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.