Category Archives: Duty of the court

Appellate Principles, Duty of the court, Jury instructions, Standard of review

Case 000344

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred and violated his due process rights by failing to provide a self-defense instruction as to the lesser included battery offense. We reverse defendant’s misdemeanor simple battery conviction.

First Holding:

The trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239

Second Holding:

We independently review claims of instructional error. We examine the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Houston (2012) 54 Cal.4th 1186, 1229

Third Holding:

Under appropriate circumstances a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case. But a trial court need not give a pinpoint instruction if it is argumentative , merely duplicates other instructions , or is not supported by substantial evidence. However, a defendant bears the burden of requesting a pinpoint instruction; a trial court has no sua sponte duty to provide one.

Authority:

People v. Bolden (2002) 29 Cal.4th 515, 558

People v. Gutierrez (2009) 45 Cal.4th 789, 824

Fourth Holding:

Furthermore, a trial court must instruct the jury sua sponte on general principles of law applicable to the case, including any defense supported by substantial evidence that is not inconsistent with the defendant’s theory of the case. In deciding whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the evidence, but only whether there is evidence which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt.

Authority:

People v. Villanueva (2008) 169 Cal.App.4th 41, 49

People v. Barton (1995) 12 Cal.4th 186, 195

People v. Orlosky (2015) 233 Cal.App.4th 257, 269-270

Fifth Holding:

Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. But that rule does not apply when the trial court gives an instruction that is an incorrect statement of the law. Moreover, a failure to object to instructional error will not result in forfeiture if the error affects the defendant’s substantial rights. In this instance, the trial court on its own modified the instruction on the lesser included offense of battery by omitting the element of lack of self-defense, and directing the jury to consider self-defense solely on the question of whether he acted in self-defense on the greater offense of inflicting corporal injury. The instruction affirmatively and erroneously precluded the jury from considering the self-defense evidence in connection with the lesser included battery charge.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Townsel (2016) 63 Cal.4th 25, 60

Sixth Holding:

The California Supreme Court has yet to determine whether a trial court’s failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error. We need not resolve the question in this case, because the error was prejudicial even under the state law standard. Under that standard, reversal is warranted if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. In this context, a probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Gonzalez (2018) 5 Cal.5th 186, 199

People v. Salas (2006) 37 Cal.4th 967, 984

Chapman v. California (1967) 386 U.S. 18, 24 [federal harmlessness standard]

People v. Watson (1956) 46 Cal.2d 818, 836-837 [state law harmlessness standard]

Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050

Duty of the court, Sentencing, Standard of review

Case: 000336 (There is no 000335)

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence for either the assault or the battery conviction.

First Holding:

Although Code of Civil Procedure section 269 provided defendant with a statutory right to a certified shorthand reporter rather than an electronic recording, we conclude violation of that statutory right was harmless. The proceedings were recorded electronically and extensive transcripts were prepared based on the recordings.

The California Supreme Court has held that the trial court’s failure to comply with Penal Code section 190.9, requiring that all proceedings in a capital case be conducted on the record with a court reporter present, was harmless where the record was nevertheless adequate to permit meaningful appellate review.

Similarly, here, defendant possessed a statutory right to a certified court reporter, but the trial court’s inability to comply with that right, regardless of the reason, was harmless so long as the electronic recording produced an adequate appellate record.

(Gary note:  You might want to look at Family Violence Appellate Project v. Superior Court (Contra Costa County) 8/10/26 S288176, in which the Supreme Court recognized the right to a verbatim transcript, whether by certified shorthand reporter or electronic, despite the Government Code section 69957 proscription against use of electronic recording other than in limited exceptions.  While the case was a civil dispute, the principles would seem to apply in criminal cases as well.  It’s at least worth looking at, because it may be useful on the quality of the transcript process even where criminal proceedings are electronically recorded.)

Authority:

CCP 269

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1256-1258 (Hajek and Vo were abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216)

Second 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.

Authority:

PEN 654

Third Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act.

Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Section 654 prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective.

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Latten (2021) 63 Cal.App.5th 574, 577

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

Section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Thus, unless the record clearly indicates which sentence the trial court would stay, remand is required to permit the trial court to exercise its discretion.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

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

Duty of the court, Sentencing

Case: 000334

Posted on by Gary McCurdy

Error and/or relief

At the conclusion of the hearing under section 1172.75, the trial court miscalculated the credit for time served, and the abstract of judgment must be amended to reflect the correct credits.

Holding:

The trial court is directed to amend the abstract of judgment to reflect the correct days of custody credit.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000324

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence on one of the defendant’s convictions under section 654. Therefore, we modify his sentence to stay the sentence on that count. We also order the trial court to correct errors in the defendant’s abstract of judgment.

First Holding:

Section 654 provides that a defendant may be punished only once for an act or omission that is punishable in different ways by different provisions of law. The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. However, because the statute is intended to ensure that a defendant is punished commensurate with his culpability, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. Where the defendant committed more than one offense during a course of conduct deemed to be indivisible in time, the court looks to the defendant’s intent and objective to determine whether any of the offenses are subject to section 654. Whether section 654 applies to a given case is a question of fact for the trial court. In this case, based on statements made by the court on more than one occasion, the only reasonable conclusion is that the court determined the assault with a semiautomatic firearm in count 12 involved the same act or criminal objective as the robbery against the same victim in count 10.

Authority:

PEN 654

People v. Mesa (2012) 54 Cal.4th 191, 193

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

People v. Jackson (2016) 1 Cal.5th 269, 354

Second Holding:

The abstract contains several errors. It stated that the court imposed, but stayed under section 654, several firearm and bodily injury enhancements on nine of the counts. In fact, however, the court dismissed those enhancements under section 1385. The abstract states that the sentences on three of the counts were full consecutive terms. In fact, the court imposed a consecutive term of one-third the midterm on each, as required under section 1170.1(a). And the abstract states that the total time on attached pages was four years and four months, whereas the actual total on the attached pages is fourteen years. On remand, the trial court shall ensure the amended abstract of judgment does not contain these errors.

[Gary note: The court did not cite authority for correction of the abstract of judgment, likely because it recognized there will be a new abstract of judgment issued to reflect the effect of section 654 on one of two counts. Had the Court of Appeal chosen to specifically order correction of the existing abstract, it would have found authority under one or more of the cases I have set forth below.]

Authority:

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

Duty of the court, Sentencing, Standard of review

000321

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentence on the robberies which served as the predicate offenses for his murder conviction under the felony murder theory. We remand for full resentencing so the trial court may determine whether section 654 applies to all of the underlying robberies or to only one, and to correct other errors (if any) that the parties asserted in this appeal.

First Holding:

Section 654 provides that the same act or omission shall not be punished under more than one provision of law. Thus, where felony murder is the sole theory of murder under which the case was prosecuted, section 654 precludes imposition of separate terms for the predicate felonies for the theory of felony murder, for which defendant received his first degree murder sentence.

Authority:

PEN 654
People v. Montes (2014) 58 Cal.4th 809, 898

Second Holding:

An appellate court normally reviews the trial court’s factual determinations in applying section 654 for substantial evidence.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jacobo (2019) 37 Cal.App.5th 32, 53-54

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000320

Posted on by Gary McCurdy

Error and/or relief

This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.

First Holding:

The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Second 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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

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

People v. Duff (2010) 50 Cal.4th 787, 796 [when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence]

People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]

Third Holding:

Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067

Amelioration, Duty of the court, Sentencing

Case: 000316

Posted on by Gary McCurdy

Error and/or relief

We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591

Appellate Principles, Duty of the court, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000291

Posted on by Gary McCurdy

Error and/or relief

This was a People’s appeal from the trial court’s grant of a motion under section 995 to set aside counts and enhancements in the information that the magistrate found insufficient evidence to support at the preliminary hearing. Grant of section 995 motion affirmed.

[GARY NOTE: This opinion went into depth analyzing the sufficiency of evidence on the question of gang common benefit and whether the members collectively engaged in the pattern of criminal gang activity that the statute requires. It discussed several published cases as example that guided its decision. I have not included the discussion or the cases cited, as that depth is beyond the scope of this blog. I’m happy to provide the full opinion to any attorney who asks me for it.]

First Holding:

Under section 995, an information will be set aside if the defendant was committed without reasonable or probable cause. To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. Reasonable or probable cause’ means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. Probable cause signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. The showing required at this stage is exceedingly low, and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged.

Authority:

Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 [a defendant may utilize section 995 to strike invalid enhancement allegations]

People v. Chapple (2006) 138 Cal.App.4th 540, 545

People v. Mower (2002) 28 Cal.4th 457, 473

People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276

People v. Garcia (2018) 29 Cal.App.5th 864, 870–871

Second Holding:

When we review a section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate. We must draw all reasonable inferences in favor of the information and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant’s guilt.

Authority:

People v. San Nicolas (2004) 34 Cal.4th 614, 654 [reviewing denial of sec. 995 motion made after magistrate struck special circumstance allegation]

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Third Holding:

As here with respect to the gang evidence presented by the prosecution, where the facts are undisputed, the determination of probable cause constitutes a legal conclusion which is subject to independent review on appeal.

Authority:

People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 326

People v. Scully (2021) 11 Cal.5th 542, 582 [independent standard of review applies when magistrate determines that the People did not put forth sufficient evidence to support the charges]

Fourth Holding:

Not every crime committed by gang members is related to a gang. Concerned with lax interpretations of the prior gang law that allowed for overly expansive application of gang enhancements, the Legislature amended section 186.22 effective January 1, 2022. The amendments to section 186.22 narrowed the definition of a criminal street gang and increased the prosecution’s burden of proof by altering the definition of a criminal street gang and instituting new requirements to prove that a criminal street gang engaged in a pattern of criminal gang activity.

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Cooper (2023) 14 Cal.5th 735, 744

People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6

Fifth Holding:

For the reasons stated in this opinion, we conclude that there was insufficient evidence that a reasonable person could harbor a strong suspicion that gang’s predicate offenses were either committed for the gang’s common benefit or that the gang members collectively engaged in a pattern of criminal gang activity as defined under section 186.22. Finding insufficient evidence that the gang meets the definition of a criminal street gang under section 186.22, we discern no error in the trial court’s partial grant of the section 995 motion as to the gang enhancements and gang related firearm enhancements as to all defendants.

Authority:

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Duty of the court, Sentencing

Case: 000290

Posted on by Gary McCurdy

Error and/or relief

On resentencing following remand from the prior appeal, the court failed to recaculate the credit for time served.

First Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The trial court must calculate the credits. It is not the proper function of the Court of Appeal to engage in this business of correction of clerical errors in the computation of credits.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

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

Case: 000285

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contained numerous errors and must be corrected. In addition, the judge did not specify which fines and fees he was not going to impose, and the judge failed to impose certain fees that are mandatory. Remanded for the judge to orally ponounce the fines and fees it intends to impose.

Holding:

The judgment against a defendant in a felony case must be pronounced by the court with the defendant, or an attorney for the defendant, present. Fines and fees, as part of the judgment, must be orally pronounced and cannot be simply added to the judgment later outside defendant’s presence. Where there is a discrepancy between the oral pronouncement and the abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1191

PEN 1193

People v. Zackery (2007) 147 Cal.App.4th 380, 388-389

People v. Mesa (1975) 14 Cal.3d 466, 471

Duty of the court, Juveniles

Case: 000281

Posted on by Gary McCurdy

Error and/or relief

The case must be remanded for the juvenile court to declare the four offenses misdemeanors or felonies as required by Welfare and Institutions Code section 702.

First Holding:

Crimes punishable as either a misdemeanor or a felony at the discretion of the sentencing court are known as wobblers.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704

Second Holding:

If a minor commits a wobbler, the court shall declare the offense to be a misdemeanor or felony. The juvenile court must make this declaration at a hearing so the record expressly reflects the court was “‘aware of, and exercised its discretion’” to treat the offense as either a misdemeanor or a felony.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 705

Third Holding:

Neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court. Absent a juvenile court’s express declaration, or other record evidence establishing, it was aware of and exercised its discretion, the matter must be remanded for the requisite declaration to be made.

Authority:

In re Manzy W. (1997) 14 Cal.4th 1199, 1208-1209

Fourth Holding:

Fourth Holding:
A claim of section 702 error is not forfeited by the defense’s failure to object in the juvenile court.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710-711

Fifth Holding:

We generally review sentencing decisions for abuse of discretion. A court abuses its discretion when its decision is arbitrary or capricious or exceeds the bounds of reason under the circumstances. A failure to exercise discretion also may constitute an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847-848

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

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