Author Archives: Gary McCurdy

Discretion, Effective assistance of counsel, Sentencing

Case: 000307

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand the matter for further proceedings on the firearm enhancements under Penal Code section 1385(c).

First Holding:

The defendant contends the court did not consider dismissing any of his four firearm enhancements under section 1385(c). He acknowledges his counsel didn’t ask the court to dismiss any of the enhancements, and he contends his attorney was constitutionally ineffective in that failure. The Attorney General contends the defendant has forfeited the issue. We exercise our discretion to consider the issue nevertheless, to resolve the defendant’s ineffective assistance of counsel claim. Trial courts have discretion to strike or dismiss firearm enhancements in the interest of justice under section 1385, which states that the court shall dismiss an enhancement if it is in the furtherance of justice to do so.

Authority:

PEN 12022.5(c)

PEN 1385(c)(1)

Second Holding:

Effective January 1, 2022, section 1385(c)(2) states sentencing courts shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Of the nine mitigating circumstances listed in the statute, the only one that conceivably applies to the defendant is subparagraph (B): that multiple enhancements are alleged in a single case. Subparagraph (B) provides, “In this instance, all enhancements beyond a single enhancement shall be dismissed.”

Authority:

PEN 1385(c)(2)(B)

Third Holding:

The presence of an enumerated mitigating circumstance does not create a presumption in favor of dismissal. Instead, absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032–1033

Fourth Holding:

However, section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety. Even without a finding that dismissal would endanger public safety, the trial court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the presence of any listed mitigating circumstances. We can’t tell whether the court considered the requirements of section 1385. Remand therefore is necessary.

Authority:

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

People v. Walker (2024) 16 Cal.5th 1024, 1029

Fifth Holding:

When considering whether to strike a firearm enhancement, a trial court considers the same factors considered when handing down a sentence in the first instance.

Authority:

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 497

Elements of crime, Fifth Amendment, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case: 000306

Posted on by Gary McCurdy

Error and/or relief

The evidence to support the alleged use of a deadly weapon is insufficient as a matter of law. The minor was alleged to have committed robbery with the use of a deadly or dangerous weapon (knife).

First Holding:

Section 12022(b)(1) allows a defendant’s sentence to be enhanced if he or she personally used a deadly or dangerous weapon during a felony. To prove use, the evidence must show something more than merely being armed. Intentionally displaying a weapon in a menacing manner qualifies. When a defendant deliberately shows a weapon or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the fact finder is entitled to find a facilitative use rather than an incidental or inadvertent exposure. But the use enhancement is not applicable if the evidence shows that the defendant’s conduct with respect to the weapon appears to be purely incidental to the crime, or if the defendant did no more than passively display the weapon.

Authority:

People v. Chambers (1972) 7 Cal.3d 666, 672

People v. Wims (1995) 10 Cal.4th 293, 302

People v. Granado (1996) 49 Cal.App.4th 317, 325

People v. Hays (1983) 147 Cal.App.3d 534, 548–549

Second Holding:

To determine whether the defendant used a knife for purposes of section 12022(b)(1), we may properly consult cases construing the term uses in other enhancement statutes, including cases involving the personal use of a firearm. But in doing so, we are mindful that unlike a firearm, a knife can be, and usually is, used for innocent purposes, and for that reason is not among the few objects that are inherently deadly weapons.

Authority:

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1198, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216

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

Third Holding:

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

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 59–60

Fourth Holding:

On a claim of insufficiency of the evidence, we consider the record evidence, not how a trial court might have responded to a timely objection.

Authority:

People v. McCullogh (2013) 56 Cal.4th 589, 596

In re I.A. (2020) 48 Cal.App.5th 767, 776 [No objection is necessary to preserve a challenge to the sufficiency of the evidence for appeal]

People v. Hiller (2023) 91 Cal.App.5th 335, 345 [a challenge to the sufficiency of the evidence is generally not subject to forfeiture]

Fifth Holding:

Reversal of the use enhancement for insufficiency of the evidence bars retrial of the enhancement.

