Author: Gary

Can there be such a thing as a plethora of daffodils? Nope!

Well, the vote is in. Overwhelmingly (1-0), I have opted to set aside the cases that I had put together disorganizedly but have not yet posted, and I will simply pick up with the cases that I had begun to get blog-ready from the get-go. My previous post (Post 25) ended with Case 000145. Today I start with 000247 through 000253. Not to worry about the break in case numbers. I’ve set the missing 101 aside. Maybe someday, if there’s a spate of zero-victory-days, I can go back and ready them for posting.

I don’t know about you, but I’m not holding my breath.

As of today, I have reviewed and selected for posting just under 480 cases. As you can see, I’m putting up number 000253. Taking into consideration that I’m not likely to deal with the 101 any time soon, I still have around 130 ready to assemble into posts. And they come in five days a week, anywhere from two or three up to a dozen or so a day.

Now, I recognize that most attorneys had a choice between data analysis, mathematics, and the practice of law, and chose the latter. Maybe for good reason. But I can see that you’ll get less sleep tonight if I don’t give you some stats. You can thank me in the morning.

I started collecting unpublished “wins” (remember, it’s win if the court does anything, no matter how slight, that could possible ever benefit a defendant, even if it is as little as issuing an order for the correction of an abstract of judgment or minute order that paints a defendant worse than he or she is) in October 2025, but I didn’t start keeping a list of ALL unpublished opinions until November 17, 2025. From then until February 26, 2026, the Courts of Appeal have posted 2,133 unpublished opinions. Of those, 1,092 had captions “P. v.” It’s a good bet they were all criminal cases. Some others were probably habeas corpus, but I don’t have a ready way to determine whether “In re” titles in the cases were dependency cases, delinquency cases , or habeas cases.

Of those roughly 1,090 “P. v.” cases, I have summarized 275 as “wins.” (Well, probably a little less than 275 were “P. v.,” because I have summarized a few habeas and a few delinquency “In re” cases, but I don’t record the title in my database, so I can’t determine the exact number of P. v. cases. Another good bet is that it is at least 265.)

Since I don’t have to be as precise as the calculations necessary to land a camera on Mars, I think it’s fair to say that roughly a quarter of the unpublished criminal cases have provided my kind of “win” for a defendant.

Now you know. Sleep tight.

Summary of Summaries

The trial court erred by engaging in fact-finding at the prima facie stage of a PC 1172.6 sentencing recall hearing.

Another SB 1437/PC 1172.6 denial at the prima facie stage is reversed.

The court should have instructed on the lesser included offense of battery.

A remand for calculation of all credit for time served, even where the sentence is an indeterminate term.

Where the court, for whatever reason, did not make a finding to indicate that the felony was a violent felony, the abstract of judgment correctly showed that it was therefore not a violent felony, despite a letter from CDCR suggesting the facts showed that it was.  By failing to make a finding, it was deemed to be a deliberate act of leniency, and it was error for the trial court to change the abstract of judgment to indicate it was a violent felony, contrary to the actual judgment imposed in light of the presumed act of leniency.  [Hey, a favorable shout-out that the abstract correctly represented the actual oral order!  While that is likely true in the overwhelming number of cases, we know that errors in abstracts and minute orders are not uncommon.]

Where the trial court clearly intended to impose the minimum restitution but mistakenly set it at $600 for the two counts rather than the actual minimum of $300, the appellate court modified the judgment to reflect the actual minimum restitution fine of $300.

Where the sentence consists of LWOP, or even LWOP and an indeterminate sentence, it is error to impose the parole revocation fine under PC 1402.45.

Case:  000247

The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95)  as to his second-degree murder conviction by a no-contest plea.  The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law.  The People concede the court erred and the error was prejudicial.  We agree and thus reverse.   

First Holding:  If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested. [See] Penal Code section 1172.6(b)(1)(A), (3); People v. Lewis (2021) 11 Cal.5th 952, 962-963.

Second Holding:  Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson.  Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition. [See] People v. Watson (1956) 46 Cal.2d 818; People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing].

Third Holding:  A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.  [See] People v. Lewis (2021) 11 Cal.5th 952, 972; People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]; People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act].

Case: 000248

The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

First Holding: The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal. [See] People v. Brothers (2015) 236 Cal.App.4th 24, 29, and fn. 6 on p. 33.

Second Holding: We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction. [See] People v. Brothers (2015) 236 Cal.App.4th 24, 30.

Third Holding: It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only. [See] Penal Code section 243.4(e)(1); Penal Code section 242; People v. Shockley (2013) 58 Cal.4th 400, 404; People v. Yonko (1987) 196 Cal.App.3d 1005, 1010.

Fourth Holding: Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him. [See] People v. Watson (1956) 46 Cal.2d 818; People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201; People v. Schuller (2023) 15 Cal.5th 237, 260.

Fifth Holding: The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced. [See] People v. Navarro (2007) 40 Cal.4th 668, 681.

Case:  000249

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6  for failure to state a prima facie case.  Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.  

First Holding:  Senate Bill No. 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability.  The Legislature did so 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 also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant.  In its current form, 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. [See] People v. Curiel (2023) 15 Cal.5th 433, 448-449; People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.

Second Holding:  If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing.  The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. [See] PC 1172.6(c) and (d); People v. Lewis (2021) 11 Cal.5th 952, 971.

Third Holding:  At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations. [See] People v. Patton (2025) 17 Cal.5th 549, 564, 568.

Fourth Holding:  We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous. [See] People v. Ervin (2021) 72 Cal.App.5th 90, 101; People v. Eynon (2021) 68 Cal.App.5th 967, 976.

Fifth Holding:  The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity. [See] People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage].

Sixth Holding:  In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory.  Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law. [See] People v. Eynon (2021) 68 Cal.App.5th 967, 977-978; People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory].

Seventh Holding:  Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law. [See] People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]; People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer].

Case:  000250

A defendant is entitled to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. The court is  directed to recalculate the amount of custody credit he should receive.  

First Holding:  Section 2900.5 entitles a defendant to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. [See] PC 2900.5; People v. Duff (2010) 50 Cal.4th 787, 793; People v. Herrera (2001) 88 Cal.App.4th 1353, 1365. 

Second Holding:  A sentence for possession of specified weapons while confined in(or being conveyed to or from) any penal institution is to be served consecutively. [See] PC 4502.

Third Holding:  Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed. [See] PC 2900.5.

Case:  000251   

The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.  The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR.  We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.

First Holding:  Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true,  we presume the omission was deliberate and the trial court’s silence operates as a not true finding.  In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries. In evaluating the effect of the omission, our high court explained that  admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court.  If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court.  In such circumstances the silence operates as a finding that the prior conviction was not true.  Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge. [See] In re Candelario (1970) 3 Cal.3d 702.

Second Holding:  The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment.  Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony. [See] In re Candelario (1970) 3 Cal.3d 702; People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]; People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]; People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true].

Third Holding:  Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding.  As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.  And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment. [See] People v. Karaman (1992) 4 Cal.4th 335, 344; People v. Howard (1997) 16 Cal.4th 1081, 1089.

Fourth Holding:  The exceptions to the rule are limited and do not apply here.  This was not a clerical error that could be corrected at any time.  This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence).  Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction. [See] People v. Farias (2023) 92 Cal.App.5th 619, 635-636; People v. Codinha (2023) 92 Cal.App.5th 976, 1120 holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]; People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]; People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]; People v. Singleton (2025) 113 Cal.App.5th 783, 797.

Case:  000252  

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts.  Here, the record makes clear that the trial court intended to impose the statutory minimum fine.  We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:  In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.  The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense.  If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). [See] PC 1202.4(b)(1).

Second Holding:  [GARY NOTE:  The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.] [See] PC 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Case:  000253 

  Where the sentence is life without the possibility of parole, it was improper to impose a parole revocation fine, and it must be stricken.  

Holding:  A parole revocation fine may not be imposed for a term of LWOP, as the statute is expressly inapplicable where there is no period of parole.  Moreover, our Supreme Court recently recognized that the parole revocation fine statute does not apply where a defendant is given both an LWOP sentence and an indeterminate term. [See] People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Alvarez (2025) 18 Cal.5th 387, 485–486; PC 1202.45.

Not much to an Oak Titmouse’s leg. Seems to do all the bird asks of it, though.

Well, I’m not much closer to putting this site into award-winning condition. I’ve been swamped with just trying to keep up with the unpublished winning opinions. (And keep in mind, I count ANYTHING as a win if it granted even a tiny favor to the defendant, even no more than a correction in an abstract that would only make a difference in the future if someone were to rely on otherwise erroneous information. While a complete reversal with an apology is always nice, my gamut of “That’s a win!” standards is quite wide.)

I am getting a little more efficient in the steps from finding the cases to putting up the summaries, and I’m optimistic that I will find the time to put into practice and play the tips I know are readily available on the ‘net regarding what I want to implement on my site. I’ve seen a few other attorney sites and am very impressed. A few had notations that suggested to me that an expert had been hired to put it all together. It obviously paid off, in my opinion. I may consider myself lucky if I have this down pat by late spring (of this year).

Not to mention that I don’t even have readers I’m writing for yet, as I have held off reaching out and making the contacts I think will increase the traffic to my site. I probably have to do more than build it so they will come.

Summary of Summaries

The appellate court determined that the record was insufficient to warrant an electronic search condition, and remanded for the trial court to determine whether a narrowly tailored electronic search condition could be devised and justified.

The court erred in denying defendant’s petition for resentencing under section 1172.6 on his attempted murder conviction, because that crime is now included in section 1172.6 as potentially eligible for relief.

If a minor is not removed from the parents, the court has no need to state a maximum term of confinement, and to do so is an abuse of discretion.

It was error for the court to impose the upper term because of an aggravating factor (defendant’s convictions are numerous and of increasing seriousness) that was not submitted to a jury for proof beyond a reasonable doubt.

When a plea bargain specifies a specific sentence, and the defendant fails to show for the sentencing, the court cannot impose a sentence greater than agreed on, unless that consequence was made clear before the plea was entered or was part of the plea agreement itself.

Case:  000141

We agree with the defendant that Probation Condition 13 is invalid under Lent and Ricardo P. We do not agree that the Attorney General’s proposed modification cures the defect, at least not wholly.  But in accord with Ricardo P., we will vacate Probation Condition 13 and remand for consideration of whether a more narrowly tailored electronic search condition may be devised and is justified on this record.   

First Holding:  In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid.  Generally, a condition of probation will not be held invalid unless 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.  The third prong of the Lent test requires a narrow tailoring evaluation to determine whether the burden an electronic search condition imposes on the probationer’s privacy is reasonably proportionate to the risk of future criminality. [See] People v. Lent (1975) 15 Cal.3d 481; In re Ricardo P. (2019) 7 Cal.5th 1113, 1122-1123.

Second Holding:  Under Lent, the third prong reasonableness determination as explained and applied in Ricardo P. requires a case-by-case, record-specific balancing of factors.  The third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. It is insufficient to say, categorically, that electronic surveillance improves effective probation supervision.  A probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer. [See] People v. Bryant (2021) 11 Cal.5th 976, 983, 984.

Third Holding:  There must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical.  Even though a direct nexus between the search condition and underlying offense is not always required, there still must be information in a probation report that raises concerns about future criminality. [See] In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166.

Case:  000142

The defendant contends, the People concede, and we agree the superior court erred in finding that the defendant was ineligible for relief as a matter of law with respect to his attempted murder conviction because in 2022 the Legislature clarified with the enactment of Senate Bill No. 775 that relief was available for individuals convicted of attempted murder and voluntary manslaughter.  (See sec. 1172.6, subd. (a).)  We reverse the order as to his attempted murder conviction.  We remand for the court to appoint counsel and to consider the petition in light of the current provisions of section 1172.6.  

First Holding:  Senate Bill 775, effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter. [See] PC 1172.6.

Second Holding:  Once a defendant files a facially valid petition with the required statutory language and a declaration that the defendant was eligible for relief under section 1172.6, subdivision (a), the court was required to appoint counsel upon request. [See] People v. Lewis (2021) 11 Cal.5th 952, 962-963.

Case:  000143

The court erred in setting a maximum confinement time when he was released home on probation.  We will strike the maximum confinement term and affirm the judgment as modified.  

First Holding:  It is abuse of discretion for a juvenile court to set a maximum confinement term for a minor who is not removed from his parents’ custody. [See] In re A.C. (2014) 224 Cal.App.4th 590, 591-592 [where a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term].

Second Holding:  [GARY NOTE, for context, W&I section 726 states, in pertinent part, that IF a minor is removed from the custody of the parents, the court must state the maximum term, which the section also defines.] [See] W&I 726.

Case:  000144

The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).  

First Holding:  It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant.  With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt.  A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. [See] PC 1170; People v. Lynch (2024) 16 Cal.5th 730, 747; Erlinger v. United States (2024) 602 U.S. 821; Cunningham v. California (2007) 549 U.S. 270; People v. Wiley (2025) 17 Cal.5th 1069, 1085.

Second Holding:  Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, a  judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. [See] Erlinger v. United States (2024) 602 U.S. 821, 838.

Third Holding:  Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal.  The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.  Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.  The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.
 [See] People v. Scott (1994) 9 Cal.4th 331, 352–353; People v. McCullough (2013) 56 Cal.4th 589, 593; People v. French (2008) 43 Cal.4th 36, 46.

Fourth Holding:  An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.  Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion.  Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right.  Here, the defendant initially requested a jury trial.  Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury.  Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal. [See] People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; People v. McCullough, (2013) 56 Cal.4th 589, 593.

Fifth Holding:  But even assuming the forfeiture rule applies, we exercise our discretion to address the issue.  Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture. [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 327; z People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions].

Sixth Holding:  When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.    Under that standard, a sentence must be reversed unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied, or that those facts were otherwise proved true in compliance with the current statute.  Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.
 [See] People v. Lynch (2024) 16 Cal.5th 730, 742–743; Chapman v. California (1967) 386 U.S. 18; People v. Wiley (2025) 17 Cal.5th 1069, 1087.

Case:  000145

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea.  Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.  

First Holding:  The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain.  At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and  if he failed to appear, the court would impose a higher term upon his apprehension.  The defendant agreed to the waiver.  He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term.  This was error. [See] People v. Cruz (1988) 44 Cal.3d 1247, 1249.

Second Holding:  When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.  If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so.  The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [See] PC 1192.5.

Third Holding:  A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent. [See] People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.

Fourth Holding:  A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5.  A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement.  (Id. at pp. 1223-1224.)  When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction. [See] People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224.

Fifth Holding:  Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege.  No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights.  Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal. [See] People v. Silva (2016) 247 Cal.App.4th 578, 589; People v. Walker (1991) 54 Cal.3d 1013, 1024-1025; People v. Cruz (2013) 219 Cal.App.4th 61, 65.

Sixth Holding:  A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea.  Defendant did not agree, as part of the plea agreement, to the six-year term.  That term was imposed after his plea.  Under these circumstances, a certificate of probable cause is not required. [See] People v. Vargas (2007) 148 Cal.App.4th 644, 651.

Where’d we put our tobaggan?

I’m a hoarder, of sorts. Probably mostly in writing. Once I’ve written something, I don’t like to discard it permanently, because I never know when it will be exactly the thing I was looking for in a different context. And probably three times in my life I have found “that” very thing when I needed it much later than I had written it. (Three is apocryphal, but represents “I don’t know how many times, but certainly no more than fewce.”)

So I’m struggling a bit. (And when you read my struggle, you’ll realize how easy my life has been.) I’ve been collecting and preparing summaries of unpublished victory opinions since late October 2025. Before I even had an inkling of how to do a blog. (I’d say even before I knew how to do a WordPress website, but I’m not sure when I’ll ever be able to say “Oh yeah, I know how to do a website.” It reminds me of a scene in a very successful 1960’s sitcom in which the husband, after his wife’s first contraction, asked her how far apart the contractions were.)

