Category Archives: Appellate Principles

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing, Standard of review

Case 001011

Posted on by Gary McCurdy

Error and/or relief

The court erred in ruling that the defendant was ineligible for resentencing under section 1172.75 because the abstract of judgment did not reflect any now-invalid prior prison term enhancements. The abstract of judgment was in error.

First Holding:

Before 2020, the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony. Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses.

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Authority:

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050, 1053-1054

Second Holding:

In section 1172.75(b), the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes such an enhancement. Section 1172.75(b) requires the California Department of Corrections and Rehabilitations to identify for the sentencing courts all persons currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(b) and (c)

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

People v. Garcia (2024) 101 Cal.App.5th 848, 855 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.]

Fourth Holding:

We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the court’s application of the law to the facts is arbitrary or capricious. However, where the appeal from a resentencing order raises a question of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856, 857

People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word imposed as used in 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affirmed (2026) 20 Cal.5th 57

Fifth Holding:

The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. In this instance, the prior convictions were never stricken, and thus should have been reflected in the abstract of judgment. The defendant was eligible for resentencing under section 1172.75.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.]

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001004

Posted on by Gary McCurdy

Error and/or relief

On appeal following remand from the defendant’s first appeal, the trial court failed to impose sentence on several counts whose punishment it stayed under section 654. It failed to impose a fine on a fifth count, and it improperly reimposed several other fines.

First Holding:

The court’s failure to pronounce sentence on some of the counts constitutes an unauthorized sentence. When a trial court determines that section 654 applies, the court must impose sentence on every count but stay execution as necessary to implement section 654. This procedure also applies when one of the sentences pertains to a misdemeanor conviction.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

People v. Mani (2022) 74 Cal.App.5th 343, 380

Second Holding:

The defendant’s conviction under Vehicle Code section 23152(a) (driving under the influence) requires a fine, but the court failed to impose a fine.

Authority:

VEH 23536(a)

VEH 23600

People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as one that cannot lawfully be imposed under any circumstances in a particular case]

Third Holding:

Having concluded that the trial court’s failure to impose sentences and to impose a fine resulted in an unauthorized sentence, we also conclude that remand is required to correct the errors. In other cases, we have exercised our authority under section 1260 to modify judgments in sentencing matters where remand would be futile or unnecessary because the record clearly indicated how the trial court would exercise its sentencing discretion.

Here, however, the trial court did not impose sentences on counts two, four, seven, and nine or the firearm enhancement associated with count two, or impose a fine on count six, either at the original sentencing or at the section 1172.75 resentencing. Given the range of sentencing options for the omitted counts and enhancement and the permissible range of the fine on count six, the record does not clearly indicate what sentences or fine the court would have imposed. Accordingly, remand is required.

Authority:

People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

We disagree with the People that on remand, the defendant is entitled to a full resentencing. Section 1260 grants appellate courts the authority to order limited remands for further proceedings that may be appropriate under the circumstances. In resentencing the defendant in 2025, the trial court considered the relevant factors in formulating a sentence it deemed appropriate based on his culpability, criminal history, and his risk of future dangerousness.

The two limited tasks on remand (imposing and staying sentences on the omitted counts that the court had already indicated it intended to stay and imposing a fine on count six) will not alter the overall sentencing scheme the trial court deemed appropriate such that resentencing on all nine counts would be required.

For these reasons, we order a limited remand.

Authority:

PEN 1260

People v. Wilson (2024) 16 Cal.5th 874, 948-949

People v. Stevens (1988) 205 Cal.App.3d 1452, 1456 [Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format]

Fifth Holding:

The court erred in reimposing and staying several fees, despite making an implied finding that the defendant did not have an ability to pay. Equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Neither of the applicable statutes nor Kopp allows a trial court to impose then stay the court operations fee or the court facilities fee after it finds a defendant indigent. Once it found the defendant lacked the ability to pay, the court’s option was to not impose the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Sixth Holding:

The statutes authorizing certain other fees that were previously imposed have since been repealed and are now unenforceable and uncollectible. Any portion of a judgment imposing those fees must be vacated.