Authority:

Tibbs v. Florida (1982) 457 U.S. 31, 42

People v. Eroshevich (2014) 60 Cal.4th 583, 591

Amelioration, Appellate Principles, Sentencing, Standard of review

Case: 000305

Posted on by Gary McCurdy

Error and/or relief

The order denying the petition for resentencing under section 1172.6 is reversed.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It accomplished this by amending sections 188 and 189. Section 188(a)(3) now prohibits imputing malice based solely on an individual’s participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189(e). Section 189 requires the prosecution to prove the defendant was the actual killer; an aider and abettor to murder who acted with the intent to kill; or a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

PEN 189

People v. Lewis (2021) 11 Cal.5th 952, 957

People v. Curiel (2023) 15 Cal.5th 433, 448

People v. Wilson (2023) 14 Cal.5th 839, 868–869

Second Holding:

The Legislature, to provide relief to those with existing murder convictions dependent on theories of the crime it had rejected, devised a path to resentencing. It has since expanded this path to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

If the record of conviction establishes ineligibility for resentencing as a matter of law, the petition is properly denied at the prima facie stage. However, the petition and record of conviction must establish conclusively that the defendant is ineligible for relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 970-972

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Authority:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Fifth Holding:

We conclude the defendant has made a prima facie showing that he was entitled to relief. The record of conviction does demonstrate a possibility that he was convicted of second degree murder under an imputed malice theory, that is, that he was guilty of murder based solely on his participation in the robbery. In assessing section 1172.6 petitions, the jury instructions will be critical. Indeed we look at the jury’s verdicts, viewed in light of the court’s jury instructions, to assess whether a defendant has made a prima facie showing for relief under section 1172.6.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Curiel (2023) 15 Cal.5th 433, 441

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000304

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for dismissal citing three different Penal Code sections—sections 1203.4, 1203.4a, and 1203.41. The trial court denied the petition based on section 1203.41, under which the defendant was not entitled to relief. We reverse and remand to allow the court to consider the defendant’s claim for relief under section 1203.4.

First Holding:

The trial court’s denial of relief under any of these statutes (1203.4, 1203.41, 1203.4a) is reviewed for abuse of discretion.

Authority:

People v. McLernon (2009) 174 Cal.App.4th 569, 572

Second Holding:

Section 1203.4 authorizes the trial court to expunge a criminal record if the defendant has fulfilled the conditions of probation for the entire period, the defendant was discharged before the probation period ended, or if the court believes relief should be granted in the interests of justice.

Authority:

PEN 1203.4

Third Holding:

Section 1203.4a authorizes dismissal of charges against defendants who are convicted of misdemeanors but were not granted probation.
Authority:

Authority:

PEN 1203.4a

Fourth Holding:

Section 1203.41 allows an individual convicted of a felony, under certain circumstances, to withdraw a guilty or nolo contendere plea, or set aside a guilty verdict in the interests of justice, in the court’s discretion. The crime to which the defendant pleaded guilty is a wobbler. In this case, because the defendant was sentenced to probation with 364 days in county jail, it is a misdemeanor offense.

Authority:

PEN 1203.41

People v. McElroy (2005) 126 Cal.App.4th 874, 880

Fifth Holding:

it appears the trial court may have been confused by the defendant’s petition, which sought relief under all three statutes. Relief was not authorized to the defendant under sections 1203.4a and 1203.41, and the court did not err in denying relief under section 1203.41. When a trial court evaluates a petition under the incorrect statute or misunderstands the scope of its discretion, this is an abuse of discretion and the case must be reversed and remanded for an exercise of informed discretion, unless the record clearly indicates the same result would follow.

Authority:

People v. Fuhrman (1997) 16 Cal.4th 930, 944 [where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required]

People v. Parker (2013) 217 Cal.App.4th 498, 501–502 [case remanded because trial court mistakenly believed an imposed but suspended sentence is a bar to section 1203.4 relief]

Amelioration, Elements of crime, Sentencing

Case: 000303

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.

First Holding:

Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

AB 333

PEN 186.22

PEN 1192.7(c)(28)

PEN 667

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

Second Holding:

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.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

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

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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

Abstracts and Minutes, Amelioration, Appellate Principles, Fines and fees, Sentencing

Case: 000301

Posted on by Gary McCurdy

Error and/or relief

Though affirming the trial court’s reimposition of the original sentence (minus the now-invalid enhancements for prior prison terms), it remanded the matter to the trial court to expressly state which fines and fees it was imposing, as it was not clear from the record.

First Holding:

The abstract of judgment lists several fines and fees, some of which are mandatory. The trial court, however, imposed only direct restitution (which is also listed in the abstract). A superior court’s failure to orally impose mandatory fines or assessments results in an unauthorized sentence that the appellate court may correct on appeal. But we do not believe the superior court sufficiently addressed ability to pay. It mentioned ability to pay only in the context of the direct restitution. It sidestepped the issue of ability to pay, treating it as irrelevant to the issue of direct victim restitution. As the court did not orally impose any additional fines or fees, the defendant had no meaningful opportunity to raise his ability to pay with respect to them.

