Category Archives: Appellate Principles

Appellate Principles, Elements of crime, Sentencing, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000132

Posted on by Gary McCurdy

Error and/or relief

We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.

First Holding:

In considering the sufficiency of evidence, we must determine 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. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 690

People v. Baker (2021) 10 Cal.5th 1044, 1103

People v. Young (2005) 34 Cal.4th 1149, 1181

Second Holding:

In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime. Rather, the victim must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.”

Authority:

People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316

Third Holding:

The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.

As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim.

We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 246

People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]

People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073

People v. Veale (2008) 160 Cal.App.4th 40, 44, 47

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321

Fourth Holding:

A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.

Authority:

PEN 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]

People v. Williams (1945) 27 Cal.2d 220, 226

People v. Maury (2003) 30 Cal.4th 342

Fifth Holding:

A lesser offense is necessarily included in a charged offense if one of two tests is met: either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed (the “accusatory pleading test”). We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other.

Authority:

People v. Lopez (1998) 19 Cal.4th 282, 288–289

People v. Cheaves (2003) 113 Cal.App.4th 445, 454

People v. Ortega (1998) 19 Cal.4th 686, 698

Sixth Holding:

Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act]

Seventh Holding:

We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious. An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered. The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.

Authority:

People v. Gomez (2023) 97 Cal.App.5th 111, 116

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

People v. Tran (2022) 13 Cal.5th 1169, 1207

In re Estrada (1965) 63 Cal.2d 740, 745

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

In re Estrada (1965) 63 Cal.2d 740

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

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

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

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

Third 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. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Appellate Principles

Case: 000124

Posted on by Gary McCurdy

Error and/or relief

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. The People do not oppose the request. Granted. [GARY NOTE: the third, fourth, fifth, and sixth holdings and their authorities are provided by GARY and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.]

First Holding:

Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely.

Authority:

Authority:
In re Benoit (1973) 10 Cal.3d 72, 81–82

Second Holding:

The Attorney General’s concession on behalf of the People is deemed to constitute an agreement that the requested relief ought to be granted without further proceedings

Authority:

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Third Holding:

In felony cases, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

Authority:

Rules of Court, rule 8.308

Fourth Holding:

In misdemeanor cases, the notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Authority:

Rules of Court, rule 8.393

Fifth Holding:

As used in rule 8.304(a)(1) regarding the filing of a notice of appeal in the superior court in a felony case, “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b).

Authority:

Rules of Court, rule 8.304(a)(2)

Sixth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal

Authority:

AD

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Appellate Principles, Jury trial

Case: 000118

Posted on by Gary McCurdy

Error and/or relief

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.

Authority:

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.

Authority:

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.

Authority:

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.

Authority:

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.

Authority:

CCP 231.7(g)(1)(A) and (B)

Sixth Holding:

he 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.

Authority:

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).]

Authority:

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]

Eighth Holding:

[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.

Authority:

People v. Hannon (2016) 5 Cal.App.5th 94, 105

Appellate Principles

Case: 000110

Posted on by Gary McCurdy

Error and/or relief

[Gary note: This appeal was dismissed as moot, and there was no “victory,” even in my very broad definition. But it contains a decent discussion on mootness that might provide some insight into the appellate process.] The defendant complains of terms set on his mandatory supervision. But he has completed his term of mandatory supervision. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide the defendant with any relief, his appeal challenging the term of mandatory supervision is moot. We will therefore dismiss it.

First Holding:

A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. Consequently, when, pending an appeal from the judgment of a lower court, and without any fault of the opposing party, an event occurs which renders it impossible for the court, if it should decide the case in favor of the defendant, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal as moot.

Authority:

People v. Rish (2008) 163 Cal.App.4th 1370, 1380

People v. DeLeon (2017) 3 Cal.5th 640, 645

Second Holding:

Where a defendant has completed a sentence, their claims of error as to that sentence are moot because a reviewing court’s resolution of the issues could offer no relief regarding the time he spent on mandatory supervision or in custody. A defendant must demonstrate sufficiently concrete consequences to avoid a finding of mootness. Speculative consequences do not support the conclusion that a legally sufficient controversy exists. Complaining of stigma alone is insufficient to sustain an appeal. The stigma must be paired with some effect on the legal status that is capable of being redressed by a favorable court decision. The moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.

Authority:

People v. DeLeon (2017) 3 Cal.5th 640, 645, 646, fn. 2

In re D.P. (2023) 14 Cal.5th 266, 277

People v. Armas (2024) 107 Cal.App.5th 350, 357

Third Holding:

The defendant urges us to consider the merits of his appeal despite its mootness, because the issue raised is likely to recur, might otherwise evade appellate review given the “relatively fleeting nature of mandatory supervision,” and is of continuing public interest, within the meaning of Morales. We decline to do so. Many published California cases have shown varying terms of supervision, many of which cannot be characterized as fleeting. Because we conclude that the issue raised by the defendant is capable of being reviewed in other cases and any ruling in this case would fail to provide appellant with any relief, his appeal challenging the term of mandatory supervision is moot.

Authority:

People v. Morales (2016) 63 Cal.4th 399, 409

People v. Nixon (2025) 111 Cal.App.5th 947, 950 [five years of mandatory supervision]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 [three years of mandatory supervision]

People v. Martinez (2020) 54 Cal.App.5th 885, 890 [two years eight months of mandatory supervision]

People v. Conatser (2020) 53 Cal.App.5th 1223, 1225 [six years of mandatory supervision]

People v. Mendoza (2020) 44 Cal.App.5th 1044, 1050 [four years of mandatory supervision]

People v. Samuels (2018) 21 Cal.App.5th 962, 965 [five years of mandatory supervision]

People v. Millan (2018) 20 Cal.App.5th 450, 452 [five years of mandatory supervision]

People v. Bollaert (2016) 248 Cal.App.4th 699, 704 [10 years of mandatory supervision]

Appellate Principles, Sentencing, Standard of review

Case: 000104

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.

First Holding:

Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law. This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

Authority:

PEN 654

People v. Corpening (2016) 2 Cal.5th 307, 309

People v. Perez (1979) 23 Cal.3d 545, 551

Second Holding:

Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal. However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5

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

People v. Goode (2015) 243 Cal.App.4th 484, 493

People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim]

Third Holding:

A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.

Authority:

People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11

People v. Kwok (1998) 63 Cal.App.4th 1236, 1253

Appellate Principles, Sentencing

Case: 000103

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct.

Authority:

PEN 654

People v. Harrison (1989) 48 Cal.3d 321, 335

Second Holding:

Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Third Holding:

The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Fourth Holding:

An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances.

Authority:

PEN 1260

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

Amelioration, Appellate Principles, Discretion, Sentencing, Standard of review, Statutory interpretation

Case: 000095

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Dixon (2025) 112 Cal.App.5th 236, 243, review granted Oct. 22, 2025, S292223

Second Holding:

We conclude the superior court erred by applying an incorrect legal standard in denying the defendant’s request to dismiss the five-year enhancement for the prior serious felony. Section 1385 provides that the court shall dismiss an enhancement if it is in the furtherance of justice to do so. It also provides that, in exercising its discretion, the court must consider and afford great weight to evidence offered by the defendant to prove any of nine listed mitigating factors, unless the court finds that dismissal of the enhancement would endanger public safety. If the court does not find dismissing an enhancement would endanger public safety, the court must consider whether the defendant has presented evidence of one or more of the mitigating factors listed in section 1385. If so, the court must engage in a holistic balancing with special emphasis on the [nine] enumerated mitigating factors and must dismiss the enhancement unless the court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1033, 1036

Third Holding:

Without the benefit of Walker, decided several months after the resentencing, the superior court did not apply the correct legal standard. It did not find that reducing the sentence by five years would endanger public safety. Nor did it consider dismissing the prior conviction that was more than five years old, instead relying on the fact that the original court found the prior conviction to be true. By deferring to the original trial court on whether to strike the serious felony conviction enhancement, the superior court ignored section 1172.75’s mandate to apply changes in law that reduce sentences or provide for judicial discretion. In 2015 the trial court had to impose the five-year prior serious felony enhancement under section 667, subdivision (a)(1), but effective 2019, SB 1393 gave trial courts discretion to strike that enhancement under section 1385. In addition, section 1172.75 authorized the superior court to consider postconviction factors, such as the defendant’s disciplinary record and rehabilitation while in prison, his age, and his physical condition—factors not available to the trial court in 2015.

Authority:

People v. Carter (2023) 97 Cal.App.5th 960, 968 [simply striking the one-year enhancement imposed under the repealed portion of former section 667.5(b) deprived the defendant of his right to full resentencing under the changes in the law]

People v. Coddington (2023) 96 Cal.App.5th 562, 567 [court erred by failing to provide the defendant with a full resentencing hearing, meaning a hearing in which he could have sought further sentencing relief under at least two other statutes that were enacted after his conviction]

People v. Rogers (2025) 108 Cal.App.5th 340, 361

Fourth Holding:

The superior court’s error was prejudicial because the record does not clearly indicate the court would have reached the same conclusion had it applied the correct legal standard.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424 [where the trial court fails to exercise informed discretion, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [same]

People v. Monroe (2022) 85 Cal.App.5th 393, 402 [remand was required where the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion]

Fifth Holding:

On remand, the superior court should consider whether dismissing the prior serious felony enhancement and reducing the defendant’s sentence from 25 years six months to 20 years six months would endanger public safety. If the court does not make that finding, it should dismiss the enhancement, unless it finds substantial, credible evidence of countervailing factors that neutralize the great weight of any applicable mitigating circumstance enumerated in section 1385(c)(2), including that the enhancement was based on a prior conviction that was more than five years old.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 230-231 [in assessing whether dismissing an enhancement would endanger public safety, the trial court should have considered the date on which the defendant could be released if the enhancement was dismissed, not only whether the defendant currently posed a danger to the public]

Sixth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

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

Seventh Holding:

In reviewing matters of statutory interpretation we review the trial court’s decision de novo.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

People v. Braden (2023) 14 Cal.5th 791, 804 [The interpretation of a statute presents a question of law that this court reviews de novo]

Appellate Principles, Elements of crime, Jury trial, Sufficiency of and substantial evidence

Case: 000094

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

PEN 209(b)(1)–(2)

People v. Rayford (1994) 9 Cal.4th 1, 11–12

People v. Waqa (2023) 92 Cal.App.5th 565, 577

People v. Nguyen (2000) 22 Cal.4th 872, 886

Second Holding:

In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.

Authority:

People v. Williams (2017) 7 Cal.App.5th 644, 671

Third Holding:

Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 470

Fourth Holding:

If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.

Authority:

People v. Daniels (1969) 71 Cal.2d 1119, 1140

People v. Power (2008) 159 Cal.App.4th 126, 139

People v. Leavel (2012) 203 Cal.App.4th 823, 834

People v. Dominguez (2006) 39 Cal.4th 1141, 1152

People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]

Fifth Holding:

In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.

Authority:

People v. Hartland (2020) 54 Cal.App.5th 71, 77

Sixth Holding:

Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

PEN 1181, subd. 6

PEN 1260

People v. Bailey (2012) 54 Cal.4th 740, 748

People v. Ellis (2025) 108 Cal.App.5th 590, 601

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 671

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case: 000092

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.

Authority:

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

Second Holding:

Effective January 1, 2020, SB 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, sec. 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (sec. 667.5(b)).

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

Third Holding:

Effective January 1, 2022, SB 483 made the change retroactive to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

Fourth Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken.

Authority:

PEN 1172.75

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

Fifth Holding:

An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground.

Authority:

People v. Battle (2021) 11 Cal.5th 749, 800

Sixth Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

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

Seventh Holding:

The abstract may be corrected at any time when it does not reflect the oral pronouncements.

Authority:

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