Category: Absconditum Aurum

A spaceship’s last moments as it enters the black hole?

Well, as I get into this web thing a little more, I have seen that I need to moderate my own expectations. I was hoping to be able to summarize and post the qualifying unpublished opinions for each day. I.e., one post would be all of the cases for that particular day. Turns out to be a huger task than I expected if I’m going to present what I want to present in each case’s summary.

I’ve kept track of my time for the past week, broken into three blog-related categories.

(1) Downloading and summarizing each case that, following a quick look at all the criminal cases, seems to have some qualifying aspect for the blog.

(2) Breaking the summaries into bloggable format. Paraphrasing what I copied and pasted, moving the embedded authorities to the end so that the holding of the text states the principal unhampered by several levels of quotation marks, ellipses, brackets showing that the citation quoted was in present tense but the author of the new opinion phrases it in the past tense. For example, suppose the opinion language stated, “‘”[T]he defendant “‘walk[ed]’” … and [the victim] … shout[ed] at [the defendant] while … [the witness] … ate [pastries],”‘” I would clean that up to: The defendant walked and the victim shouted at him while the witness ate pastries.

(3) Gathering the now-tailored (“categorized”) cases into a single document as a text file, then removing a number of aspects inserted by my export that my collecting application puts in as part of the gathering, marking, separating, and exporting process, then pasting in as a new post, then composing a bit of an intro like I’m writing now, and doing some centering and boldfacing the case numbers, and creating a summary of the summaries for quick peeks. And finding a photograph, cropping and sizing down from megamegs to under 100 kilosomethings, and getting it into the post.

In that week, I summarized (step 1) 48 qualifying opinions (42 hours). I categorized (step 2) 28 of them (12 hours). And I have blogified (step 3) the following five for today’s post (8 hours). A total of 62 hours . In a week. (And that was through yesterday, not including my time blogifying today, probably another hour or so.)

So I need to figure out a balance. Given that there have been as many as 14 “wins” (by my definition) in a day, I think I need to re-think my goal of posting a full day’s worth per post. (You may recall that I broke Post 17 into 17.1, 17.2, and 17.3, all of which I posted on the same day because they were all decided on the same day, albeit a few months ago.)

I’m thinking that one of my observations about unpublished opinions is that they contain gold of stuff that is so common you don’t run across it–or notice it, anyway–in the published opinions. So I should focus on providing that gold, not focus on getting every unpublished opinion (which I don’t identify for you anyway) out the door quickly. I’m thinking that IF anyone is reading these and getting something out of them at all, maybe four to six a day is pu-lenty.

We all probably pulled all-nighters in law school studying for class and exams. Ditto for the various licensure preps and tests (MPRE, LSMFT, bar review, and bar exam), and we probably all do a lot of reading directly related to some client problem on our desk, and we probably all have SOME sort of “new developments in the law” system in place. Whew! We need 30 hours a day. We probably do not all have time to read a 5000-word blog daily that plagues us with “yet another example of a court [imposing the upper term without a jury finding BRD; abstract of judgment or minute order gone awry; credit for time served? WHAT credit for time served?] …. “

All through my career, I collected snippets of holdings pertinent to my practice, and kept them in some format that I could find them when I need them. The last six years, I collected summaries of all the state’s published criminal cases in a huge PDF volume of nearly 3000 pages . For about 30 years before that, I used my favorite desktop database application–I won’t name it in my blog because I’m not sure what I’m supposed to display as trademark info and the like. (If companies are so tight that they’re afraid something huge bad will befall them if their product is mentioned without the accompanying legally required marks and stuff, my solution is easy. I won’t name the product.) In my free time (you know, the other 106 hours in the week), I may someday attempt to move the PDF file into that favorite database program of mine.

(It reminds me of a cartoon I once saw (and I may have mentioned this elsewhere) where the law students are sitting in the middle of stacks and stacks and stacks of casebooks, and one says something like, “What troubles me is that I know the answer is just staring at me someplace.”)

Because I know that I have the info I want by using just a few search terms (though PDFs are a bit more challenging, because they seem to be searchable by exact string and not by boolean or proximity), I don’t have to log into online databases to look up what case holds that a particular issue is viewed under the Watson standard of error or the Chapman standard. That is, yes, I do have to look it up, but it’s all in my snippets somewhere easy for me to find. What I mean is I don’t have to turn to the huge databases and do a search from scratch to find a case that says “Yes, Gary’s client is entitled to reversal because it cannot be said that the error was harmless [under whichever standard is applicable].” I can usually find what I want among my snippets, and either use that directly or use it as a springboard to see if I can find a case whose facts are more directly like my client’s.

So when I envisioned my Thar’s Gold blog, I had in mind that attorneys whose practice includes the need to know the law in this area can copy and paste from my blog the various “maxims,” if you will (even though they aren’t), along with the published cases the attorney can actually read when the issue pops up. “We review [xxx] de novo.” “We defer to the trial court when reviewing […].” “Abuse of discretion occurs when […].” Etc.

But just as San Francisco was not built in a day, I suppose neither must your bag of tricks be so full so quickly that it bursts by too much sudden tension on the seams. (I tried to mix metaphors, but only came up with a metathree.)

So in this evolving blog, I’m going to see what I can do to keep it manageable, probably in chunks of four or five cases. I’ll worry less about getting an entire days’ decisions processed in a single post.

I am getting closer to rolling it out formally and getting the word out to more people. I’m still trying to find time to fix a few things, particularly with the search function. I’ve also been asked by a good friend to institute some method for notifying readers when a new post has gone up (those who want to be notified, anyway). I will look into that. I’ll be looking for a solution that does not involve scraping information from you and passing it along to plaguers. As I have said in my Privacy statement, I don’t want to know who you are or what you do or what you like to buy (or not), unless you initiate contact once I display my email address. I don’t want to implement something that enables a third party provider to harvest your info. But I’ve just been so busy working on the content (and still having a life) that “well, tomorrow’s another day” keeps coming to mind.

So, if you’re still awake and extremely patient (for which I’m grateful), here’s a preview of today’s attractions.

Summary of Summaries

There’s an organized discussion of the exercise of peremptory challenges prohibited by Code of Civil Procedure section 237.1.

Another reversal where the trial court erroneously determined that the defendant was not eligible for resentencing under section 1172.5 because the enhancement for a prior prison term had been stricken, a question left open by Rhodius, which dealt with when the enhancement had been imposed but stayed.

The trial court should not have treated the defendant’s petition for writ of habeas corpus and separate motion for recall of sentence under section 1172.6 as one omnibus habeas corpus petition. And the abstract of judgment contained an error on whether the counts were to be served concurrently consecutively.

Yet another instance where the court failed to update credit for time served at the conclusion of the resentencing hearing under section 1172.75.

The Supreme Court has resolved the question of whether a court must resentence a Three Strikes life termer to a doubled term under the Three Strikes Reform Act when the sentence has been recalled under section 1170.75. The answer is yes, subject to the Three Strike Reform Act’s exception where the court determines that relief would constitute an unreasonable risk of danger to public safety. And the court must recalculate credit for time served.

Case:  000119

The judgment must be reversed because the trial court deprived the defendant of his statutory rights under Code of Civil Procedure section 231.7  when it failed to sustain defense counsel’s objections to the prosecutor’s use of peremptory challenges to two prospective jurors.   We reverse the judgment and remand the matter for a new trial.

First Holding:  At its core, Code of Civil Procedure section 231.7 precludes either party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.  Once the objection is made, the trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. It must consider only the reasons actually given and not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.  If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained.  The court need not find purposeful discrimination to sustain the objection.  The court shall explain the reasons for its ruling on the record. [See] CCP 231.7(d)(1).

Second Holding:  The statute acknowledges that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of California.  It defines ‘unconscious bias’ to include both implicit and institutional biases. [See] CCP 231.7(d)(2)(C).

Third Holding:  A peremptory challenge for any of certain enumerated reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case. [See] CCP 231.7(e).

Fourth Holding:  The term ‘clear and convincing’ refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias.  To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case. [See] CCP 231.7(f).

Fifth Holding:  Section 231.7(g) provides a list of reasons for peremptory challenges that have historically been associated with improper discrimination. [See] CCP 231.7(g)(1)(A) and (B).

Sixth Holding:  The denial of an objection made under section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence.  The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.  The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court.  Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial. [See] CCP 231.7(j).

Seventh Holding:  [GARY NOTE:  The opinion examined the details of the voir dire and procedures followed, and cited several published opinions as examples of resolutions of the problem.  Rather than write a full tome, I have chosen simply to list the published cases, which you may want to read if you have a similar issue in your case(s).] [See] People v. Jaime (2023) 91 Cal.App.5th 941; People v. Caparrotta (2024) 103 Cal.App.5th 874, 892 [the role of the two-step procedure set forth in section 231.7, subdivision (g)(2) is to determine whether the presumption of invalidity has been rebutted]; McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243 [discussing racial disparities in charging decisions]; People v. Aranda (2012) 55 Cal.4th 342, 364 [the high court has identified as structural error constitutional violations such as racial discrimination in jury selection]; People v. Cahill (1993) 5 Cal.4th 478 [certain structural errors require reversal notwithstanding the strength of evidence in a particular case].