Authority:

GOV 6111(a)

Abstracts and Minutes, Appellate Principles, Sentencing, Standard of review

Case 001003

Posted on by Gary McCurdy

Error and/or relief

The verdict form contained a typographical error regarding the appropriate subdivision on the use of firearm enhancement. The reference to subdivision (d) in the verdict from is stricken. There are several errors in the abstract of judgment and minute order that require correction.

First Holding:

A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.

Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. Here, inclusion of subdivision (d) in addition to subdivision (a) was clearly a clerical error, and must be stricken from the judgment.

Authority:

People v. Jones (2014) 230 Cal.App.4th 373, 378–379

People v. Webster (1991) 54 Cal.3d 411, 447

People v. Camacho (2009) 171 Cal.App.4th 1269, 1273

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Second Holding:

The minute order fails to reflect that on motion by the prosecution the court dismissed the factors in aggravation. It must be corrected to reflect the dismissal. The abstract of judgment reflects that the defendant must pay [more than $10,000] to the Victim Compensation Board twice. The duplicate entry must be stricken from the abstract of judgment. There is an error on the abstract of judgment in reflect the determinate term where an indeterminate term has also been imposed, and the abstract of judgment must be corrected accordingly.

(Gary note: The court cited no authority for its orders directing the corrections, except for Wright, which it cited to demonstrate how the abstract should have been prepared. I have include some cases that the court could have drawn from as authority, had it felt it necessary.)

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, in section six, the determinate form CR-290 must show no time]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Appellate Principles, Fines and fees, Plea bargains, Sentencing

Case 000997

Posted on by Gary McCurdy

Error and/or relief

The approved plea agreement provided for dismissal of count II, but that count was not dismissed at sentencing. Further, the court failed to impose a suspended parole revocation fine matching the amount imposed as the restitution fine.

The judgment is modified to dismiss count II and impose a $300 parole revocation fine, which shall be suspended unless parole is revoked. As modified, the judgment is affirmed. The trial court is directed to amend the sentencing minute order to reflect this modification. However, because the abstract of judgment already reflects the $300 suspended parole revocation fine, no amendment of that document is necessary.

First Holding:

When a guilty or no contest plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80

Second Holding:

When the trial court imposes a sentence that includes a period of parole, and it also imposes a restitution fine, a matching suspended parole revocation fine must be imposed. Omission of a mandatory parole revocation fine is an unauthorized sentence that we can correct on appeal.

Authority:

PEN 1202.45

People v. Smith (2001) 24 Cal.4th 849, 853

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000990

Posted on by Gary McCurdy

Error and/or relief

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a restitution fine, a stayed parole revocation fine, a court operations assessment, and a criminal conviction assessment. The abstract of judgment must be corrected.

First Holding:

Where there is a discrepancy between the oral imposition of sentence on the one hand and the minutes and abstract of judgment on the other, the oral judgment controls. An abstract of judgment must be corrected if it does not reflect the oral judgment accurately.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389

Second Holding:

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a $300 restitution fine, a $300 stayed parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment.

Authority:

PEN 1202.4

PEN 1202.45

PEN 1465.8

GOV 70373

Third Holding:

We decline to remand the matter because no party objected to the trial court’s failure to impose fines and fees at sentencing. All claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. Appellate courts may not correct a discretionary sentencing choice if the People failed to object at sentencing.

A restitution fine under section 1202.4 is a discretionary sentencing choice. And by waiving any objection to the restitution fine, the People also effectively waive any objection to the parole revocation fine, because the parole revocation fine must match the restitution fine as a matter of law.

As to the court operations assessment and the criminal conviction assessment, neither party asserts that the trial court’s failure to impose these fees was unauthorized or reflects an obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings.

Absent such an argument, we decline to disturb the judgment.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852-853

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153

People v. Tillman (2000) 22 Cal.4th 300, 303

People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case]

People v. Kopp (2025) 19 Cal.5th 1, 30 [equal protection principles permit trial courts to waive fees under sec. 1465.8 and Gov. Code, sec. 70373, upon request, where defendant lacks ability to pay]

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Elements of crime, Sentencing

Case 000983

Posted on by Gary McCurdy

Error and/or relief

The convictions on counts 1 and 2 (domestic violence and assault with a deadly weapon) are based on the same act of striking the victim with his vehicle and therefore he cannot be punished for both.

First Holding:

Under section 654(a), an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. That the purpose of section 654 is to insure that a defendant’s punishment will be commensurate with the defendant’s culpability.

Authority:

PEN 654

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Second Holding:

A substantial evidence standard of review applies to the trial court’s determination of the applicability of section 654. We review the trial court’s factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

Third Holding:

When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section. A concurrent sentence simply does not satisfy the prohibition against double punishment. We will therefore modify the judgment ourselves to stay the sentence on count 2 in accordance with section 654.

Authority:

People v. Pena (1992) 7 Cal.App.4th 1294, 1312

People v. Bey (2025) 108 Cal.App.5th 144, 167–168

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority under sec. 1260 to modify judgment rather than remand as remedy for trial court’s failure to impose and stay sentence]

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Smith (2001) 24 Cal.4th 849, 852

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000975

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand for resentencing because the trial court erroneously believed the law required it to impose consecutive sentences for every count.

First Holding:

Under section 667.61(i), consecutive sentences are mandatory only to offenses listed in section 667.61(c), paragraphs (1) through (7). The crime of which the jury found the defendant guilty is described in 667.61(c), paragraph (8).

Thus, consecutive sentencing was not mandatory.

Authority:

PEN 667.61(c)

Second Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

When a sentencing court was not aware of the full scope of its discretionary powers at the time the defendant was sentenced, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

People v. Salazar (2023) 15 Cal.5th 416, 419

Third Holding:

The Attorney General argues that the defendant forfeited his sentencing contention by failing to object below to the court’s error, and that the defendant cannot show his counsel was ineffective for failing to object because it was not reasonably likely the court would have imposed anything less than the 150-year sentence that it did.

We exercise our discretion to reach the question, notwithstanding forfeiture.

Authority:

People v. Leon (2016) 243 Cal.App.4th 1003 [the trial court’s erroneous understanding that it had no discretion to impose concurrent sentences may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection, and in any event, we would exercise our discretion to resolve the claim in the interests of fairness and judicial economy and to forestall unnecessary ineffective assistance of counsel claims.]

People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fourth Holding:

The trial court’s repeated references to section 667.61(i)’s requirement that it impose consecutive sentences leaves no doubt that the court here did not know it retained the discretion to impose concurrent sentences per victim.

The court provided no other reason for imposing consecutive sentences, including no comment that the aggravating factor warranted a maximum sentence or any similar comment.

We therefore cannot conclude that the record clearly indicates the court would have imposed the same sentence if it had understood its full sentencing discretion. We accordingly remand the matter for resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

One of the defendant’s counts must be vacated because it was time-barred.

First Holding:

There is a three-year statute of limitations for reckless indifference to an animal’s suffering.

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

There is a relation-back provision, meaning a prosecutor could file charges late if they involved the same conduct alleged in charges that were timely filed. (Former sec. 803, subd. (b) [eff. Jan. 2018].) The relation-back provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct.

In other words, the relation-back provision does not function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant during the same time frame as an offense charged in a pending prosecution.

Authority:

People v. Terry (2005) 127 Cal.App.4th 750, 769

Third Holding:

The defendant requests that, on remand, he should be granted leave to file a motion for new trial on the grounds that the jury may have been influenced by the evidence presented on the time-barred-now-vacated count.

A motion for new trial must be made and determined before the making of an order granting probation. The defendant has been granted probation. The trial court lack jurisidiction to rule on a motion for new trial.

Authority:

People v. Martin (1963) 60 Cal.2d 615, 618

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000952

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in pronouncing judgment regarding custody credits. Though the court announced the actual and conduct amounts separately and correctly, the court announced an incorrect total of the two. We modify the judgment accordingly.

Holding:

the trial court awarded the defendant 98 days of actual credit and 98 days of conduct credit (sec. 4019), but made a mathematical error in announcing the defendant’s total credit as 180 days rather than 196 days. The abstract of judgment already reflects the proper total and need not be corrected, but we modify the judgment to reflect the correct total.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment]