981, 990-992

Abstracts and Minutes, Duty of the court, Sentencing

Case 000950

Posted on by Gary McCurdy

Error and/or relief

(Gary note: this is not necessarily a win, but I included it because it contains authority that might be useful at some point, if it works to the benefit of the defendant. In this instance, the court remanded for a full resentencing, which could be beneficial to the defendant, because the trial court should be able to consider his progress since the initial sentencing. Assuming there has been progress.

(Keep in mind the original section 1170(d)–which is not related to this case at all–that allowed a judge to recall a sentence at any time during the first 120 days after commitment. I think the concept was that maybe a judge could be persuaded to soften a bit once the defendant has some real time under his belt. Now, of course, the appropriate section has been redesigned and renumbered to 1170.1, which is not at issue in this case, either. But my point is that the defendant might be able to convince the judge to soften from the original sentence. On the other hand, the judge might simply add the full sentence allowed for the misdemeanor and run it consecutively. So, ….)

The trial court neglected to sentence the defendant on count 7, misdemeanor possession of a controlled substance. The failure to pronounce sentence on this count was error and that the appropriate remedy is remand for a full resentencing.

First Holding:

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

Authority:

PEN 12

PEN 1202

PEN 1445

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514.)

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

In re Sandel (1966) 64 Cal.2d 412, 415

Second Holding:

The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand.

Authority:

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

People v. Benton (1979) 100 Cal.App.3d 92, 102 [failure to either strike or impose enhancement was analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal]

Third Holding:

Even if the minute order or the abstract of judgment did reflect a sentence on count 7, failure to pronounce sentence orally renders the sentence unauthorized.

Authority:

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]

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement and controls over minutes and abstract of judgment]

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

Fourth Holding:

Under these circumstances, we agree with the parties that the proper remedy is a remand for full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431 [remand is the default unless there is a clear indication from the sentencing court that it would be idle to do so]

People v. Codinha (2023) 92 Cal.App.5th 976, 994–995

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the interlocking nature and inherently integrated nature of felony sentencing for a multiple-count conviction]

Fifth Holding:

Remand is appropriate for the additional reason that the trial court should decide whether section 654 applies to count 7 in the first instance.

(Gary note: The court did not mention it, because it really wasn’t even an issue raised and this mention was strictly in a footnote, but under section 654, the trial court could choose EITHER affected count to sentence the defendant under. So if the misdemeanor and a felony were subject to a single sentence under section 654, the court could impose the misdemeanor sentence and stay the felony sentence. Could happen.)

Authority:

People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 [the question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [concluding in part that the need to apply section 654 warrants a full resentencing]

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Abstracts and Minutes

Case 000948

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not reflect the in-custody credits announced by the court during the resentencing hearing. Specifically, the court ordered the abstract of judgment to reflect, not only the presentence credits but also the actual days in prison, which were calculated as [X] days [more than 32 years]. It must be corrected.

Holding:

The failure to include the credit for time served pronounced in the oral judgment is clerical error. Courts may correct clerical errors at any time.

Authority:

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

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Amelioration, Retroactivity, Sentencing

Case 000946

Posted on by Gary McCurdy

Error and/or relief

The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.

First Holding:

AB 333 (2021-2022 Reg. Sess.) amended section 186.22 by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, with regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28).

Authority:

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

People v. Fletcher (2025) 18 Cal.5th 576, 58

Second Holding:

The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.

The current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.

The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 606-607

Third Holding:

The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.

Authority:

PEN 1382(a)(2)

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

People v. Watts (2006) 131 Cal.App.4th 589, 597-598