Additional Holdings: [GARY NOTE: Amicus curiae filed a brief that, in essence, challenged the legality of section 231.7, an issue not raised by either party in the appeal.] The second issue regarding the Legislature’s ability to require reversal was not raised by either party, either before the trial court or in this appeal.  Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered. [See] People v. Hannon (2016) 5 Cal.App.5th 94, 105

Case:  000120

Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75.  We reverse and remand for resentencing.  Holding:  A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing.  We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term. [See] People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987; People v. Cota (2025) 112 Cal.App.5th 1118, 1133; People v. Rhodius (2025) 17 Cal.5th 1050.

Case:  000121

The defendant submitted both a petition for writ of habeas corpus and a motion for recall and resentencing under section 1172.6.  The trial court erroneously treated both as a petition for writ of habeas corpus, which it denied without prejudice to allow the defendant to separately file a petition under section 1172.6.  Though contained in the same envelope and assigned a single case number by the court clerk, there were two separate matters presented to the trial court.  The matter is remanded for the trial court to give due consideration to the petition/motion filed for recall of sentence under section 1172.6.  

First Holding:  The record indicates that defendant submitted not only a petition for writ of habeas corpus, but also a separate motion for resentencing.  The title page of the habeas petition states it was being filed concurrently with a motion for recall and resentencing pursuant to section 1172.6.  Defendant included a separate section 1172.6 “motion” with its own title page and caption designating it as such.  That defendant, a prisoner, mailed the documents in one envelope as opposed to two, and placed his “motion” for resentencing before the exhibits to the petition for writ of habeas corpus, does not change the fact he submitted a separate “motion” to the court.  As for the assignment of only one case number—for the habeas proceeding—this was a clerical matter over which defendant had no control.  The trial court was required to consider the motion/petition filed under section 1172.6. [See] People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis) [where resentencing petition complies with the three facial sufficiency requirements of § 1172.6, subd. (b), the court proceeds to consider whether the petitioner has made a prima facie case for relief under subd. (c)].

Second Holding:  The abstract contains an error on whether the two counts were ordered served concurrently or consecutively.  Should the trial court determine defendant is ineligible for relief pursuant to section 1172.6, we direct the trial court to issue an amended abstract of judgment that corrects this error. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].

Case:  000122

The court failed to recalculate the actual time defendant had served pursuant to the sentence for which he was being resentenced and reflect those credits in the amended abstract of judgment. 

First Holding:  The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 37 [The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]; PC 2900.5

Second Holding:  Generally, a clerical error is one inadvertently made.  Clerical error can be made by a clerk, by counsel, or by the court itself.  A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts [See] People v. Schultz (1965) 238 Cal.App.2d 804, 808; In re Candelario (1970) 3 Cal.3d 702, 705.

Case:  000123

On appeal from his resentencing under section 1172.75, the defendant argues the trial court erred in failing to resentence him under the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (Reform Act)) to twice the principal term for the underlying crime, as opposed to the 25-year-to-life sentence it reimposed.  He also contends the trial court should recalculate his custody credits on remand.  The People concede both of these points.  We accept the People’s concession on this issue and the sentence calculations, vacate the defendant’s sentence, and remand for a full resentencing.

First Holding:  Even where the defendant is serving a sentence under the Three Strikes law, on recall the  trial court is required to apply the Three Strikes Reform Act in a section 1172.75 proceeding absent a finding of unreasonable risk of danger to public safety. [See] People v. Superior Court (Guevara) (2025) 18 Cal.5th 838.

Second Holding:  When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 37.

It’s nice to see magpies again. Several years ago they were pretty much wiped out by bird flu or something where I used to live. There were droves and droves of them, and then there weren’t. One of my favorite groups is a ten-member band called the Mad Maggies. I see them annually at the Cotati Accordion Festival.

I continue to be amazed at the frequency of errors in abstracts of judgment or minute orders or both.  And most of the errors contain information that, if relied on by the custodial institutions or in support of some future enhancements or charges, work against the defendants’ interests.  I do occasionally run across an abstract that understates the penalties imposed, because I review every unpublished criminal case that indicates a modification is necessary.  I report only those that provide a positive result for the defendant’s record of conviction, but they far outnumber the few that erroneously benefit a defendant.  

Out of nearly 400 cases I have summarized so far since I started collecting cases for this blog, nearly 19% have required correction of the abstracts and/or minute orders in some respect that favors the individuals.  It’s possible that no one in power looks at them, I suppose, so maybe the errors are harmless.  

I don’t happen to believe that, of course,  How would the prison or jail folks know how long to keep a prisoner if they don’t read the documents that purportedly report the sentence?  How would they know whether money has to be deducted from the prisoner’s wages, and how much? How would they know how much credit for time served (actual and conduct credits) must be applied toward the projected release date? And the abstract of judgment is important evidence supporting enhancements or alternative sentencing schemes in a defendant’s future cases. They can make a difference between a court imposing a life term under the Three Strikes Law or simply the choice from the normal triad available for the current conviction.

 I just keep feeling stronger and stronger about my advice that we need to check the abstracts of judgment as soon as we can.

Today we have somewhat of a shortened “to-go” menu.  Whew!

Summary

Yet another abstract of judgment needs correction, as it was off by at least three years for the date of the judgment.

Though Rhodius concluded that section 1172.75 was available where the enhancement for the prior prison term was imposed but stayed, it left open whether it applies if the prior prison term was actually stricken.  Today we have an unpublished opinion says yes, relying on a case that is pending in the Supreme Court.

The appellate court ordered the trial court to vacate any portion of various fees that were repealed.

Case:  000116

We did find an error in the abstract of judgment, which we will direct the trial court to correct. Whether the trial court clerk intended to record the date of the verdict or the date defendant was sentenced, the clerk failed to correctly record either.  We shall direct the trial court to correct the abstract accordingly.

Holding:  The abstract of judgment was incorrect.  It reflected the day of the year that the verdict was entered, except in 2021 rather than 2024.  The judgment itself was entered later in 2024.  We shall direct the trial court to correct the abstract accordingly. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors in the abstract of judgment]

Case:  000117 

The defendant petitioned for recall and resentencing pursuant to section 1172.75. Because punishments on his prison priors were stricken, the trial court ruled he was ineligible based on People v. Rhodius (2023) 97 Cal.App.5th 38, which our high court recently reversed in People v. Rhodius (2025) 17 Cal.5th 1050.  The question before us is whether section 1172.75 entitles the defendant to a resentencing hearing even though the enhancements were stricken for the purposes of sentencing. Rhodius explicitly did not reach this question. (Rhodius, at p. 1066, fn. 2.) We agree with defendant that he is entitled to resentencing pursuant to section 1172.75. 

Holding:  A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. [See] People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 (Espino); People v. Cota (2025) 112 Cal.App.5th 1118, 1133; People v. Rhodius (2025) 17 Cal.5th 1050

Case:  000118

The trial court’s judgment is modified to vacate any portions of the  probation related fees imposed by the trial court as part of probation condition No. 14 that remained unpaid as of July 1, 2021. 

First Holding:  Assembly Bill No. 1869 (2019-2020 Reg. Sess.) repealed the authority to collect various fees.  (See Stats. 2020, ch. 92, secs. 11, 62.)  The bill makes the unpaid balance of these fees unenforceable, uncollectible, and requires that any portion of a judgment imposing such fees be vacated.  [See] PC 1465.9.

Second Holding:  The defendant is entitled to the retroactive application of these ameliorative changes. [See] People v. Esquivel (2021) 11 Cal.5th 671, 680; People v. Clark (2021) 67 Cal.App.5th 248, 258

I think these are some of the retired stunt doubles from the famous Hitchcock movie filmed in Bodega and Bodega Bay more than 60 years ago.

And this is the third and final installment of today’s blurbs. (Remember, I’m breaking this into parts because it may facilitate searches–if I ever master that piece. Not to mention–but I will anyway–who has time to read a single post of nearly 5,000 words?)

So here’s what we have on the sub-sub-menu today (sorry folks, not sandwiches):

Summary

Remand for full resentencing because the trial court failed to conduct a full resentencing as required by section 1172.75.

A probation condition was held to be overbroad.

Yet another abstract of judgment needed correction.

Case:  000113

The trial court erred in finding the defendant was ineligible for a full resentencing hearing under section 1172.75, because his judgment includes a now-invalid prison prior and thus the court’s order must be reversed.  [The court had imposed and stayed the one-year prior prison term.] 

Holding:  Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed. [See] People v. Rhodius (2025) 17 Cal.5th 1050.

Case:  000114

The condition of probation that prohibits the defendant from “frequent[ing] any area where gang members are known by him/her to congregate, or areas known by him/her for gang related activity” is overbroad and can be more narrowly tailored by allowing the defendant’s probation officer to specify the areas involving gang-related activity. Accordingly, we modify the condition of probation that currently states that the defendant “shall not associate with any person known to him/her as a gang member and shall not frequent any area where gang members are known by him/her to congregate, or areas known by him/her for gang related activity.”  The condition is modified to read that the defendant “shall not associate with any person known to him/her as a gang member and shall not frequent any areas specified by his probation officer as involving gang-related activity, subject to reasonable exceptions to accommodate family, work, and educational needs as determined by his probation officer.”

First Holding:  The court’s discretion of the court to impose conditions of probation is not boundless.  The authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise.  A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.  Conversely, a condition of probation that requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. [See] PC 1203.1; People v. Cervantes (1984) 154 Cal.App.3d 353, 356; People v. Lent (1975) 15 Cal.3d 481, 486.

Second Holding:  The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.  As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [See] People v. Moran (2016) 1 Cal.5th 398, 403.

Third Holding:  As to the third prong of Lent, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense.  But the third prong “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [See] In re Ricardo P. (2019) 7 Cal.5th 1113, 1122; People v. Lopez (1998) 66 Cal.App.4th 615, 626 [relying on information in probation report for gang-related condition].

Fourth Holding:  Probation is a privilege and not a right, and adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights. [See] People v. Olguin (2008) 45 Cal.4th 375, 384.

Fifth Holding:  A probation condition that infringes a constitutional right is permissible if necessary to serve the dual purpose of rehabilitation and public safety.  However, a probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.  The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement. [See] People v. Burden (1988) 205 Cal.App.3d 1277, 1281; People v. Salvador (2022) 83 Cal.App.5th 57, 62-63; In re Sheena K. (2007) 40 Cal.4th 875, 890; In re E.O. (2010) 188 Cal.App.4th 1149, 1153.

Sixth Holding:  In Victor L., the defendant challenged for overbreadth and vagueness a condition of probation ordering him to stay away from areas known by him for gang-related activity.  The court distinguished between probation restrictions encompassing areas known for gang related crimes (which other courts had upheld against constitutional challenges) from restrictions involving gang-related activity.  Noting the word ‘activity’ is one of surpassing breadth that could banish the defendant from the area in which he lived, worked, or went to school, Victor L. determined that an individualized list of stay away areas, together with any exceptions necessary to reasonably accommodate the defendant’s legitimate work and educational needs was required.  Victor L. reasoned a probation officer, rather than the trial court, was in a better position to identify the forbidden areas for each defendant, using either geographic or activity-based limits.    Victor L. modified the condition to prohibit the defendant’s presence in areas known by him for gang-related activity (or specified by his probation officer as involving gang-related activity).  Other courts have imposed similar gang-area restrictions. [See] In re Victor L. (2010) 182 Cal.App.4th 902, 913-918, 931-932; People v. Barajas (2011) 198 Cal.App.4th 748, 754-760 [affirming condition that stated that the defendant was not to visit or remain in any specific location which he knows to be or which the probation officer informs him to be an area of criminal street gang-related activity]; In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [It would be altogether preferable to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work].

Case:  000115

We conclude that the abstract of judgment must be modified to accurately reflect the defendant’s presentence custody credits and his sentence on the attempted murder count. We accordingly modify the judgment to correct these sentencing errors and affirm the judgment as modified.

First Holding:  While a defendant sentenced to life in prison with the possibility of parole becomes eligible for parole after serving seven years, the correct sentence to be imposed remains life with the possibility of parole, plus any determinate enhancements.  The abstract of judgment, which currently describes the sentence on the attempted murder with premeditation and deliberation as “seven years to life,” must be corrected accordingly. [See] PC 3046(a)(1); PC 664(a); People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4 [shorthand pronouncement of seven years to life where statutory term is life with the possibility of parole is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility].

Second Holding:  The trial court miscalculated the credit for time served.  The defendant is entitled to three additional days, and the abstract of judgment must be modified accordingly.  [GARY NOTE:  The court did not provide any authority for this correction, most likely because it is so obvious that it must be corrected.  Authorities supporting the court’s order (but not cited by the court) could include PC 2900.5 and People v. Smith (1989) 211 Cal.App.3d 523, 527.]

I’m certain I see an ancient tree warrior in there, perhaps guarding the tree for centuries. His right arm is extended upward in a “Why I oughta” position, while his left is either scratching his lower back or perhaps holding onto the trunk of the tree.

So this is the second part of today’s posts, dealing with two separate murder cases. (Don’t be thrown by the case numbering. I recognized that case 000111 really brings nothing to the table–it was just a discussion of mootness, but no relief was granted in a case where the defendant wanted his day in court so he could clear his name, but the problem went away before he got to court, and the appellate court wasn’t going to provide a forum for a moot court. So I didn’t include it after all.)

Part of me feels like this is too much information, because I’m not writing a brief. But when I look at the snippets and explanations, I’m reminded that my whole purpose in summarizing unpublished opinions is to reflect their gold tidbits. Mostly pieces of jurisprudence that can crop up time and time again. Since it is not published, the facts of any case are pretty much irrelevant except to place the principals in context. And if you can learn the principles, it’s a bit like learning the times tables (“math facts,” I think my wife calls them from her teaching experience). Once you know them, they just roll off the tongue in many conversations. You don’t have to know whether the subject is dividing up the cupcakes among a dozen kids or how many bricks does it take to hold up a bookcase. You just know three kids get four each if you have a dozen thingies and three kids. In our context, you learn what the standard of review is for [pick a card any card and put it back in the deck], and you will impress the judge with your appellate or trial acumen.

Because both of these summaries are so long, I’ve taken the liberty to break some of the “Holding” parts into separate paragraphs. Maybe that will help ease the “so many words” shock.

Summary

The first case resulted in not a lot of relief. The court held that there was insufficient evidence to support the Lying in Wait allegation for first degree murder, but it concluded that other portions of the verdict necessarily showed that the jury also concluded there was premeditation and deliberation. Hence, first degree murder is first degree murder.

The second case resulted in a reversal of murder for insufficient evidence that the defendant was recklessly indifferent (the co-defendant was the actual killer). There were several major flaws in the abstracts of judgment (for both defendants). I stand by something I stressed in a previous post: We NEED to review abstracts of judgment, because mistakes really are quite common, and some of them are significantly damaging if relied on by a decision maker.

Case:  000110

The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait.  The jury was not required to agree unanimously on the theory.  He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation.  We conclude that insufficient evidence supports the finding of lying in wait.   One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence.  That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.

First Holding:  The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice. [See] PC 190.2(a)(15); People v. Flinner (2020) 10 Cal.5th 686, 74.

Second Holding:  To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim.  Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct.  The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise.  Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.

The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack.  To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise. [See] People v. Barrett (2025) 17 Cal.5th 897, 966–967; People v. Duong (2020) 10 Cal.5th 36, 67; People v. Stevens (2007) 41 Cal.4th 182, 204; People v. Clark (2016) 63 Cal.4th 522, 629; People v. Nelson (2016) 1 Cal.5th 513, 551; People v. Streeter (2012) 54 Cal.4th 205, 247.

Third Holding:  In assessing a challenge to the sufficiency of the evidence, we must 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.  The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding.  “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence. [See] People v. Brooks (2017) 3 Cal.5th 1, 57.

Fourth Holding:  A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.  The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.  In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.  

The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation.  Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based “solely” on lying in wait, rather than also on premeditation and deliberation.  The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder. [See] People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]; People v. Guiton (1993) 4 Cal.4th 1116, 1130.

Fifth Holding:  The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense.  Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder. [See] People v. Duff (2014) 58 Cal.4th 527, 561; People v. Rios (2000) 23 Cal.4th 450, 461; People v. Schuller (2023) 15 Cal.5th 237, 243; Chapman v. California (1967) 386 U.S. 18, 24.

Sixth Holding:  The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory.  “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial. [See] People v. Schuller (2023) 15 Cal.5th 237, 253; People v. Simon (2016) 1 Cal.5th 98, 132.

 Seventh Holding:  We review de novo a trial court’s decision not to give an imperfect self-defense instruction.  When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard.  Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.  Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.  

There was sufficient evidence of the aspects of lying in wait other than watchful waiting.  Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself. [See] People v. Simon (2016) 1 Cal.5th 98, 133; People v. Schuller (2023) 15 Cal.5th 237, 243; Chapman v. California (1967) 386 U.S. 18; People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]

Case:  000112

We affirm the judgment of conviction as to defendant A.  We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment.  The People concede both abstracts of judgment must be amended; we agree and remand with directions.  The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery.  Both defendants were charged with second degree robbery, and the juries were instructed only on that theory.  There are several other errors in the abstracts of judgment that must be corrected.

First Holding:  When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt.  If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [See] People v. Navarro (2021) 12 Cal.5th 285, 302; People v. Albillar (2010) 51 Cal.4th 47, 60.