Authority:

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153–1157

People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859 [ability-to-pay principles have not been extended to a victim restitution payment under section 1202.4(f)]

People v. Abrahamian (2020) 45 Cal.App.5th 314, 338

People v. Evans (2019) 39 Cal.App.5th 771, 777

Second Holding:

By statute, restitution fines and probation restitution fines under section 1202.4(b) and section 1202.45 that exceed the $300 minimum shall account for ability to pay. And because of equal protection principles, a court must consider ability to pay before imposing ancillary assessments under section 1465.8(a)(1) and Government Code section 70373. As to the remaining fine in the defendant’s case, under section 1202.5, the parties do not dispute the fine must be set with ability to pay in mind, but is mandatory if affordable. Given this, we will order a limited remand for the superior court to consider the mandatory fines and assessments omitted from its oral sentencing pronouncements in connection with defendant’s ability to pay.

Authority:

PEN 1202.5

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

Third Holding:

Regarding restitution fines, section 1465.9 has recently been 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. At least one Court of Appeal has held a court conducting a section 1172.75 resentencing cannot reimpose a restitution fine that is more than 10 years old and has held, instead, the fine should be stricken. As no restitution fine has been properly imposed, we are in no position to consider striking it, and the superior court can consider these developments on remand.

Authority:

PEN 1465.9(d)

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

Fourth Holding:

Walker approved Court of Appeal decisions that viewed section 1385 as calling for holistic balancing with special emphasis on the enumerated mitigating factors. Gonzalez did not create a new rule of law, but rather corrected a superior court’s misunderstanding regarding the term endangerment to public safety in section 1385(c)(2). The statute defines the term as a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others, which does not contemplate a laser-like focus on dangerousness at the time of sentencing. The superior court in Gonzalez had expressly limited its consideration to the defendant’s current dangerousness despite the call of the statute, a mistake not present here.

Authority:

PEN 1385(c)(2)

People v. Walker (2024) 16 Cal.5th 1024, 1036

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Fifth Holding:

We need not, and typically do not, address arguments raised for the first time in a reply brief.

Authority:

People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13

People v. Adir Internat., LLC (2025) 114 Cal.App.5th 275, 298

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

Case: 000300

Posted on by Gary McCurdy

Error and/or relief

We order the protective order modified to strike [person x] as a protected person. We reject the defendant’s claim that the trial erred in not sua sponte instruction on the defense of unconsciousness.

First Holding:

Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. For purposes of the defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist where the subject physically acts but is not, at the time, conscious of acting. The law presumes that a person who appears to be acting in a state of consciousness is conscious. Accordingly, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness. If a defendant produces substantial evidence that he or she was unconscious, the trial court is obligated to instruct the jury on the theory; the failure to do so is error. In this case, the defendant did not rebut the presumption of his consciousness, and it was therefore not error for the trial court to fail to instruct the jury on unconsciousness sua sponte.

Authority:

PEN 26

People v. Halvorsen (2007) 42 Cal.4th 379, 417

People v. James (2015) 238 Cal.App.4th 794, 804

Second Holding:

Unconsciousness caused by voluntary intoxication may negate specific intent, but it is not a defense to a general intent crime. Assault with a deadly weapon is a general intent crime. Reckless evasion of a peace officer is a specific intent crime.

Authority:

People v. James (2015) 238 Cal.App.4th 794, 805

People v. Rocha (1971) 3 Cal.3d 893, 899

People v. Williams (2001) 26 Cal.4th 779, 788

People v. Taylor (2018) 19 Cal.App.5th 1195, 1203-1206

Third Holding:

We review de novo whether the trial court correctly instructed the jury.

Authority:

People v. Oropeza (2007) 151 Cal.App.4th 73, 78

Fourth Holding:

A case is not authority for propositions not considered.

Authority:

People v. Chavez (2020) 54 Cal.App.5th 477, 480

Fifth Holding:

Where a defendant is convicted of certain defined crimes of domestic violence, the trial may issue a protective order restraining the defendant from any contact with a victim of the crime. Such orders are limited to defendants convicted of crimes that qualify as domestic violence and where the protected person qualifies as a victim of said crimes. The trial court does not have authority to restrain a defendant from contacting a person who was not present during or otherwise suffered harm from the crime.

For instance, a protective order covering children who were present but asleep during a domestic violence incident was found to be improper in Lopez. With respect to the issuance of a legally authorized criminal protective order, we imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.

The record here contains no substantial evidence from which the trial court reasonably could conclude that [person x] was a victim of the crime subject to protection under section 136.2(i)(1).

Authority:

PEN 136.2,(i)(1)

People v. Lopez (2022) 75 Cal.App.5th 227, 237

People v. Pena (2025) 113 Cal.App.5th 640, 648

People v. Race (2017) 18 Cal.App.5th 211, 217

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212 [absent evidence from which the trial court could reasonably conclude that appellant had harmed or attempted to harm two children, the court lacked authority to issue the no-contact protective order as to the children]

Fines and fees, Jurisdiction, Plea bargains, Sentencing

Case: 000299

Posted on by Gary McCurdy

Error and/or relief

On revoking probation, the court added an additional restitution fine to the original restitution fine and modified an eight-month consecutive term to an eight-month concurrent term in the same case, and then a 16-month concurrent term in a second case. On notice from the Department of Corrections and Rehabilitation that the 8-month concurrent term was unauthorized because the the one-third of the middle term clculation applies only to consecutive terms. The trial court then converted the eight-month concurrent term to 16 months concurrent. The second restitution fine was unauthorized and must be stricken. The court had no authority to change the original eight-month consecutive term to either a concurrent eight-month term or a sixteen-month concurrent term, because at the time probation was granted, the court imposed a sentence (two years on the principal count and eight months on the subordinate offense) in that case, with execution suspended pending successful completion of probation. The matter is remanded for resentencing.

First Holding:

A restitution fine imposed at the time probation is granted survives the revocation of probation. Because of this, an additional restitution fine imposed at the time probation is revoked is unauthorized and must be stricken from the judgment.

Authority:

People v. Urke (2011) 197 Cal.App.4th 766, 779

People v. Chambers (1998) 65 Cal.App.4th 819

Second Holding:

There is a distinction between a probation grant in which imposition of sentence has been suspended (meaning, no sentence has been declared) and one where sentence has been imposed (meaning, a term has been specified) with the execution of that term suspended during the term of probation. In the former (imposition of sentence suspended), on revocation the court is free to choose whatever sentence options were available had probation never been granted. In the latter, the only choices are to reinstate probation or to revoke probation and order the previously imposed sentence executed.

Authority:

PEN 1203.2(c)

People v. Howard (1997) 16 Cal.4th 1081

People v. Scott (2014) 58 Cal.4th 1415, 1424

Third Holding:

The letter from CDCR did not constitute a recommendation for recall of the sentence and resentencing under section 1170.1 that the sentence be modified. It was merely a letter seeking clarification on whether a lawful sentence had been imposed. Thus, the court could not base its resentencing on a response to the notice contemplated by section 1170.1.

Authority:

PEN 1170.1

People v. Codinha (2023) 92 Cal.App.5th 976, 986-987

People v. Singleton (2025) 113 Cal.App.5th 783, 791–792

Fourth Holding:

When the parties negotiate a plea agreement that grants probation incorporating and conditioned upon the service of a specified term in custody, the resulting term of incarceration constitutes a material term of, the parties’ agreement. As such, the term is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court’s general statutory authority to modify probation during the probationary period. Further, a plea agreement requiring an unauthorized sentence is not enforceable. On the other hand, once the court approves a plea bargain, it cannot change the agreement without the consent of the parties. When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931, 935

In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 945 [the trial court cannot approve a plea bargain that calls for an unlawful sentence]

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757

People v. Baries (1989) 209 Cal.App.3d 313, 319 [The concurrent sentence was unauthorized and could not have been lawfully imposed. It must be vacated, and the trial court must give the defendant, if she chooses, the opportunity to withdraw her plea since it cannot be honored.]

People v. Griffin (2005) 128 Cal.App.4th 1112, 1119

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000298

Posted on by Gary McCurdy

Error and/or relief

Although a trial court has broad discretion in imposing terms and conditions when sentencing a criminal defendant to probation instead of imprisonment, any conditions imposed must have some relationship to the crime and be designed to prevent future criminality. In this case, one of the probation conditions imposed required defendant to participate in mental health and substance abuse testing and treatment. Not only was this unconnected to the underlying crime, any suggestion in the probation and sentencing report that defendant suffered from mental health or substance abuse issues was wholly unsupported. Therefore, that probation condition must be stricken.