My process in the beginning was to record basic info (case name and its court number and opinion date), assign an anonymizing case number (e.g., Case 000134), and then copy the salient points and citations and paste them into a few holding areas in my database. My first Post was December 7, 2025, by which time I had summarized (in my database) more than 170 cases. (I’m in the mid-400s today, and as you can tell from the case numbers in today’s batch, I’ve posted only 130-ish of them.) It was a few weeks later before I developed a much more efficient method of getting the summary in shape for posting. By then I’d summarized 245 or so, of which I had posted 60. Today brings me up to roughly under 130 posted. So I have around 115 summaries I created under the less-efficient method. To put them into postable condition will take at least twice as long, some likely three times as long, as the ones I have since prepared more efficiently.

And that’s where my hoarding nature gets in my way. Rational thinking: No reader is going to miss those 115 inefficiently-assembled cases. Everything is anonymized anyway, and you likely wouldn’t even ever know they existed. They all do contain gold, but one of my points for summarizing unpublished cases in the first place is that unpublished opinions are usually unpublished because they cover rulings on errors that occur over and over and do not need a published opinion to settle the questions. So rationally, I should just set those four score and 35 opinions aside and start finishing for posting the cases I summarized more efficiently. I can even adjust the Case Numbers so there won’t be any obvious gap, right?

Irrational thinking: “But I did the work! I gotta finish ’em.”

Compromise I’m considering: Start posting only the efficiently done summaries, but hang onto the old ones, and slip them in occasionally when it seems opportune.

So I’m going to run a poll by email. Choose either (a) Rational thinking or (b) Irrational thinking. (If the former wins out, the Compromise will likely be what I do, rather than simply trash the inefficiently-done 115.) To vote, send me an email indicating your recommendation. The poll closes one week from the date of this post. You can find my email on my About me page, under the Maybe I Can Help title. Note that you cannot simply copy and paste it or click on it as a link. You need to put it into email format, which is, in this instance, myfirstname.mylastname@mydomain.com. Don’t forget the period between my names. (And unless you instruct me to keep your “From:” email address, I will delete it and your email containing your vote. I will not release it to anyone, regardless.)

Summary of Summaries

On recall of the sentence under 1170(d) on a juvenile tried as an adult, the trial court erred in believing jurisdiction expired at age 25, rather than within two years of the disposition hearing (i.e., the hearing on the recalled commitment).

Because the resentencing resulted from an order in a prior appeal to strike the prior prison terms, the defendant’s resentencing was not under section 1172.75, and it was error to reimpose the upper term on factors not proven beyond a reasonable doubt to a jury.

Another case where it appears that the defendant is not eligible for recall of sentence under 1172.6 based on the record the court reviewed at the prima facie stage, but was remanded to give him a chance to file an amended petition to overcome what appears to be the problem from the record.

Section 654 applied to prohibit punishment on more than one count for a single act or course of conduct of driving his car and causing injury.

Because of amendments to W&I section 730.6 while the juvenile proceedings were on appeal, the minor’s restitution fine was stricken.

Case:  000134

In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17.  In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d).  The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court.  The court granted the motion, and appellant challenges that ruling on appeal.  We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue. 

First Holding:  In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.  The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old.  The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25.  However, the court was incorrect.  The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707.  In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case. [See] W&I 707(d). 

Second Holding:  When the appellant presents an issue of statutory interpretation, we review it de novo [See] In re Noah S. (2021) 67 Cal.App.5th 410, 414.

Third Holding:  Reversal is required unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.  Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness.  Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25.  It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25. [See] People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.

Fourth Holding:  In order to transfer a minor from juvenile court to criminal court, the court must “find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. [See] W&I 707(a)(3).

Case:  000135

On resentencing under section 1172.75, the court erred in imposing the upper term on factors that had not been proved to a jury beyond a reasonable doubt.  

First Holding:  A criminal judgment does not become final for purposes of In re Estrada (1965) 63 Cal.2d 740 when an appellate court affirms a conviction, but leaves sentencing issues pending before the trial court following remand.  During the resentencing on remand, the benefits of supervening ameliorative legislation apply retroactively. [See] People v. Lopez (2025) 17 Cal.5th 388, 392; In re Estrada (1965) 63 Cal.2d 740.

Second Holding:  Absent waiver or stipulation, aggravating factors such as the increasing seriousness of a defendant’s prior convictions and unsatisfactory performance on probation must be found true beyond a reasonable doubt by a jury before those facts can be used to justify an upper term sentence. [See] PC 1170; People v. Wiley (2025) 17 Cal.5th 1069, 1082.

Third Holding:  This case must be distinguished from People v. Brannon-Thompson, which found that the plain language of section 1172.75(d)(4) indicated the Legislature intended the new burden of proof amendments to section 1170(b) to apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing.  In this case, the defendant was not being resentenced after a prior sentence that imposed an upper term was recalled.  Instead, he was on remand from the prior appeal directive to strike prior prison term enhancements before section 1172.75 even went into effect (which the court did).  As such, when the trial court proceeded to resentence defendant in 2023, his sentence already lacked any enhancements imposed pursuant to former section 667.5(b).  Defendant accordingly was not eligible for resentencing under section 1172.75 in 2023, making the provision inapplicable.  Instead, appearing for resentencing based on a remand in the prior appeal, the defendant was entitled to the benefits of supervening ameliorative legislation, including the new evidentiary standards of section 1170(b). [See] PC 1170(b); People v. Lopez (2025) 17 Cal.5th 388; People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455.

