Author Archives: Gary McCurdy

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Appellate Principles, Fines and fees, Sentencing

Case 000678

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to life without the possibility of parole (LWOP). It was therefore improper to impose a parole revocation fine, which applies only to non-LWOP sentences.

First Holding:

The trial court erred in imposing and staying a parole revocation fine under section 1202.45(a), because the defendant’s sentence did not include a period of parole.

Authority:

People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation fine improperly imposed upon defendant sentenced to indeterminate term on one count and LWOP on another]

Second Holding:

The defendant also contends for the first time on appeal that the court violated his constitutional rights, by ordering him to pay a $10,000 restitution fine under Penal Code section 1202.4(b), a court operations surcharge under Government Code section 69926(a), and court facilities and court operations assessments under Government Code section 70373 and Penal Code 1465.8(a)(1)), without first determining his ability to pay. Because these contentions were not raised below, they are forfeited.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 856–859

People v. McCullough (2013) 56 Cal.4th 589, 597–598

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155

People v. Dueñas (2019) 30 Cal.App.5th 1157, overruled in part by People v. Kopp (2025) 19 Cal.5th 1, 23

Evidence

Case 000677

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant the exhibit was implied hearsay offered to prove the truth of what it implicitly asserted—that the defendant was a member of the social group. Because the exhibit was the only evidence directly tying the defendant to the social group that carried out the crimes, there is a reasonable probability he would have obtained a more favorable result had the exhibit been excluded. We reverse and remand.

First Holding:

Evidence of an express statement of a declarant is hearsay evidence if such evidence is offered to prove—not the truth of the matter that is stated in such statement expressly—but the truth of a matter that is stated in such statement by implication.

An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant’s express statement would reasonably believe that declarant intended by his express statement to make the implied statement.

Authority:

People v. Garcia (2008) 168 Cal.App.4th 261, 289

Second Holding:

The exhibit was not offered as circumstantial evidence as the Attorney General contends. It is not capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true. It is not akin to a receipt or fishing license that, by its mere presence in a particular location, tends to show someone’s association with that location. The exhibit was found in the cell of others who had no demonstrated tie to the defendant other than through the truth asserted by the exhibit itself.

Authority:

Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447

Third Holding:

Because the exhibit was inadmissible hearsay, the expert committed Sanchez error when he recounted its contents to the jury. The undisputed circumstances show that the exhibit was not made with a primary purpose of creating an out-of-court substitute for trial testimony.

Authority:

People v. Sanchez (2016) 63 Cal.4th 665, 686, 688

Fourth Holding:

The state law prejudice standard applies because the exhibit was not testimonial.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 840

People v. Watson (1956) 46 Cal.2d 818, 836–837

Abstracts and Minutes

Case 000676

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains errors that must be corrected.

Holding:

The abstract of judgment does not reflect the additional custody credits [more than 2600 days or the fines ($300 restitution and parole revocation restitution) ordered by the court. Instead, the abstract of judgment incorrectly reflects a $5,000 restitution fine and a $5,000 parole revocation restitution fine. It also incorrectly reflects defendant’s total credits as [less than 750] days.

[Gary note: The court did not list any authorities in support of its order for the correction of the abstract of judgment, but there is plenty available had it seen the need. I set forth some below:]

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 000675

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

Restitution fines more than 10 years old are not collectible and must be vacated. Resentencing does not restart the clock.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S295038 on a different issue