Holding:

A sentencing court has broad discretion to impose probation conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. But such discretion is not unlimited: A condition of probation must serve a purpose specified in the statute and conditions regulating noncriminal conduct must be reasonably related to the crime of which the defendant was convicted or to future criminality. A probation condition will be upheld unless all of the following are true: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. We review a challenge to the conditions of probation for abuse of discretion.

Authority:

PEN 1203.1

People v. Moran (2016) 1 Cal.5th 398, 403

People v. Lent (1975) 15 Cal.3d 481, 486

Amelioration, Sentencing

Case: 000297

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit

First Holding:

Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.

Authority:

PEN 1172.75

PEN 667.5

Second Holding:

Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Third Holding:

Defendant’s actual presentence custody credits must be recalculated at this resentencing.

Authority:

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

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37

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

Case: 000296

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the defendant’s conviction on count 2 for attempted voluntary manslaughter, and that conviction must be reversed. We also conclude the court’s use of the pre-AB 333 pattern jury instruction was prejudicial. This requires reversal of the gang enhancements, the substantive gang offense (count 7), and the related section 12022.53(d) and (e)(1) gang related firearm use enhancements.

First Holding:

Attempted voluntary manslaughter requires proof that the defendant specifically intended to kill the named victim, although the intent is mitigated by heat of passion or imperfect self-defense.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 583

Second Holding:

The jury must agree unanimously the defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime under a single count, either the prosecution must elect the act relied upon or the court must instruct the jury to agree on the same criminal act. The unanimity instruction exists to prevent jurors from convicting a defendant based on different instances of conduct, thereby ensuring all 12 jurors are convinced beyond a reasonable doubt that the same act constituted the offense. A unanimity instruction is required when the record shows evidence of more than one crime that could support conviction under a single count. But if the evidence shows only a single discrete crime, no instruction is necessary.

Authority:

People v. McDaniel (2021) 12 Cal.5th 97, 142

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Covarrubias (2016) 1 Cal.5th 838, 877

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

People v. Grimes (2016) 1 Cal.5th 698, 727

People v. Diedrich (1982) 31 Cal.3d 263, 281

Third Holding:

Determining whether a particular instruction was required presents a predominantly legal mixed question of law and fact. We therefore review claims of instructional error de novo.

Authority:

People v. Hernandez (2013) 217 Cal.App.4th 559, 568

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Guiuan (1998) 18 Cal.4th 558, 569

Fourth Holding:

In a criminal case, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. The correctness of jury instructions is determined by considering the charge as a whole, not by viewing individual instructions in isolation.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Carrington (2009) 47 Cal.4th 145, 192

Fifth Holding:

To determine whether the trial court properly instructed on the kill zone theory, we apply the substantial evidence standard of review. Under this standard, the question is whether the record contains evidence from which a reasonable jury could infer that the defendant intended to kill everyone within the zone of harm as a means of killing the primary target.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 193, 203 [Without substantial evidence showing the defendant acted with intent to kill a primary target, the essential basis for a concurrent intent analysis is not satisfied]

Sixth Holding:

The standard for assessing a sufficiency of the evidence claim is highly deferential. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence; that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting our review, we must presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence. We also accept all logical inferences the trial court could have drawn from circumstantial evidence. The question is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence supports the trier of fact’s finding. The judgment must be upheld unless it appears that, under no hypothesis whatsoever, is there sufficient substantial evidence to support it.

Authority:

People v. Cravens (2012) 53 Cal.4th 500, 507-508

People v. Kurey (2001) 88 Cal.App.4th 840, 848–849 [we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence will be resolved in favor of the decision]

People v. Medina (2009) 46 Cal.4th 913, 919, superseded by statute on other grounds

People v. Flores (2020) 9 Cal.5th 371, 411

People v. Crittenden (1994) 9 Cal.4th 83, 139

People v. Sanchez (2003) 113 Cal.App.4th 325, 329

Seventh Holding:

The jury was instructed on the gang participation law as it existed at the time of trial. Because subsequent amendments under AB 333 changed the elements considerably and the defendant’s judgment is not final, the gang-related convictions must be retried under the new law.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

People v. Lopez (2025) 17 Cal.5th 388, 394

People v. Hallock (1989) 208 Cal.App.3d 595, 610