Case:  000136

We find that in making the prima facie determination, the trial court properly reviewed the preliminary hearing and partial trial transcripts as part of the record of conviction, completely independent from the factual basis stipulation at the plea hearing, to find defendant was the actual killer and ineligible for resentencing under section 1172.6.  Defendant’s contrary claims, including his alleged “immunity” and ineffective assistance arguments, are refuted by the record.  As in Patton, however, we grant defendant’s request to remand the matter for him to have the opportunity to file a supplemental petition in the trial court.  

First Holding:  We begin with the provisions of section 1172.6.  Effective January 1, 2019, Senate Bill No. 1437 amended the felony-murder rule by adding section 189, subdivision (e).  It provides that a participant in the qualifying felony is liable for felony murder only if the person:  (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.  The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime. [See] People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022) 13 Cal.5th 698, 707–708; People v. Reyes (2023) 97 Cal.App.5th 292, 295.

Second Holding:  While this appeal was pending, the California Supreme Court decided Patton and held that in making the prima facie determination as to whether a petitioner, who entered a plea instead of going to trial, was convicted under a now-invalid imputed malice theory of homicide in a section 1172.6 petition, the trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition.  It disapproved of appellate decisions that conditioned the use of preliminary hearing transcripts to make the prima facie determination on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea.  It affirmed the trial court’s denial of the section 1172.6 petition in that case but granted the defendant’s request to remand the matter for the opportunity to file an amended petition consistent with the Supreme Court’s ruling. [See] People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 569-570.

Third Holding:  As relevant herein, the petitioner must declare (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine.  (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.  (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019. [See] PC 1172.6(a)(1)–(3); People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 558.

Fourth Holding:  When a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner.  The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred. [See] People v. Reyes (2023) 97 Cal.App.5th 292, 298; People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 559.

Fifth Holding:  The amendments to sections 188 and 189 did not invalidate murder convictions based on the theory that the defendant was the actual killer.  Where the record of conviction shows the defendant was the actual killer, he was not convicted under a now-invalid imputed malice theory and is ineligible for relief as a matter of law, and no evidentiary hearing is required.  If the trial court commits error in making the prima facie finding to deny the petition without an evidentiary hearing, the error is harmless if the defendant is ineligible for resentencing as a matter of law. [See] People v. Strong (2022) 13 Cal.5th 698, 707; People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167; People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Garcia (2022) 82 Cal.App.5th 956, 973; People v. Lewis (2021) 11 Cal.5th 952, 973–974.

Case:  000137

As we explain below, we agree that the trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654.  In all other respects, we affirm the judgment.  

First Holding:  An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.  Therefore, section 654 prohibits multiple punishment for offenses committed during a single or indivisible course of conduct. [See] PC 654; People v. Hester (2000) 22 Cal.4th 290, 294; People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208.

Second Holding:  Section 654 prohibits the imposition of concurrent sentences for offenses committed during a single or indivisible course of conduct.  The accepted procedure for such offenses is to sentence defendant for each count and stay execution of sentence on certain counts to which section 654 is applicable. [See] People v. Jones (2012) 54 Cal.4th 350, 353.

Third Holding:  The trial court erred by imposing punishment for both count 2 and count 3 because both offenses arose out of a single or indivisible course of conduct.  Both counts 2 and 3 were committed during the defendant’s single or indivisible course of conduct of driving his car and causing injury to one victim.  Therefore, section 654 prohibits punishment of the defendant for both counts.  Because under amended section 654, the trial court has discretion whether to punish the defendant for either count 2 or count 3, we reverse its imposition of punishment for both counts and remand the matter for the limited purpose of resentencing him on count 2 and count 3. [See] PC 654.

Case:  000138

The minor contends, and the People concede, that recent amendments to [W&I] section 730.6 apply retroactively, requiring that the restitution fine imposed by the juvenile court be stricken.    

First Holding:  While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602. [See] W&I 730.6.

Second Holding:  Appellant is entitled to the ameliorative benefits of this amendment. [See]  In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal].

I guess I don’t understand the Back East. I read that the rodent detected its shadow on February 2. The article said that means there will be six more weeks of winter. I thought, “Hooray! An early spring!” But then the article quoted from interviews the disappointment, because it meant there was going to be six more weeks of winter, which apparently was a bad thing. Huh? Were they hoping for more, and were disappointed? By the calendar I keep out here on or near the West Coast, six weeks from February 2 is March 16. (Or, in leap years, the Ides of March!) And my calendar says spring starts on March 20 this year. So the sign of the rodent tells me spring is early this year. Isn’t that a GOOD thing? Why be disappointed? Well, I thank my lucky stars I’m not superstitious. And can add.

Summary of Summaries

The court finds a condition of probation too vague, and remands for the trial court to either strike the condition or specify the type of program to which the defendant may be subject.

Another instance where the abstract of judgment is incorrect, and the trial court failed to update the custody credits.

On resentencing, the court must exercise its discretion as expected under section 1385, and it must determine whether the gang criminal activity enhancements past muster under recent amendments.  (I also toss in a reference to PC 1016.7, a new obligation on prosecutors in plea bargaining.)

I included a case that found the error harmless and affirmed completely.  But I thought it laid out nicely the concept of implied malice for an aider and abettor to a murder, so I included it anyway.

