Author: Gary

For the equinophiles who claim there’s no such thing as two mini horses.

Nearly 100 down, no one knows how many to go. (I say “nearly” a hundred, because I did not post a summary for a few cases that I had initially numbered, primarily because I goofed in assigning a number to something unqualified for inclusion.) I’m now fully retired from CCAP, and I’d think I’d have more time to learn the few or many tricks I need to make this website more functional. But somehow I don’t feel like I have any more time than I had before I retired. Carving out the time seems a bit like bailing out the Merced River at the base of Vernal Falls. Something else immediately fills the spot vacated by the bucket of water.

So I’m still looking into how to add a meaningful search engine. I could break down and pay someone either to do it for me or to teach me. (You know the saying: “Teach a person to fish and that family will eat for the day; teach the person HOW to fish and suddenly the person will expand, engage in hostile takeovers of the entire regional fishery business, undersell competitors to drive them out of business, and then sell barely palatable osteichthyes at ridiculously high prices because it’s the only provider of fish and fish byproducts within hundreds of leagues.”)

But it’s a little like do-it-myself plumbing. I look at the problem for a few hours, then try to puzzle out a solution. What parts will I need, do I have the tools, do I know what I’m doing? Then I give it the old college try. Then I call a plumber.

For now, I’m going to ponder the website problem some more, figure that there is undoubtedly information online that would walk me through the exact steps, give it shot (probably only to learn that no, MY version of whatever is not quite the same as the version in the instructions, which makes all the difference in the world), and eventually come up with a solution (which may involve spending a little moolah for help from someone who actually does know what to do).

Along the way, though, I also recognized that I should probably reduce the number of cases per post. Depending on what I am able to do for a search feature. If a search for a term simply takes one to the post containing that term, one would have to do a long reading of the page to find the relevant case. (Using the web browser’s “find on page” feature would be useful, I suppose.) If I continue to try to put a single day’s relevant cases into one post, it quickly becomes a tome.

On the day I’m drafting this post, for example, I have downloaded 14 opinions that granted some form of relief to a defendant. If you’re reading a post of 14 cases on your smartphone while driving and suddenly slam on your brakes because you see a gendarme eyeing your miscreancy, you’ll likely lose your place on the page and have to scroll several times to get to where you left off. Can’t have that, now, can we?

So I’m considering breaking a post up into groups of no more than five or so cases per post. Or maybe just four. I have to give it more thought.

On the other hand, if the search feature takes the person right to the word in the article, voila! (I do not plan to install any search products–apparently called plug-ins or widgets–that also capture personal information from the user, so I may be stuck with something less glamorous than someone has already invented that does everything.)

Enough newsreel. Let’s look at coming attractions and then run the movie.

Summary of Summaries

We see again that abstracts of judgment and minutes must actually reflect the judgment.

There’s a pretty elaborate discussion on how to abide by PC 1385 when considering whether to lower a sentence.

What happens when a judge forgets to dismiss a count in keeping with the plea agreement?

What is the procedure when PC 654 (barring multiple punishment for a single act that can be and has been charged in different ways) applies?

The Movie

Case:  000101

The abstract of judgment must be modified to reflect the court’s oral pronouncement of judgment.  The abstract of judgment as it relates to the sentence should be corrected to reflect that counts 2 and 4 were stayed. 

Holding:  When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. [See] People v. Jones (2012) 54 Cal.4th 1, 89.

Case:  000102

In 2022, defendant was resentenced under Penal Code  section 1172.75 and the trial court struck seven years from his determinate term.   Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety.  We agree and accordingly vacate defendant’s sentence and remand for a full resentencing. 

First Holding:  Section 1385, subdivision (c)(1) states, in relevant part, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so.”  Section 1385, subdivision (c)(2) provides:  “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 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.  ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [See] PC 1385.

Second Holding:  We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion.  An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it. [See] People v. Mendoza (2023) 88 Cal.App.5th 287, 298; In re White (2020) 9 Cal.5th 455, 470; People v. Gonzalez (2024) 103 Cal.App.5th 215.

Third Holding:  The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement. [See] People v. Williams (2018) 19 Cal.App.5th 1057; People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229.

Fourth Holding:  Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry.  When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced.  A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s. [See] People v. Williams (2018) 19 Cal.App.5th 1057, 1063.

Case:  000103

Our independent review of the record discloses that the trial court inadvertently failed to dismiss one of the charged counts after accepting the defendant’s no contest plea to the remaining counts.  We shall modify the judgment to reflect dismissal of that count. 

 First Holding:  Because the court may not proceed as to the plea other than as specified in the approved plea, the court’s silence at the sentencing hearing regarding dismissal of a count was not an exercise of judicial discretion but rather a clerical error in the record of judgment.  [See] PC 1192.5; In re Candelario (1970) 3 Cal.3d 702, 705; People v. Panizzon (1996) 13 Cal.4th 68, 80 [parties must abide by the terms of the plea agreement, including the dismissal of other counts].

Second Holding:  The record of the oral pronouncement of the court controls over the clerk’s minute order, which may not modify the judgment it purports to digest. [See] People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185.

