Error and/or relief
Gary note: This case had a ton of issues. The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served. In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant.
I apologize for the length of the summary.
First Holding:
In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.
We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.
Authority:
People v. Martinez (2008) 158 Cal.App.4th 1324, 1329
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574
People v. Pham (2009) 180 Cal.App.4th 919, 924-925
People v. Lucero (2019) 41 Cal.App.5th 370, 411
Second Holding:
It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.
But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.
Authority:
Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316
Third Holding:
A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.
Authority:
People v. Montoya (1994) 7 Cal.4th 1027, 1047
People v. Larsen (2012) 205 Cal.App.4th 810, 823
Fourth Holding:
We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.
Authority:
People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]
People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]
Fifth Holding:
We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.
The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.
As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.
Authority:
People v. Mitchell (2019) 7 Cal.5th 561, 579
People v. Dieguez (2001) 89 Cal.App.4th 266, 277
People v. Vang (2009) 171 Cal.App.4th 1120, 1129
Sixth Holding:
On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.
Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.
However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.
Authority:
People v. Souza (2012) 54 Cal.4th 90, 113
People v. Lewis (2001) 25 Cal.4th 610, 645
People v. Breverman (1998) 19 Cal.4th 142, 155, 162
People v. Reeves (2001) 91 Cal.App.4th 14, 51
Seventh Holding:
The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.
There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.
Authority:
In re Carleisha P. (2006) 144 Cal.App.4th 912, 923
De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40
People v. Sample (2011) 200 Cal.App.4th 1253
People v. Von Latta (1968) 258 Cal.App.2d 329
Eighth Holding:
Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).
Authority:
PEN 977(b)(1)
Ninth Holding:
A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.
The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.
Authority:
PEN 977
U.S. Const., 6th and 14th Amends.
Cal. Const., art. I, secs. 15, 16
Kentucky v. Stincer (1987) 482 U.S. 730, 745
People v. Perry (2006) 38 Cal.4th 302, 311
Tenth Holding:
Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.
Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.
Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.
Authority:
Chapman v. California (1967) 386 U.S. 18, 23
People v. Millsap (2025) 114 Cal.App.5th 368, 384
Eleventh Holding:
The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.
Authority:
People v. Fletcher (2025) 18 Cal.5th 576
Twelfth Holding:
The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).
Authority:
PEN 1192.7(c)(28)
PEN 667(d)(1), (e)(1)
PEN 1170.12(b)(1)(c)(1)
People v. Briceno (2004) 34 Cal.4th 451, 45
Thirteenth Holding:
AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.
This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.
Authority:
PEN 186.22(g)
People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608
Fourteenth Holding:
The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.
Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.
If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.
Authority:
PEN 1207
People v. Mesa (1975) 14 Cal.3d 466, 471
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Mitchell (2001) 26 Cal.4th 181, 185-186
Fifteenth Holding:
The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.
Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.
Authority:
People v. Tillman (2000) 22 Cal.4th 300, 303
Sixteenth Holding:
However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.
Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so
Authority:
PEN 1465.8
GOV 70373
People v. El (2021) 65 Cal.App5th 963, 967
Seventeenth Holding:
The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.
Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).
Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.
Authority:
PEN 2933.1
People v. Taylor (2004) 119 Cal.App.4th 628, 647
People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]
People v. Bravo (1990) 219 Cal.App.3d 729, 735