Second Holding:  Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault.  A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts.  A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.  Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission.  However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense. [See] People v. McCoy (2001) 25 Cal.4th 1111, 1117; People v. Hill (1998) 17 Cal.4th 800, 851; People v. Campbell (1994) 25 Cal.App.4th 402, 409 .

Third Holding:  Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven:  (1) The person was the actual killer.  (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer.  (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life. [See] PC 189(e).

Fourth Holding:  There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life:  “What role did the defendant have in planning the criminal enterprise that led to one or more deaths?  What role did the defendant have in supplying or using lethal weapons?  What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants?  Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death?  What did the defendant do after lethal force was used?  Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. [See] People v. Banks (2015) 61 Cal.4th 788, 803; People v. Clark (2016) 63 Cal.4th 522, 615.

Fifth Holding:  Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)).  We need not decide whether, under the circumstances of this case, defendant was a major participant  because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life.  The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31.  The special circumstance requires that the defendant be a major participant in the underlying felony.  

Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder.  The special circumstance requires that the defendant have reckless indifference to human life.  A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life.  Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions.  Reckless indifference encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of the defendant’s actions.  Reckless indifference to human life has both a subjective and an objective element [See] People v. Clark (2016) 63 Cal.4th 522, 615-617; People v. Banks (2015) 61 Cal.4th 788, 794, 807-810; People v. Strong (2022) 13 Cal.5th 698, 706; In re Scoggins (2020) 9 Cal.5th 667, 677.

Sixth Holding:  In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim.  The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim.  This factor weighs against a finding of reckless indifference.  Defendant B had no meaningful opportunity to aid the victim before the shooting.  

However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed.  It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed.  Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability.  While it is true a defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a grave risk of death, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity. [See] People v. Emanuel (2025) 17 Cal.5th 867, 894-895; Tison v. Arizona (1987) 481 U.S. 137, 157.

Seventh Holding:  The abstracts of judgment contain several errors that must be corrected.  The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery.  The verdict forms do not specify the degree of the robberies.  But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree.  Therefore, we conclude that the robberies in the three counts are in the second degree.

The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment.  As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts.  However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].”  Given this discrepancy, the oral pronouncement of judgment controls. [See] PC 1157; People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.

The photo doesn’t do justice for this mighty oak, but I found myself staring at it for quite some time, admiring how it just all fits together.

My goodness gracious! There were some extensive opinions filed on this batch’s date. I’m talkin’ 20 to nearly 40 pages! I’m used to the 10 to 20 pagers, but when the cases get into appeals from current murders and the like (as opposed to past murders up for resentencing under section 1172.6’s recall of sentence provisions), there is a lot of substance. I’m taking my advice this time and breaking it into at three separate posts. The middle post discusses several aspects of two murder cases, so I’ve kept them together.

Summary

Because serious bodily injury is sufficiently akin to great bodily injury in this context, it was error to impose a great bodily injury enhancement under PC 12022.7 for the crime of battery with serious bodily injury under PC 243.

It was proper for a court to not conduct full resentencing under 1172.75 because of its finding that it would risk public safety (as defined under the Three Strikes Reform Act of 2012, since the defendant was serving a Three Strikes sentence). There were several errors in the abstract of judgment that need correction.

We learn that it isn’t criminal threats if the victim does not harbor sustained fear.

As it happens, a person cannot be found in violation of probation for misconduct that occurred after the probation term ended, even though probation had been summarily revoked when he did not show for sentencing in 1998.

Case:  000106

The section 12022.7, subdivision (a) enhancement, which was stayed at sentencing, must instead be stricken under subdivision (g) of the statute because infliction of great bodily injury is an element of battery with serious bodily injury; and the trial court improperly limited his presentence conduct credits to 15 percent of actual days served.

First Holding:  A sentence cannot be enhanced by section 12022.7 for infliction of bodily injury if that is an element of the underlying offense. [See] PC 12022.7(g).

Second Holding:  Great bodily injury is an element of battery with serious bodily injury. [See] People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375–1376 ; People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550; People v. Johnson (2016) 244 Cal.App.4th 384, 391; People v. Arnett (2006) 139 Cal.App.4th 1609, 1616; People v. Hawkins (2003) 108 Cal.App.4th 527, 531; People v. Beltran (2000) 82 Cal.App.4th 693, 696–697.

Third Holding:  Serious bodily injury is the “essential equivalent” of great bodily injury [See] People v. Burroughs (1984) 35 Cal.3d 824, 831; People v. Sloan (2007) 42 Cal.4th 110, 117 [noting that a true finding on a great bodily injury enhancement would effectively establish the elements of the charged battery with serious bodily injury].