Where the evidence did not quite support the greater offense, the appellate court has the authority to reduce it to a lesser included offense.

Case:  000129

We find that the nature of the required program is impermissibly vague in the condition of probation that the defendant “enter into and continue such education, psychological, psychiatric, drug, alcohol, or other rehabilitation program as directed by the probation officer or as specifically ordered as a term of probation, and shall not leave or terminate such programs without the permission of the probation officer.”

First Holding:  Applying de novo review, we address each challenge to a probation condition separately. [See] People v. Smith (2022) 79 Cal.App.5th 897, 902.

Second Holding:  It is the court’s duty to determine the nature of the requirements imposed on the probationer.  Although a probation condition need not be set forth with mathematical certainty, the language used must have reasonable specificity.  Here, such specificity is lacking.  The program choices for the probation officer are open-ended, ranging from education to psychological and psychiatric to drug, alcohol, or other rehabilitation.  This is too vague to pass muster, and we cannot interpret it more narrowly in light of other probation conditions, the probation report, or the trial court’s commentary.  Without meaningful guidance from the record, the open-ended program condition cannot be saved by permitting the probation department to provide the necessary specificity. [See] People v. Smith (2022) 79 Cal.App.5th 897, 902; Sheena K. (2007) 40 Cal.4th 875, 890; People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358.

Case:  000130

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits. 

First Holding:  The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees. [See] [GARY NOTE:  The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so.  See, e.g., People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors in the abstract of judgment].]

Second Holding:  As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees. [See] People v. Tillman (2000) 22 Cal.4th 300, 303.

Third Holding:  When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [See] [GARY NOTE:  the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the following authorities Ieven though not expressly relied on by the court:  People v. Buckhalter (2001) 26 Cal.4th 20, 37; PC 2900.1; PC 2900.5.]

Case:  000131

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement.  The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement).  We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.  

First Holding:  The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.  We review associated questions of statutory construction de novo.  Whether a statute applies retroactively is a question of statutory construction we review de novo.  We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). [See] People v. Lopez (2025) 17 Cal.5th 388, 396; People v. Burke (2023) 89 Cal.App.5th 237, 242; People v. Brown (2012) 54 Cal.4th 314, 319; People v. Walker (2024) 16 Cal.5th 1024, 1033. 

Second Holding:  Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.  In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present.  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. [See] PC 1385.

Third Holding:  Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present.  In other words, if the court does not find that dismissal would endanger public safety, 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. [See] People v. Walker (2024) 16 Cal.5th 1024.

Fourth Holding:  The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22.  The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.”  Those elemental changes apply retroactively to all nonfinal cases such as this one. [See] PC 186.22(e)(1), (g); People v. Tran (2022) 13 Cal.5th 1169, 1207; In re Estrada (1965) 63 Cal.2d 740, 745.

Fifth Holding:  Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent.  Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise.  Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply.  The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. [See] Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230; People v. Burgos (2024) 16 Cal.5th 1, 7; In re Estrada (1965) 63 Cal.2d 740; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.

Sixth Holding:  If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well.  In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges. [See] People v. Stamps (2020) 9 Cal.5th 685, 707-708; People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256; Mendoza v. Superior Court (2023) 91 Cal.App.5th 42.

Seventh Holding:  Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive.  It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether. [See] People v. Burgos (2024) 16 Cal.5th 1, 13.

Case:  000132

[GARY NOTE:  No relief was granted, because of harmless error.  The gold here rests in the relative clarity in which the principles of implied malice were set out by the court.]  The trial court instructed the jury incorrectly on implied malice and aiding and abetting implied malice murder.  However, we find the error harmless beyond  reasonable doubt.  If anything, the defect in CALCRIM No. 401 only made it harder for the jury to find defendant guilty.  It would have been easier for the jury to find that defendant knew that the co-defendants intended to commit a life-endangering act than to find defendant knew they intended to commit murder, a life-ending act.  

First Holding:  Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.  Implied malice contains an objective or physical component and a subjective or mental component. [See] People v. Knoller (2007) 41 Cal.4th 139, 143; People v. Nieto Benitez (1992) 4 Cal.4th 91, 106.

Second Holding:  To be liable for an implied malice murder, a direct aider and abettor must aid the perpetrator in committing a life endangering act that proximately causes death. [See] People v. Reyes (2023) 14 Cal.5th 981, 990-991; People v. Powell (2021) 63 Cal.App.5th 689, 712-713.

Third Holding:  Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [See] People v. Hillhouse (2002) 27 Cal.4th 469, 503.

Fourth Holding:  Defendant’s jury was incorrectly instructed under CALCRIM No. 401 to determine whether defendant aided and abetted the perpetrators’ commission of a crime, not an act.  Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea.  In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act.  For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act.  Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.  The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life. [See] People v. Reyes (2023) 14 Cal.5th 981, 991; People v. Powell (2021) 63 Cal.App.5th 689, 712-713; People v. McCoy (2001) 25 Cal.4th 1111, 1122.

Fifth Holding:  The instruction given was thus an erroneous aiding and abetting instruction for purposes of this case.  We review the error under the Chapman harmless error standard. [See] People v. Powell (2021) 63 Cal.App.5th 689, 714-715; Chapman v. California (1967) 386 U.S. 18, 24.

Case:  000133

We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.

First Holding:  In considering the sufficiency of evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  We also accept logical inferences that the jury might have drawn from the circumstantial evidence.  We do not resolve credibility issues or evidentiary conflicts. [See] People v. Osband (1996) 13 Cal.4th 622, 690; People v. Baker (2021) 10 Cal.5th 1044, 1103; People v. Young (2005) 34 Cal.4th 1149, 1181.

Second Holding:  In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime.  Rather, the victim must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy).  Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.”  [See] People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316.

Third Holding: The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.” As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim. We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however. [See] People v. Soto (2011) 51 Cal.4th 229, 246; People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]; People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073; People v. Veale (2008) 160 Cal.App.4th 40, 44, 47; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.

Fourth Holding:  A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense. [See] People v. Williams (1945) 27 Cal.2d 220, 226; PC 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]; People v. Maury (2003) 30 Cal.4th 342.

Fifth Holding:  A lesser offense is necessarily included in a charged offense if one of two tests is met:  either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “ elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed  (the “accusatory pleading test”).  We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other. [See] People v. Lopez (1998) 19 Cal.4th 282, 288–289; People v. Cheaves (2003) 113 Cal.App.4th 445, 454; People v. Ortega (1998) 19 Cal.4th 686, 698.

Sixth Holding:  Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence. [See] People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225; People v. Navarro (2007) 40 Cal.4th 668, 677; PC 1181; PC 1260; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act].

Seventh Holding:  We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious.  An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered.  The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review.  The burden is on the party seeking restitution to provide an adequate factual basis for the claim. [See] People v. Gomez (2023) 97 Cal.App.5th 111, 116.

You put your right foot in, you put your ….

I still haven’t made any progress in gussying up the website. I am, however, finding I have a little more time than when I was trying to get everything done in a day.

As with so many things, it’s important to stick to the mission. I have chuckled sometimes when I read some companys’ mission statements (particularly in the nonprofit arena, though perhaps I’m being unfair, because those are the ones I tended to study). Some really more resemble mottos. “We’re gonna do good.” Well, that’s an admirable goal we should all strive to meet, right?

But how does it guide what the company plans to do? Particularly if it is a relatively small company with resources far more limited than those whose balance sheets require decimals (maybe with an explanatory footnote “numbers are in billions”] because there’s no room on the page to include the googol of zeroes.

A mission statement needn’t be a grand bland statement that impresses the impressionable. I don’t want to get into trouble by citing specific advertising blurbs that make attractive promises to lure us in, but I’m sure we can all think of some. We’re made promises by various services and merchandise providers such that, if they were actually kept, there will never be any hitches and we will live out our lives worry free. (Maybe some really do, but ….) Those aren’t mission statements, those are feel-good-about-us assurances. And to be fair, they probably are NOT really the mission statements, just advertising slogans.

The mission statement will be something against which company decisions are compared to see whether the actions contemplated fall within the boundaries set forth in that guide. It can be broad. “This company will make as much profit as it can in any way it can.” Or it can be more focused. “This company will provide low-cost food, clothing, and shelter to those in need.”

The former would likely need to be a company that has money pouring in left and right, with decision makers who can spot a profit-making opportunity every which way including loose.

The latter would likely curtail the desire to start a low-cost medical clinic for those in need. While a worthy goal (in my opinion, anyway), it’s outside the mission of that company. If it has been drawing revenue to support its food, clothing, and shelter program, and has incurred expenses to achieve that mission, where are the funds for and what are the human resource logistics of expanding to include a medical clinic?

A mission statement can change, of course, but it should be the product of a deliberate decision after examination of “can we really do this?”

So to my point, what is my mission in this blog? I want to bring out snippets of legal principles that may be missed when counsel is paying close attention to substantive fact-specific legal scenarios. I can include “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.” But I don’t really have to go through the facts to show why the testimony of Witness X should be considered sufficient or insufficient to support that standard.

(By the way, for those of you who do not dabble in appellate matters, the appellate courts seem to expect counsel to guide them on how they are to review the issues. And while one would LIKE to think that the courts already know–they are the ones who usually decide what the standard of review is, after all–there is value beyond complying with their expectations, because you may be able to make a case for the standard of review that most benefits your client. At the very least, you don’t want the appellate court to assume the standard requires the court to give great deference to whatever the lower court did if the true standard of review requires the appellate court to revisit the case de novo (i.e., exercise its own independent judgment rather than assume that the lower court got it right).

The more extensive discussion might be helpful to someone actually writing a motion or a brief, but it really goes beyond the level of detail I want to provide in this blog. If you have a case with those substantive problems, my blog should help you quickly determine WHAT the standard is, but then you need to do research to find case law with facts and legal statements helpful to your client.

(And I’m not sure my blog would be helpful at all if you aren’t copying and pasting the snippets into a searchable system you’re keeping for just such occasions, but that’s a discussion for another day.)

Remember my admonition anyway: Do NOT trust, verify! I’m not writing a brief as I review these cases. I’m not reading each case fully or several times. I’m getting what I think is the gist from a somewhat-quick read. I’m not going beyond what is in the opinions to see whether the cases cited therein fully support the principle espoused by the appellate court. In context, I’m sure they do. But some of the cases cited in the unpublished opinions (or in any, for that matter) might actually assert a different principle that should be compared with how it is applied in the decision I’m reading. Not to mention, but I will anyway, I could have just flat out misread the opinion. So you should NOT rely on me. I’m pointing, but go to that to which I point to see what it really says.

So all of this blathering is really probably more to my benefit than to yours. How am I going to meet my mission AND have hours left over in the week? I can do it, and I appreciate your patience as I sort through it all. (Not that I actually have any readers at the moment, but hey.) It’s just going to require me to experiment, to see how I can get to you what I think might be helpful to you, and yet also have a life.

Summary of Summaries

The court determined that a superficial laceration does not give rise to enhancement under section 12022.7 for infliction of great bodily injury.

Though the facts are not stated, apparently the defendant was incarcerated and must have asked his attorney to file a notice of appeal, but did not discover that none had been filed until after the time to file a notice of appeal had expired.

At the evidentiary hearing under section 1172.6, the court, as the independent fact finder, must engage in determining credibility of witnesses.

On sentencing, the trial court should have reexamined the prior serious felony conviction enhancement based on gang criminal activity to see whether it still constitutes a prior serious felony under the amendments to the gang criminal activity statutes by AB 333, and the issue was not forfeited.

It was error for the court to rely on its own determination that the defendant’s prior convictions were numerous to impose the upper term.

Case:  000124

A jury convicted the defendant of two counts of assault with a deadly weapon and found true that he personally inflicted great bodily injury in the commission of those counts.  We conclude the injury to the victim in count 2, which the emergency room doctor described as a “superficial laceration,” is not sufficient to support the enhancement under section 12022.7, subdivision (a).  Consequently, we reverse the true finding, strike the one year imposed under section 12022.7, subdivision (a), associated with count 2, and remand for resentencing to allow the trial court to exercise its discretion anew with the changed circumstance.

First Holding:  Great bodily injury is an injury that is greater than minor or moderate harm. [See] People v. Wyatt (2012) 55 Cal.4th 694, 702; People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]; People v. Martinez (1985) 171 Cal.App.3d 727, 735–736 [evidence of superficial lacerations held not sufficient to prove great bodily injury].

Second Holding:  We review a challenge to the sufficiency of the evidence supporting a jury’s true finding on a section 12022.7(a) enhancement under the same standard that applies to a challenge to the sufficiency of the evidence to support a conviction. In considering a sufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  Substantial evidence is evidence that reasonably inspires confidence and is of solid value. [See] People v. Escobar (1992) 3 Cal.4th 740, 750; People v. Collins (2025) 17 Cal.5th 293, 307.

Third 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. [See] People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term].

Case:  000125

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing.  Granted. 

Holding:  Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely. [See] In re Benoit (1973) 10 Cal.3d 72, 81–82.  

[GARY NOTE:  All of the following rules and cases are provided by GARY and did not appear in the opinion, but are important enough to mention.]  

In Felony Cases, in part:  Rule 8.308–Time to appeal. (a) Normal time.  Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

In Misdemeanor Cases, in part:   Rule 8.393.   Time to appeal.  A notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal.]  [See]  In re G.C. (2020) 8 Cal.5th 1119; People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.].

Case:  000126

It appears the trial court, in finding that the defendant is guilty of murder under current law, misunderstood that its role as independent fact finder entailed weighing witness credibility.  We therefore remand the matter for a new evidentiary hearing under section 1172.6, subdivision (d).  At that evidentiary hearing, the defendant may again raise any contention regarding witness credibility, which the trial court must then rule on in deciding whether the defendant is guilty of murder under current law.  

First Holding:  The trial court’s role at the evidentiary hearing under section 1172.6 is to act as an independent fact finder and determine, in the first instance, whether the petitioner committed murder under the law as amended by Senate Bill No. 1437. [See] People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.

Second Holding:  The statute’s plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt.  A fact finder tasked with holding the People to the beyond a reasonable doubt standard must impartially compare and consider all the evidence that was received throughout the entire trial and determine whether that proof leaves it with an abiding conviction that the charge is true. Unlike the prima facie stage where the trial court should not decide unresolved factual issues that involve credibility determinations or weighing of evidence, the court should decide such issues after issuing an order to show cause and holding an evidentiary hearing. [See] People v. Clements (2022) 75 Cal.App.5th 276, 294-296; People v. Harden (2022) 81 Cal.App.5th 45, 51.

Case:  000127

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699) (AB 333).

First Holding:  Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under subdivision (c)(28) of section 1192.7 for purposes of the Three Strikes law and prior serious felony enhancements. [See] People v. Fletcher (2025) 18 Cal.5th 576.

Second Holding:  By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher.  The defendant’s argument is therefore not forfeited. [See] People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]; People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine.  It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below].

Case:  000128

The defendant is entitled to a jury trial on two of the aggravating factors the trial court found to be true in the present case.  He entitled to resentencing due to prejudicial error, and we remand the matter for that purpose.

First Holding:  The trial court erroneously imposed the upper term by relying on its own determination that the defendant’s two prior convictions were numerous.  The defendant was entitled to have a jury decide that issue beyond a reasonable doubt. [See] People v. Lynch (2024) 16 Cal.5th 730, 742-743; People v. Wiley (2025) 17 Cal.5th 1069, 1076; People v. Berry (1981) 117 Cal.App.3d 184, 191 [two prior convictions cannot be numerous].

Second Holding:  In assessing a defendant’s ability to pay, a court may consider a defendant’s past income-earning capacity.  Moreover, a court may consider whether a defendant has the ability to satisfy the fine and assessments through prison wages and future earnings after release from custody. [See] People v. Johnson (2019) 35 Cal.App.5th 134, 139; People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.