Case:  000104

We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654.  Accordingly, we modify the judgment to stay the sentence on the second of those two counts. 

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.  An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.  Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct. [See] PC 654; People v. Harrison (1989) 48 Cal.3d 321, 335.

Second Holding:  Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.  This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal.  This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. [See] People v. Hester (2000) 22 Cal.4th 290, 295.

Third Holding:  The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.  Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here. [See] People v. Jones (2012) 54 Cal.4th 350, 353.

Fourth Holding:  An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed.  An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances. [See] PC 1260; People v. Alford (2010) 180 Cal.App.4th 1463, 1473.

Case:  000105

The trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.  

First Holding:  Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law.  This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.  Whether a course of conduct is indivisible depends upon the intent and objective of the actor.  If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one [See] People v. Corpening (2016) 2 Cal.5th 307, 309; People v. Perez (1979) 23 Cal.3d 545, 551.

Second Holding:  Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal.  However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review. [See] People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603; People v. Goode (2015) 243 Cal.App.4th 484, 493; People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim].

Third Holding:  A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [See] People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.

Ew, guys, I stepped in something!

Well, a couple of the summaries today are mighty long, but I thought they covered in some depth some important concepts. For example, in case 000095, there is a very nice discussion of what is necessary to aggravate a simple kidnapping into a more aggravated kidnapping (which carries a greater sentence) in the context of movement. Is a few feet enough? Is there a minimum distance? Is there a distance at which simply the distance itself constitutes aggravation?

And in case 000096, we see some examples on the elements the court is required to consider under Penal Code 1385 regarding dismissing aspects of the sentence under various circumstances. I think examples are nice, because they are something we can point to and say “See? THAT court did it!”

On the menu today, we’re offering

Kidnapping vs aggravated kidnapping.

Exercise of discretion to dismiss in the furtherance/interest of justice (in at least two of the cases).

Another instance of a need to update credit for time served.

More errors in failing to follow the procedure required under section 1172.6 (recall of sentence in light of changes in homicide law).

Failure to take a proper waiver of the constitutional right to have a jury determine most factors in aggravation results in a do-over.

Case:  000095

We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace, and remand for a full resentencing. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.  

First Holding:  Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense.  The increased risk may be of either physical or psychological harm. [See] PC 209, subd. (b)(1)–(2); People v. Rayford (1994) 9 Cal.4th 1, 11–12; People v. Waqa (2023) 92 Cal.App.5th 565, 577; People v. Nguyen (2000) 22 Cal.4th 872, 886.

Second Holding:  In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.  Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law.    An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will. [See] People v. Williams (2017) 7 Cal.App.5th 644, 671.

Third Holding:  Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated. [See] People v. Hin (2025) 17 Cal.5th 401, p. 470.

Fourth Holding:  If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209.  Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business.  It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected.  Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial.  Each case must be considered in the context of the totality of its circumstances. [See] People v. Daniels (1969) 71 Cal.2d 1119, 1140; People v. Power[(2008)] 159 Cal.App.4th 126, 139; People v. Leavel (2012) 203 Cal.App.4th 823, 834; People v. Dominguez (2006) 39 Cal.4th 1141, 1152; People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery].

Fifth Holding:  In general, to prove the crime of simple kidnapping, the prosecution must prove three elements:  (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [See] People v. Hartland (2020) 54 Cal.App.5th 71, 77.

Sixth Holding:  Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.  [See] PC 1181, subd. 6; PC 1260; People v. Bailey (2012) 54 Cal.4th 740, 748; People v. Ellis (2025) 108 Cal.App.5th 590, 601; People v. Buycks (2018) 5 Cal.5th 857, 893.

Seventh Holding:  Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.   [See] People v. Navarro (2007) 40 Cal.4th 668, 671.

Case:  000096

Because the superior court applied an incorrect legal standard in deciding whether to dismiss the five year enhancement, we reverse the judgment and direct the court to exercise its discretion whether to strike that enhancement and to resentence the defendant.

First Holding:  By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements. [See] People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223.

Second Holding:  We conclude the superior court erred by applying an incorrect legal standard in denying the defendant’s request to dismiss the five-year enhancement for the prior serious felony.  Section 1385 provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so.  It also provides that, in exercising its discretion, the court must consider and afford great weight to evidence offered by the defendant to prove any of nine listed mitigating factors, unless the court finds that dismissal of the enhancement would endanger public safety.  If the court does not find dismissing an enhancement would endanger public safety, the court must consider whether the defendant has presented evidence of one or more of the mitigating factors listed in section 1385.  If so, the court must engage in a holistic balancing with special emphasis on the [nine] enumerated mitigating factors and must dismiss the enhancement unless the 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] PC 1385; People v. Walker (2024) 16 Cal.5th 1024, 1033, 1036.

Third Holding:  Without the benefit of Walker, decided several months after the resentencing, the superior court did not apply the correct legal standard.  It did not find that reducing the sentence by five years would endanger public safety.  Nor did it consider dismissing the prior conviction that was more than five years old, instead relying on the fact that the original court found the prior conviction to be true.  By deferring to the original trial court on whether to strike the serious felony conviction enhancement, the superior court ignored section 1172.75’s mandate to apply changes in law that reduce sentences or provide for judicial discretion.  In 2015 the trial court had to impose the five-year prior serious felony enhancement under section 667, subdivision (a)(1), but effective 2019, Senate Bill No. 1393 gave trial courts discretion to strike that enhancement under section 1385.  In addition, section 1172.75 authorized the superior court to consider postconviction factors, such as the defendant’s disciplinary record and rehabilitation while in prison, his age, and his physical condition—factors not available to the trial court in 2015. [See] People v. Carter (2023) 97 Cal.App.5th 960, 968 [simply striking the one-year enhancement imposed under the repealed portion of former section 667.5, subdivision (b), deprived the defendant of his right to full resentencing under the changes in the law]; People v. Coddington (2023) 96 Cal.App.5th 562, 567 [court erred by failing to provide the defendant with a full resentencing hearing, meaning a hearing in which he could have sought further sentencing relief under at least two other statutes that were enacted after his conviction]; People v. Rogers (2025) 108 Cal.App.5th 340, 361 [section 1172.75, subdivision (d)(3), promotes an examination of information and circumstances that did not exist at the time of the original sentencing which, in turn, evinces an intent that the resentencing court must sentence anew under present circumstances].

Fourth Holding:  The superior court’s error was prejudicial because the record does not clearly indicate the court would have reached the same conclusion had it applied the correct legal standard. [See] People v. Salazar (2023) 15 Cal.5th 416, 424 [where the trial court fails to exercise informed discretion, the appropriate remedy is to remand for resentencing 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]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [same]; People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remand was required where the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion].

Fifth Holding:  On remand, the superior court should consider whether dismissing the prior serious felony enhancement and reducing the defendant’s sentence from 25 years six months to 20 years six months would endanger public safety.  If the court does not make that finding, it should dismiss the enhancement, unless it finds substantial, credible evidence of countervailing factors that neutralize the great weight of any applicable mitigating circumstance enumerated in section 1385, subdivision (c)(2), including that the enhancement was based on a prior conviction that was more than five years old [See] People v. Gonzalez (2024) 103 Cal.App.5th 215, 230-231 [in assessing whether dismissing an enhancement would endanger public safety, the trial court should have considered the date on which the defendant could be released if the enhancement was dismissed, not only whether the defendant currently posed a danger to the public].

Sixth Holding:  We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion. [See] People v. Moseley (2024) 105 Cal.App.5th 870, 874; People v. Garcia (2024) 101 Cal.App.5th 848, 855-856.

Seventh Holding:  In reviewing matters of statutory interpretation we review the trial court’s decision de novo.  [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 323; People v. Braden (2023) 14 Cal.5th 791, 804 [The interpretation of a statute presents a question of law that this court reviews de novo].

Case:  000097

Our review has disclosed the trial court’s failure to award updated custody credits at the resentencing hearing.  We will remand the matter solely for this purpose and otherwise affirm.  

First Holding:  The trial court failed to award updated custody credits at the resentencing hearing. Where there is a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. [See] PC 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 23.

Case:  000098

The defendant claims the trial court erred in sentencing him to five years in prison, and alternatively asserts the court was unaware of its discretion to strike the enhancement in the earlier case.  The People concede the trial court did not appreciate its discretion but argue it did not err because the original sentencing court would not have struck the enhancement.  We vacate defendant’s sentence and remand for resentencing but otherwise affirm the judgment.

First Holding:  As we will explain, the trial court erred because it failed to understand its discretion to correct what we conclude was an unauthorized sentence.  We will remand to allow the court to exercise its informed discretion to correct the unauthorized sentence and resentence defendant.  A sentence is unauthorized when it could not lawfully be imposed under any circumstances. [See] People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1517.

Second Holding:  The original sentencing court was required to either suspend imposition of a sentence or impose and suspend execution of a sentence before placing defendant on probation.  Instead, the original sentencing court did not pronounce a sentence for the underlying driving under the influence offense but imposed and suspended execution of the great bodily injury enhancement.  As a result, we conclude the original sentencing court’s oral pronouncement of judgment was unauthorized.  To determine the sentence imposed by the first sentencing court, we look to the oral pronouncement of the sentence.  Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls.  Ordinarily, this principle of law would let us apply the trial court’s oral pronouncement of judgment as the definitive sentence, but here the sentence orally pronounced was unauthorized.  The record cannot be harmonized to correct the unauthorized sentence. [See] PC 1203.1; People v. Hill (1986) 185 Cal.App.3d 831, 834 [an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components–the invalidity of one component infects the entire scheme]; People v. Price (2004) 120 Cal.App.4th 224, 243; People v. Zackery (2007) 147 Cal.App.4th 380, 385.

Third Holding:  Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.  A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.  In such situations, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion had it been aware of the scope of its discretion. [See] People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.

Case:  000099

The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him.  The People concede error.  We agree, and reverse. 

First Holding:  Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. [See] PC 1172.6.

Second Holding:  Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.  Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause.  If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts.  All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives. [See] PC 1172.6.

Third Holding:  We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing. [See] People v. Harden (2022) 81 Cal.App.5th 45, 52.

Fourth Holding:  Since the decision to appoint counsel is not discretionary, we review that without deference as well. [See] Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988.

Case:  000100

Based on the discussion below, we find the trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s right to a jury trial on the alleged aggravating factors. We vacate the sentence and remand the matter for litigation of the alleged aggravating circumstances and full resentencing. During the bench trial on the prior convictions, the trial court specifically noted that it was not convinced beyond a reasonable doubt that the prior convictions were true.  It was therefore error for the court to rely on them. 

Holding:  The trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s constitutional right to a jury trial on the alleged aggravating factors.  [See] People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Lynch (2024) 16 Cal.5th 730, 768; Chapman v. California (1967) 386 U.S. 18.

This is an odd little brass (??) dish I found in my office decorations box when I was cleaning out in anticipation of my January 15, 2026, retirement. Something I bought at a “somebody must think it’s a treasure” used thingies store down the street, some time in the last several decades. I think the various surrounding decorations represent cigar bands, as the words “Flor de Lovera” and “Jose Lovera Company” are inscribed. Jose Lovera (1861-1928) apparently owned a cigar company. I’ve heard rock bands, ukulele bands, and blues bands, but I’m really curious to hear the sound of cigar bands.

Well, the previous post was short (if not sweet).  This has only four cases in it, but as typical in many appeals, some have several different issues, or perhaps several different aspects that must be considered on a single overall issue.  

Since the previous post was relatively short, and the current one wouldn’t otherwise win in a wordiness contest in competition with The Whale (the 1851 book, not the 2022 movie), I’m taking this opportunity to remind you a little about how I’m presenting the summaries.   (And as I reached the end of drafting it, I see I do a little soapboxing as well.)

Reminder on How My Summaries Smush Concepts and Authorities Together

I’ve tried to explain on my “Posting Proclivities” page, but I think it bears reminding from time to time that the actual phrasing used in the opinion may be quite different from how I have put it together.  In a typical opinion, the court might say something like,  

Blah-di-blah-di blah (§ 2xx.6) “requires a Blah-di-blah-di blah in which the blah-di-blah-di blah blah-di-blah-di blahed . . . the blah-di-blah-di blah.’  (§ 2xx.6, subd. (b)(1)–(2); see People v.Somecase(199x) xx Cal.4th xx, yy–zz.)”  (People v. Smothercase, supra, xx Cal.App.5th at p. abc.)  The blah-di-blah-di blah may be of either blah-di-blah-di blah or blah-di-blah-di blum.  (People v. Yetanotherdude (200x) xx Cal.4th yy, zzz.) ;  [I]n a [Blah-di-blah-di blah (§ 2xx.6 or inkin for blinkin  (§ 2xxx.5)] involving an associated crime, the jury should be instructed to consider whether the blah-di-blah-di blah was incidental to the commission of that crime in determining the blah de dum substantiality. . . .  [S]uch consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law.’  [Citation.]  An associated crime for the purposes of Blah-di-blah-di blah ‘is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also blah-di-blah-di blahs by force or fear against his or her will.’  [Citation.]”  (People v. Howmanydudesarethere  (20xx) xx Cal.App.5th abc, zzz.)

And the actual passage I took that format from goes on and on and on in that manner, citing principles important to multiple facets of the issues dealt with, and often quoting other cases’ quotations from yet third and fourth other nested citations.

All of that is critical to the court’s opinion.  A well-crafted opinion is assailable only by disagreement in philosophy, and that will require a court or the Legislature to decide that what we’ve thought in the past we don’t or shouldn’t think in the future.  So I’m not poking fun at those opinions when I substitute my blah-di-blah nonsensicals in there.  I’ve promised to maintain as much anonymity as I can in my summaries, because I prefer that no one without a need to know can determine the identity of the parties and witnesses.  

So by keeping the actual layout of the presentation of a portion of the opinion, my point is simply that a typical opinion will be loaded with ellipses, parentheses, brackets, section symbols, multiple layers of opening and closing quotation marks, supras, infras, case citations partial and complete (depending on if cited previously in the opinion), and then you may also have to deal with ids and ibids, cfs and op cits.  The authors want to attribute their decision to established authority to show they’re not just making this stuff up as they go.

While that may make an airtight opinion, I don’t think a summary has to be so tight.  Hence, I mash statements together and I try to remember to delete the attribution punctuation.  I even may join phrases in a single sentence that actually appeared several sentences apart. While maintaining what I believe to be the essence of the holdings, I may not be simply pasting verbatim with only mild deletions. I try to make them as readable as I can, and that requires manipulation. (That said, there are instances where I have directly copied and pasted, without attribution and without quotation marks. I’m not claiming these holdings as my own– I’m condensing and summarizing and paraphrasing for readability.) As I have said elsewhere in this website as well as in the dozens of articles I have written, if you see something important, you have to read the opinion.  (Which, as I have also said, I will provide to attorneys on individual request.  You don’t have my email info probably when I upload this post, but it will follow after January 15, 2026.)

So what have I brought you today?

Summary of Summaries

A trial court forgot to impose and stay an enhancement and didn’t follow the correct procedure for imposing an aggregate sentence on the defendant’s two cases before the court.

Gotta remember to recalculate credit for time served when the defendant appears in the case for resentencing or modification of the judgment.

More than a quarter century later, a minor remains in custody for acts committed when he was only 14.  We see how the trial court did not do right in initially denying the petition for recall under section 1170(d).

Another abstract of judgment needs correction.  

Soapboxing

GARY NOTE:  As an aside to that last reference to abstracts.  I run across many, many cases where the abstracts of judgment are incorrect in ways that could harm the defendants’ interests.  CDCR and parole authorities are going to accept what they see on the abstract of judgment as a true and accurate account.  Errors might affect an inmate’s housing and job assignments and may even result in denial of the proper calculation for good behavior and work credits, not to mention result in depletion of inmate funds for the repaying of debts no longer or never owed.  I personally believe attorneys should obtain a copy of the abstract of judgment and minute orders–because minute orders, too, have been seen to contain errors, and they, too, can be used to guide the decisions that affect inmates–and check out their accuracy immediately.  Where wrong, it should be brought to the attention of the proper person or court to get the correction.  

As an example of how something can go terribly wrong, suppose a defendant was convicted years ago of violating Penal Code section 245, which (at the time in my hypothetical) could be violated by assaulting a person EITHER by use of a deadly weapon OR by means likely to cause great bodily harm, because the then-wording of section 245 started out, “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury,” rather than having the two methods separated in different parts of the section as the section now reads.  Decades later, the defendant commits a robbery, only his second offense ever.  If the abstract of judgment erroneously indicates that his prior violation of section 245 was by use of a deadly weapon–rather than by means of force, as it actually was (in my hypothetical)–it would appear that the defendant would have a strike, resulting in a doubled sentence.  Or if the defendant’s record was a bit worse and that old conviction is seen to count toward a total of two prior strikes, he’s possibly looking at a minimum of 25 years to life, depending on the nature of the new offense.  All because of an incorrect abstract of judgment “proving” that he had that as a strike. Isn’t avoiding that risk worth securing a correct abstract of judgment and related minute orders?  Okay, I see I’ve bent the planks in my soapbox, so I’ll dismount, for now.

Stop the Presses! Back up on the soapbox! Since the original drafting a few days ago, I have run across an unpublished case (Case 000300, so it may be a while before you see the summary) where the abstract of judgment incorrectly stated the defendant had been convicted of a serious or violent felony! The appellate court has ordered its correction, but my, my! That mistake might have resulted in all sorts of problems should the defendant ever be convicted of yet another crime in the future. Sure, I’m certain there are those out there who think people get what they deserve and shouldn’t complain when their poor judgment results in worse punishment than the law permits. That’s not how I feel, however. There’s enough injustice out there already, and the Legislature has spoken on what the punishment may be. There’s no call for someone to be subjected to beyond what the law permits. Okay, I’m done for now. I’ve worn out the soapbox so much it couldn’t qualify for a derby.

Case:  000091

Remand for resentencing is required because (1) the trial court erred by failing to impose and then stay execution of the sentence on the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a); and (2) the trial court erred in failing to resentence the defendant to a single aggregate term of imprisonment for this case and another case for which he is serving a term of 24 years.  We accept the People’s concession and remand the matter for resentencing.

First Holding:  At sentencing, the trial court did not orally pronounce a sentence for the infliction of great bodily injury enhancement.  The matter is accordingly remanded for the trial court to impose and stay execution of the three-year sentence on the Penal Code section 12022.7, subdivision (a) enhancement.  [See] People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130.).

Second Holding:  When a defendant is convicted of multiple crimes in different cases and a consecutive term of imprisonment is imposed, the aggregate term for those cases is the sum of the principal term and subordinate term.  In this instance, the trial court did not impose a single aggregated term.  We will therefore remand for the trial court to do so.  During resentencing, the trial court shall also award the appropriate custody credits for the aggregate term. [See] PC 1170.1; Rules of Court, rule 4.452 [setting forth the procedure for imposing consecutive sentencing under PC 1170.1].

Third Holding:  During resentencing, the trial court shall award the appropriate custody credits for the aggregate term. [GARY NOTE: Court must recalculate credit for time served on resentencing] [See] GARY NOTE: People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37]; GARY NOTE: PC 2900.1].

Case:  000092

In 2023, the defendant filed a petition for recall and resentencing under Penal Code section 1170, subdivision (d).  He was serving a sentence of more than 50 years to life for offenses committed when he was 14 and tried as an adult.  We agree with the defendant that he adequately demonstrated he did not have prior juvenile felony adjudications for assault or other disqualifying felonies, contrary to the finding of the trial court.  We agree that the prior offense was not adjudicated as a felony.  Section 1170(d) requires that he satisfy at least one of the specified criteria, which he has.  On that basis, we are compelled to reverse the order denying his petition for recall and resentencing.

First Holding:  In light of the ban against cruel and unusual punishment under the Eighth Amendment, in 2013 the Legislature created a procedure for a juvenile offender sentenced to life without the possibility of parole (LWOP) to petition for a recall of the offender’s sentence and resentencing after the offender has served at least 15 years of the sentence. [See] P C 1170(d); In re Kirchner (2017) 2 Cal.5th 1040, 1049; Graham v. Florida (2010) 560 U.S. 48; People v. Heard (2022) 83 Cal.App.5th 608, 622–626.

Second Holding:  There is a conflict.  Some courts have held that it violates the constitutional promise of equal protection of the laws to deny relief under the statute to juvenile offenders sentenced to lengthy terms of years amounting to the functional equivalent of LWOP.  Other courts have concluded that PC 3051 moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP. [See] People v. Sorto (2024) 104 Cal.App.5th 435, 450–454; People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054–1061; People v. Cabrera (2025) 111 Cal.App.5th 650, 653; People v. Ortega (2025) 111 Cal.App.5th 1252, 1260; People v. Isayev (2025) 113 Cal.App.5th 1117, 1123.

Third Holding:  We apply the substantial evidence standard of review when considering disputed findings of fact made by trial courts.  Under that standard of review, we review the record in the light most favorable to the order to determine whether the order is supported by substantial evidence.  Substantial evidence is evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value, and substantial proof of the essentials which the law requires in a particular case. [See] People v. Munoz (2025) 110 Cal.App.5th 499, 506–507; People v. Harring (2021) 69 Cal.App.5th 483, 495; People v. James (1985) 176 Cal.App.3d 795, 798; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.

Fourth Holding:  Insofar as the defendant’s claims require us to interpret section 1170, subdivision (d), they present questions of statutory construction subject to de novo review.  Statutory construction begins with the plain, commonsense meaning of the words in the statute, because it is generally the most reliable indicator of legislative intent and purpose.  A statute is not to be read in isolation, but construed in context and with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute’s true meaning. [See] People v. Munoz (2025) 110 Cal.App.5th 499, 506; People v. Harring (2021) 69 Cal.App.5th 483, 495; People v. Heard (2022) 83 Cal.App.5th 608, 622–623.

Fifth Holding:  Penal Code section 1170(d) states that, when the defendant seeks relief under that section, the petition shall include the defendant’s statement that the defendant was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendant’s statement describing their remorse and work towards rehabilitation, and the defendant’s statement that one of the following is true:  (A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law; (B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall; (C) The defendant committed the offense with at least one adult codefendant; (D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse. [See] PC 1170(d).

Case:  000093

The clerk of the superior court is directed to correct the abstract of judgment to reflect that the court did not impose any prior-prison-term enhancements under section 667.5, subdivision (b).  The clerk of the superior court is directed to forward copies of the corrected abstract of judgment to the CDCR.

First Holding:  As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.  [See] People v. Mitchell (2001) 26 Cal.4th 181, 185.

Second Holding:   Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (§ 667.5, subd. (b). [See] People v. Garcia (2024) 101 Cal.App.5th 848, 854.; PC 667.5.

Third Holding:  Effective January 1, 2022, Senate Bill No. 483 made the change retroactive to “all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements. [See] People v. Rhodius (2025) 17 Cal.5th 1050, 1062; PC 667.5.

Fourth Holding:  An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185.

Fifth Holding:  Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken. [See] People v. Rhodius (2025) 17 Cal.5th 1050; PC 1172.75.

Sixth Holding:  An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground. [See] People v. Battle (2021) 11 Cal.5th 749, 800.

Seventh Holding:  The abstract may be corrected at any time when it does not reflect the oral pronouncements. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185.

Case:  000094

The defendant challenges his sentence on the ground it violates Penal Code  section 654. We agree that the course of criminal conduct in two of the counts was indivisible, and the trial court should have stayed execution of the sentence on one of them. We will remand the matter to the trial court to correct the sentence. In all other respects, we affirm.  

Holding:  When a defendant’s single course of conduct violates two criminal statutes, the defendant may be convicted of both crimes, but may only be sentenced on one. [See] PC 654; People v. Jones (2012) 54 Cal.4th 350, 358–359.

This bird was made upside down. Whoever heard of legs on the back and wings on the chest?

Today is just a short post.  I figure you can memorize only so many case holdings in a day, right?  Yep, I have a heart.

Summary of Summaries

Another abstract of judgment needed correction to reflect that listed fines and fees had been vacated.

More errors in figuring out what to do on resentencing under 1172.75, including examining AB 333 on gang activity.  And though the court did not reverse the denial of the defendant’s request for dismissal of various things under section 1385, I’ve included what I think is important language regarding that statute.

Another case confirms that if one loses on a bare bones check box petition filed for recall under 1172.6 (regarding changes in the homicide law), the court may remand to give the petitioner an opportunity to file an amended petition that actually demonstrates eligibility for relief.

(Not to worry, there is no case 000089.)

Case:  000087

The matter is remanded to allow the trial court to amend the abstract of judgment to reflect that the $30 criminal conviction assessment (Gov. Code, sec. 70373), the $40 court operations assessment (Pen. Code, sec. 1465.8), the $300 restitution fine (Pen. Code, sec. 1202.4), and the $300 parole revocation restitution fine (Pen. Code, sec. 1202.45), were vacated. 

Holding:  The court has inherent power to correct clerical errors in abstract of judgment [See] People v. Baker (2021) 10 Cal.5th 1044, 1109.

Case:  000088

The trial court made several errors in resentencing under Penal Code section 1172.5.  It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee.  The court must also recalculate credits and correct the abstract of judgment.  [GARY NOTE: The opinion also provided extensive discussion of the application of section 1385, regarding dismissals in the furtherance or interest of justice, touching on abuse of discretion, etc., that were resolved against the defendant on appeal.  I have provided principles and authorities on those points for educational reasons, even though they did not support relief for the defendant in this instance.]   

First Holding:  Section 1172.75 declares legally invalid all one-year prior prison term enhancements except those for sexually violent offenses described in WI Code section 6600(b).  Because the defendant’s two priors are not sexually violent offenses, they were legally invalid and should have been stricken. [See] PC 1172.75.

Second Holding:  Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) modified the gang enhancement by adding new requirements that did not previously exist.  Because AB 333 retroactively applies to people, like defendant, who have been granted a resentencing hearing, the trial court erred in not assessing whether the jury’s findings in this case otherwise addressed the new requirements or whether the jury’s failure to do so was harmless beyond a reasonable doubt.  [See] People v. Lopez (2025) 17 Cal.5th 388, 395-396.

Third Holding:  The trial court imposed a $10 administrative screening fee ostensibly under section 1463.07 in November 2018.  This is unenforceable because our Legislature in 2021 repealed that section and nullified prior fees imposed under that section.  [See] PC 1465.9.

Fourth Holding:  It was not necessary for the trial court to respond to all of the defendant’s contentions at the sentencing hearing.  Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules. [See] People v. Knowles (2024) 105 Cal.App.5th 757, 765; People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322; People v. Brugman (2021) 62 Cal.App.5th 608, 637; Rules of Court, rule 4.409 [sentencing factors “will be deemed to have been considered unless the record affirmatively reflects otherwise”].

Fifth Holding:  Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion [See] People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.

Sixth Holding:  Despite the use of the phrase “shall be dismissed,” section 1385’s provisions that require a court to give great weight in favor of dismissal do not apply where a trial court finds that dismissal of the enhancements would endanger public safety. [See] People v. Mendoza (2023) 88 Cal.App.5th 287, 296; People v. Mazur (2023) 97 Cal.App.5th 438, 444-446; People v. Cota (2023) 97 Cal.App.5th 318, 335-337; People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1290; People v. Anderson (2023) 88 Cal.App.5th 233, 238-241; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21.

Case:  000090

On the defendant’s claim that it was error to deny his petition for recall of his sentence under Penal Code section 1172.6 because the trial court found that he was ineligible as matter of law in considering the preliminary hearing transcript, the cause is remanded with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur.  The trial court’s order is otherwise affirmed. 

First Holding:  At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to sections 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [See] People v. Curiel (2023) 15 Cal.5th 433, 463.

Second Holding:  After determining the facial validity of a resentencing petition and before ordering an evidentiary hearing, a trial court may properly, at the prima facie stage, reference the record of conviction, which includes the preliminary hearing transcript, to refute conclusory allegations in furtherance of its statutorily required screening function at that juncture of a section 1172.6 proceeding. [See] People v.Lewis (2021) 11 Cal.5th 952, 971; People v. Patton (2025) 17 Cal.5th 549, 569.

Third Holding:  Although the defendant has not shown error in connection with the court’s denial of his section 1172.6 petition, following the Supreme Court’s directive to the Court of Appeal in Patton, we will remand the matter to the trial court with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur. [See] People v. Patton (2025) 17 Cal.5th 549, 569 569–570; People v. Glass (2025) 110 Cal.App.5th 922, 930–931.

(That’s it for today’s post. Are you prepared for an exam? Me neither.)

Holy Sky, Matban!

This will be the summary. I think I need a book of clever transitions if I’m going to try to say something different before each digest.  I could get a book that lists a thousand intros, and then save everyone some time just by typing its number instead of my saying anything at all.   Hmm.

Well, till then:

Summary of Summaries

Victims can’t be given a windfall by way of restitution orders.

A court has no jurisdiction ex nihilo to change the original award of credit for time served based on a CDCR analyst’s letter suggesting there was error.

Notices of appeal have jurisdictional time limits, so calendar accordingly.

An officer can’t simply turn a hunch into reasonable suspicion to detain.

Case:  000083

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken.  

First Holding:  Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct.  Restitution is not intended to provide the victim with a windfall.  Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.  [See] People v. Nichols (2017) 8 Cal.App.5th 330, 342; People v. Baker (2005) 126 Cal.App.4th 463, 470.

Second Holding:  The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. [See] PC 1465.9; People v. Greeley (2021) 70 Cal.App.5th 609, 625.

Case:  000084

The trial court did not have jurisdiction to amend earlier (erroneous) pronouncements on credit for time served, and the appellate court left in place the uncorrected credit for time served even though it gave him more conduct credit than he was entitled to.  The appellate court treated the defendant’s appeal as a petition for writ of habeas corpus, because there was no right to appeal from an order that the trial court had no jurisdiction to make. The California Department of Corrections and Rehabilitation clerk’s letter saying there was an error in the award of credit for time served does not constitute a request by CDCR to resentence the defendant under section 1172.1.  As the judgment was already final, the  trial court had no jurisdiction to change the judgment, even though erroneous.  The superior court was directed to amend the abstract of judgment to reflect that the prior sentence as reflected in the original abstract of judgment is reinstated including the awarding of the custody credits.

First Holding:  The court may treat an appeal as a petition for writ of habeas corpus. [See] People v. Singleton (2025) 113 Cal.App.5th 783.

Second Holding:  Unlike a letter from the California Department of Correction and Rehabilitation  Secretary or their authorized representative expressly requesting recall and resentencing, a letter from a CDCR analyst recommending the court to review its file does not confer jurisdiction under section 1172.1 to vacate or modify a sentence notwithstanding the long-standing practice of treating such letters as a jurisdictional basis. [See] People v. Singleton (2025) 113 Cal.App.5th 783, 787.

Third Holding:  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.  Once the case is final, the court can modify the sentence only if the court has jurisdiction under section 1172.1 or another authorizing statute, or by the filing of a petition for a writ of habeas corpus, or to correct a clerical error, or to modify an unauthorized sentence when the error is apparent from the record. [See] People v. Codinha (2023) 92 Cal.App.5th 976, 990; People v. Karaman (1992) 4 Cal.4th 335, 344; People v. Singleton (2025) 113 Cal.App.5th 783, 788, 791.

Case:  000085

This habeas petition seeks a belated appeal from a  judgment rendered in the superior court.  Petitioner urges this court to apply the constructive filing doctrine to permit such a belated filing.  n response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief.  Pursuant to the Attorney General’s response, this court may grant relief without further proceedings.  (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)  In addition to the Attorney General’s nonopposition, petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine.  (In re Benoit (1973) 10 Cal.3d 72.)  We accordingly grant petitioner’s request to file a belated notice of appeal.  [GARY NOTE: The issue is fairly straightforward and there was not much discussion.  I have taken the liberty of adding “holdings” and authorities for educational purposes.]

First Holding:  Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed [See] In re Benoit (1973) 10 Cal.3d 72.

Second Holding:  [GARY NOTE: In felony cases, the notice must be filed within 60 days.] [See] [GARY NOTE: 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, no court may extend the time to file a notice of appeal. (b) Cross-appeal. If the defendant or the People timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the time specified in (a) or 30 days after the superior court clerk sends notification of the first appeal, whichever is later.  c) Premature notice of appeal.  A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order.  (d) Late notice of appeal.  The superior court clerk must mark a late notice of appeal “Received [date] but not filed,” notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project.]

Third Holding:  [GARY NOTE: In misdemeanor appeals, the notice must be filed within 30 days.] [See] [GARY NOTE: 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.]

Fourth Holding:  [GARY NOTE: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. [See] [GARY NOTE: In re G.C. (2020) 8 Cal.5th 1119]; [GARY NOTE: 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:  000086

The defendant appeals from the trial court’s order denying his motion to suppress evidence, contending the court erred when it found police officers had reasonable suspicion to detain him.  Because we have concluded there was insufficient evidence that defendant’s conduct, when considered in the totality of circumstances, supported a reasonable suspicion that he was, or was about to be, engaged in activity relating to crime, we agree with defendant that the officers lacked reasonable suspicion to detain him.  Accordingly, the subsequent recovery of the handgun was the product of an illegal detention and arrest and evidence related to the recovery was subject to exclusion.  [GARY NOTE:  The facts relied on by the court are too extensive to adequately summarize.  Essentially, the officer saw a group of people milling about.  When some appeared to notice him, they ran off, though the defendant and one other did not run off.  The officer described various body movements and claimed to have seen something that was not borne out by the appellate court’s review of the body cam video.]

First Holding:  The Fourth Amendment permits an officer to initiate a brief investigative stop when the officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.  [Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.  Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.  The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.  Courts cannot reasonably demand scientific certainty where none exists.  Rather, they must permit officers to make commonsense judgments and inferences about human behavior. [See] Kansas v. Glover (2020) 589 U.S. 376, 380–381; People v. Flores (2024) 15 Cal.5th 1032, 1041.

Second Holding:  The officer’s subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [See] People v. Wells (2006) 38 Cal.4th 1078, 1083.

Third Holding:  In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence.  We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.  In doing so we do not consider each fact in isolation.  Instead, we must consider the totality of the circumstances—the whole picture. [See] People v. Flores (2024) 15 Cal.5th 1032, 1043.