Fourth Holding:  PC 246 is not a violent felony per se so PC 2833.1 does not limit behavior credit to 15%. [See] In re Cabrera (2023) 14 Cal.5th 476, 491.

Case:  000107

The trial court modified the defendant’s sentence only to the extent required under sections 1172.75 and 1170.18, but otherwise left the balance intact, finding that the defendant remained a danger to the public.  The case is remanded for the trial court to calculate the days of actual custody and to correct the abstract of judgment.

First Holding:  Because the sentence was modified under PC 1172.75, the trial court erred in not calculating the actual days in custody. [See] PC 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 37.

Second Holding:  We review the trial court’s finding that imposing a lesser sentence would endanger public safety under the clear and convincing evidence standard.  [See] PC 1172.75(d)(1).

Third Holding:  The clear and convincing evidence standard requires the party with the burden of proof to convince the trier of fact that it is “highly probable” the facts which he asserts are true. [See] Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.

Fourth Holding:  The narrow definition of danger to public safety under PC 1170.18 does not apply to the undefined term of the Three Strikes Reform Act of 2012, [See] People v. Valencia (2017) 3 Cal.5th 374, 374-375.

 Fifth Holding:  [GARY NOTE: after the opinion in this case 000107 was filed, the Supreme Court ruled that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable  risk to public safety” in order to reconcile the application of section 1172.75 (enacted by the Legislature) to those who would otherwise qualify but are serving a sentence under the Three Strikes Law (an initiative provision).  See People v. Superior Court (Guevara) (2025) 18 Cal.5th 838.]

Sixth Holding:  The abstract of judgment incorrectly reflects a determinate term of 14 years instead of 10 years, and it must be corrected.  [GARY NOTE:  The court did not cite authority, most likely because the error and solution are obvious.  There are many relevant cases supporting this holding, such as People v. Hamed (2013) 221 Cal.App.4th 928, 937–938; People v. Price (2004) 120 Cal.App.4th 224, 242; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Jones (2012) 54 Cal.4th 1, 89.]

Case:  000108

The defendant appeals his conviction of violating Penal Code  section 422.  We reverse the judgment because there was no substantial evidence that the victim of the crime experienced sustained fear.  

First Holding:  Elements of PC 422 include: that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family’s safety, and that the threatened person’s fear was reasonable under the circumstances. [See] PC 422(a); People v. Toledo (2001) 26 Cal.4th 221, 227–228.

Second Holding:  Sustained fear must occur over a period of time that extends beyond what is momentary, fleeting, or transitory.  Ordinarily, sustained fear lasts beyond the moments of the encounter. [See] People v. Roles (2020) 44 Cal.App.5th 935, 942; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.

Third Holding:  Courts have held that 15 minutes satisfies the sustained fear requirement [See] People v. Roles (2020) 44 Cal.App.5th 935, 942; People v. Wilson (2015) 234 Cal.App.4th 193, 201; People v. Allen (1995) 33 Cal.App.4th 1149, 1156.

Fourth Holding:  Under circumstances not applicable here a shorter duration of fear, or fear confined to the length of the encounter, may be sufficient.  a victim may experience sustained fear even though the fear exists only during the incident itself.  In Brugman, the incident was a drawn-out ordeal.  Similarly, if the circumstances are extreme enough—such as when a person believes they will be killed imminently—even one minute can be enough time for fear to be sustained.  [See] People v. Brugman (2021) 62 Cal.App.5th 608, 634; People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.

Fifth Holding:  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.  In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is ‘of solid value. )  Reasonableness is the ultimate standard under the substantial evidence rule. [See] People v. Collins (2025) 17 Cal.5th 293, 307 ; People v. Kunkin (1973) 9 Cal.3d 245, 250.

Case:  000109

The court revoked the defendant’s probation and sentenced him to six years in prison.  Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse. 

First Holding:  When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision.  However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period.  In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation. [See] PC 1203.2(a); People v. Leiva (2013) 56 Cal.4th 498, 502.

Second Holding:  Revocation of probation rests in the sound discretion of the court.  Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it. [See] People v. Zaring (1992) 8 Cal.App.4th 362, 378.

Third Holding:  A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition. [See] People v. Leiva (2013) 56 Cal.4th 498, 379; People v. Galvan (2007) 155 Cal.App.4th 978, 982.

Fourth Holding:  The facts supporting revocation of probation may be proven by a preponderance of the evidence.  However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation. [See] People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation].