Category Archives: Sentencing

Appellate Principles, Sentencing

Case: 000350

Posted on by Gary McCurdy

Error and/or relief

Section 654 applied and it was error to impose sentence on more than one of the three counts of human trafficking, pimping, and pandering.

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.

Authority:

PEN 654(a)

Second Holding:

Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. The proscription against double punishment is applicable where there is a course of conduct that violates more than one statute and comprises an indivisible transaction punishable under more than one statute. The divisibility of a course of conduct depends upon the intent and objective of the actor. If all the offenses are incident to one objective, then the defendant may be punished for any one of them but not for more than one. Accordingly, the trial court should have stayed the sentences on two of the counts pursuant to section 654.

Authority:

People v. Miller (1977) 18 Cal.3d 873, 885

Third Holding:

Here, the defendant was convicted in three counts of human trafficking, pimping, and pandering, each related to one victim and each during the same period. Given the specific factual scenario presented here, including that all three offenses were charged for the same period and that none relied on one specific act, the pimping offense was incidental to the pandering offense, and the intent to pander was an essential element of the human trafficking charge.

Authority:

People v. Deloach (1989) 207 Cal.App.3d 323, 337 [as a general rule, any acts of prostitution that follow directly or proximately from the pandering are incident to a single objective and therefore constitute an indivisible transaction with it; that is, the subsequent sex offenses are incidental to the commission of the pandering, and are facilitated by it]

People v. Dearborne (2019) 34 Cal.App.5th 250, 263 [As charged under the facts of this case, the human trafficking and pandering were part of the same criminal intent and objective, and thus the court was required to stay the sentence on the pandering count. The human trafficking charge literally has an element of an intent to pander.]

Fourth Holding:

The defendant asks us to remand the matter for resentencing based on this error, but we agree with the People that resentencing is not necessary. Rather, we exercise our authority to modify the judgment to reflect that the punishments on [named counts] are stayed pursuant to section 654.

Authority:

PEN 1260 [appellate court may reverse, affirm, or modify judgment]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473, [court may exercise its authority to modify a judgment based on an unauthorized sentence under section 1260 in the context of section 654]

Duty of the court, Juveniles, Sentencing

Case: 000349

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in setting restitution without allowing the minor an opportunity to challenge the amount. We reverse the juvenile court’s restitution award and remand the matter for a contested restitution hearing.

First Holding:

The minor had posed as another person and agreed to buy a counterfeit watch. On meeting the seller, he robbed the seller. At the disposition hearing, the seller said he’d paid a specified amount for the counterfeit watch. The minor asked the court to reserve the question of the amount so the minor could research and present evidence on what the market rate was for counterfeit watches. The court denied the motion and set restitution at the sum the seller testified to.

A victim of conduct for which a minor is found to be a person described in Welfare and Institutions Code section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor. For stolen property, the value shall be the replacement cost of like property, or the actual cost of repairing the property, whichever is less. A minor has the right to a hearing before a judge to dispute the determination of the amount of restitution. This statutory directive is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims’ claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy due process, and ensure fundamental fairness in the determination of the restitution ultimately ordered.

Authority:

WIC 730.6

In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391

Second Holding:

The juvenile court’s refusal of the minor’s request for a restitution hearing wherein he could present evidence contesting the victim’s statement to authorities and the probation department recommended restitution order was contrary to section 730.6(b)(2)’s directive and thus an abuse of discretion.

Authority:

In re S.E. (2020) 46 Cal.App.5th 795, 804

In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000348

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]

First Holding:

It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Erlinger v. United States (2024) 602 U.S. 821, 840

Second Holding:

A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

People v. Holmes (1960) 54 Cal.2d 442, 443–444

Chapman v. California (1967) 386 U.S. 18

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]

Third Holding:

Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fourth Holding:

We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fifth Holding:

A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.

Authority:

People v. DePriest (2007) 42 Cal.4th 1, 50

People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6

Sixth Holding:

The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.

Authority:

People v. Brown (2016) 245 Cal.App.4th 140, 153

Seventh Holding:

Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).

Authority:

People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]

Amelioration, Elements of crime, Fifth Amendment, Sentencing, Standard of review

Case: 000347

Posted on by Gary McCurdy

Error and/or relief

We reverse and vacate the true findings on the gang murder special circumstances for counts 1 and 4. We also reverse and vacate the true findings on the gang enhancements for counts 1, 2, and 4. We remand the matter to the trial court to allow the District Attorney to retry the gang murder special circumstance and the gang enhancement for count 4 under the current version of the laws as amended by AB No. 333. Principles of double jeopardy preclude retrial as to the gang murder special circumstance for count 1 and the gang enhancement for counts 1 and 2.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22. The amendment narrowed the definition of a criminal street gang as used for the gang enhancement in section 186.22(b) and the gang murder special circumstance in section 190.2(a)(22). It changed the definition to an ongoing, organized association or group of three or more persons whose members collectively engage in, or have engaged in, a pattern of criminal gang activity, rather than individually or collectively engage in a pattern of criminal gang activity under the former version of section 186.22. A pattern of criminal activity under former section 186.22(e) required two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion.

The amendment changed the requirements of a pattern of criminal activity in four ways. First, a pattern of criminal activity now requires the predicate offenses to be separate from the currently charged offense or offenses. Second, the last predicate offense must have occurred within three years of the commission of the currently charged offense. Third, it requires that the predicate offenses were committed by two or more gang members, as opposed to persons. Fourth, the predicate offenses must have commonly benefited a criminal street gang. AB 333 narrowed the common benefit for the gang by the commission of an offense to be more than reputational. The prosecution must show how the predicate offenses provided an actual common benefit to the gang, and that they did not merely enhance the reputation of its individual members.

Authority:

PEN 186.22(g)

People v. Cooper (2023) 14 Cal.5th 735, 738

People v. Hin (2025) 17 Cal.5th 401, 460-461

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Lamb (2024) 16 Cal.5th 400, 450

Second Holding:

AB 333 applies retroactively to nonfinal judgments as we have here. The instructions read to the defendant’s jury preceded the effective date of AB 333 and his appeal was pending on that effective date. The new requirements in section 186.22 apply retroactively to his case on appeal.

Authority:

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

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

People v. Cooper (2023) 14 Cal.5th 735, 738-739

Third Holding:

We must reverse the gang enhancements and the gang murder special circumstance if any rational fact finder could have come to the opposite conclusion regarding the new requirements of AB 333.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 462

People v. Cooper (2023) 14 Cal.5th 735, 739

People v. Lamb (2024) 16 Cal.5th 400, 453

Fourth Holding:

The double jeopardy clause of the federal constitution’s Fifth Amendment provides that no person may be subject for the same offense to be twice put in jeopardy of life or limb. The state constitution provides the same protection. A defendant may not be tried a second time for the same offense if the conviction is set aside for insufficiency of the evidence. Our conclusion that the gang special circumstance and the gang allegation were unsupported by sufficient evidence bars retrial.

Authority:

Cal. Const., art. I, sec. 15

People v. Hin (2025) 17 Cal.5th 401, 454-455, 468

Discretion, Eighth Amendment, Equal protection, Fines and fees, Sentencing, Standard of review

Case: 000346

Posted on by Gary McCurdy

Error and/or relief

The court imposed a minimum $300 restitution fine and an assessment of $70 in ancillary costs. The trial court held a hearing and determined that the defendant had the ability to pay. We affirm the order on ancillary costs but remand to give the defendant the opportunity to further challenge the restitution fine under Kopp.

First Holding:

A person convicted of a crime can, and in some cases must, be ordered to pay a variety of punitive fines along with other nonpunitive ancillary costs. Some statutes require the imposition of fines and ancillary costs regardless of a defendant’s ability to pay. Other statutes require a finding of the ability to pay or allow for its consideration. Restitution fines under section 1202.4 are considered punitive fines, whereas assessments to fund court facilities and operations are considered ancillary costs. The distinction between punitive fines and other imposed payments is important because it impacts whether a given form of required payment is initially challenged under, and then reviewed under, the constitutional excessive fines clauses, or under the constitutional provision for equal protection.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 14-15, 18 [we analyze fines and ancillary costs separately because different justifications support each, and different constitutional protections apply]

Second Holding:

If requested by a defendant, the court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 30 [in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment]

Third Holding:

In reaching its conclusion that the defendant did not meet his burden to show his inability to pay the ancillary costs, the court considered his potential to earn wages while in prison and his general ability to work, which was within its discretion to do. The trial court did not state that it was relying solely on the defendant’s ability to earn wages while in prison. The court found simply that he is capable of working. The trial court’s conclusion that he had the ability to pay $70 in court assessments was not arbitrary or irrational.

Authority:

People v. Fish (2024) 102 Cal.App.5th 730, 739 [collecting cases]

People v. Santos (2019) 38 Cal.App.5th 923, 934 [factors to consider in determining ability to pay may include, among others, the defendant’s realistic ability to earn prison wages or obtain employment]

People v. Castellano (2019) 33 Cal.App.5th 485, 490, disapproved in part as stated in Kopp, at p. 23, fn. 17. 490 [trial court may consider potential prison pay during the period of incarceration” in determining inability to pay]

People v. Cervantes (2020) 46 Cal.App.5th 213, 229 [ability to pay includes the ability both to obtain prison wages and to earn money after release from custody]

People v. Carmony (2004) 33 Cal.4th 367, 377 [a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Punitive fines are subject to a different approach. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 23

San Antonio Indep. Sch. Dist. v. Rodriguez (1973) 411 U.S. 1, 22

Fifth Holding:

A court has discretion to impose a nonexcessive fine as punishment, even on indigent defendants. Thus, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The touchstone of the constitutional inquiry for excessive fines is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. While ability to pay may be part of the proportionality analysis, it is not the only factor.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 21, 23

United States v. Bajakajian (1998) 524 U.S. 321, 334

Sixth Holding:

Under section 1202.4(b), the restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4

Seventh Holding:

A court’s ruling on ability to pay is reviewed for abuse of discretion. The defendant bears the burden of demonstrating his or her inability to pay the imposed amounts.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 21, 24

People v. Wilson (2023) 14 Cal.5th 839, 868

People v. Lowery (2020) 43 Cal.App.5th 1046, 1057, 1053

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000345

Posted on by Gary McCurdy

Error and/or relief

Pursuant to a plea bargain, the two defendants pleaded no contest to voluntary manslaughter. Both petitioned the court for resentencing pursuant to section 1172.6. The court denied each man’s petition. We reverse and remand for the trial court to hold another evidentiary hearing pursuant to section 1172.6(d)(3) to determine whether the defendant’s would be guilty of murder beyond a reasonable doubt under current law.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory made invalid by the current law to petition the sentencing court to vacate the conviction and seek resentencing. Petitioners can seek such relief whether their convictions are the result of a trial or acceptance of a plea offer in lieu of a trial.

Authority:

PEN 1172.6

People v. Arellano (2024) 16 Cal.5th 457, 472

Second Holding:

We review the court’s finding for substantial evidence, making all inferences in favor of the judgment.

Authority:

People v. Schell (2022) 84 Cal.App.5th 437, 442

Third Holding:

Three times the court stated the defendants could be convicted of the crime to which they pleaded–voluntary manslaughter. In one instance, the court noted it was significant the crime they had pleaded to was manslaughter. However, that is not the question the court must answer. The evidentiary hearing under section 1172.6(d)(3), requires the court to determine whether the petitioner could be convicted of murder or attempted murder under current law – not manslaughter.

Authority:

PEN 1172.6

Fourth Holding:

On this record, we cannot confidently find the trial court meant to find the two men could be found guilty of murder and not manslaughter under current law. We therefore remand for the court to hold an evidentiary hearing and answer the required question under section 1172.6(d)(3) with regard to their manslaughter convictions.

Authority:

PEN 1172.6

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier version of section 186.22, AB 333 applies 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Amelioration, Sentencing

Case: 000342

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court dismissed the now-invalid prior prison term enhancements, but decline to apply the Three Strikes Reform Act of 2012 to reduce the sentence further. The trial court concluded that section 1172.75 unconstitutionally amended section 170.126 (the petition-for-recall process for resentencing under the Three Strikes Reform Act). Because the Supreme Court has since determined that there is no constitutional conflict, the matter is reversed and remanded for the trial court for further proceedings consistent with this opinion.

Holding:

The Three Strikes Reform Act limited indeterminate life sentences for nonserious, nonviolent third strike offenses. Pursuant to the Reform Act, codified at section 1170.126, a defendant can petition for a recall of sentence and request resentencing. In 2021, section 1172.75 was enacted by the Legislature, directing courts resentencing defendants to use currently applicable sentencing rules and to apply any other changes in law that reduce sentences or provide for judicial discretion with a goal of eliminating disparity of sentences and to promote uniformity of sentencing. Because section 1172.75 incorporates the consideration of the danger to public safety inherent in section 1170.126, the two statutes operate harmoniously, and section 1172.75 is therefore constitutional and a valid, applicable statute under which a defendant may request resentencing.

Authority:

PEN 1170.126

PEN 1172.75(d)(2)

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Jury trial, Sentencing, Sixth Amendment

Case: 000340

Posted on by Gary McCurdy

Error and/or relief

The defendant was committed to the Department of State Hospitals nearly 50 years ago after being found not guilty by reason of insanity of robbery and assault. He challenges the order recommitting him for two years. The record fails to establish that he knowingly and voluntarily waived his rights to a jury trial and we therefore reverse.

First Holding:

Where a criminal defendant has been found to have been insane at the time the offense was committed, unless it appears to the trial court that the sanity of the defendant has been recovered fully, the court may order the defendant committed to the Department of State Hospitals (DSH) or any other appropriate facility for care and treatment. The commitment order must specify the maximum term of commitment, which is defined as the longest term of imprisonment which could have been imposed for the offense of which the person was convicted.

Authority:

PEN 1026(a)

People v. K.P. (2018) 30 Cal.App.5th 331, 338

Second Holding:

A person committed to DSH who completes the maximum term of commitment must be released unless, prior to the expiration of that term, the prosecution files a petition seeking to extend the commitment by two years and demonstrates that the person, by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others. Upon the filing of such a petition, the person is entitled to a jury trial, unless that right is waived by both the person and the prosecuting attorney.

To proceed with a bench trial instead of a jury trial in a recommitment proceeding, the trial court must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision. Here, neither party contends that the defendant lacked the capacity to knowingly and voluntarily waive his right to a jury, so the only question before us is whether he personally waived it.

Authority:

PEN 1026.5(b)

People v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 661–662

People v. Tran (2015) 61 Cal.4th 1160, 1163

Third Holding:

We uphold a jury-trial waiver only if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

The denial of a defendant’s right to a jury trial in a recommitment proceeding, including through the acceptance of an invalid jury trial waiver is not susceptible to ordinary harmless error analysis and automatically requires reversal.

We cannot be certain on this record that the court and the defendant were ever, in the court’s words, on the same page regarding his desire to waive his right to a jury trial. And because we cannot be confident that the defendant actually waived the right, we do not ascribe much significance to his final indication that he did not have any questions about waiving the right. Under the totality of the circumstances, the record does not affirmatively demonstrate that the defendant knowingly and voluntarily waived his right to a jury.

As a result, the order extending his commitment to DSH cannot stand.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 991

People v. Tran (2015) 61 Cal.4th 1160, 1169

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence’; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case: 000338

Posted on by Gary McCurdy

Error and/or relief

When it initially granted the defendant probation, the court waived various fines and assessments based on indigence. On revocation of probation, the court imposed a restitution fine and other assessments. Remanded for the court to consider the defendant’s challenges to the fees and assessments in light of a recent Supreme Court decision.

First Holding:

Under the Supreme Court’s holding in Kopp a defendant may challenge the imposition of any fine as constitutionally excessive. Because Kopp was decided after entry of the juidgment on appeal here, the defendant should have the opportunity to make such a challenge. Though the court could determine that the issue was forfeited for lack of objection, forfeiture may be excused where to require defense counsel to raise an objection would place an unreasonable burden on defendants to anticipate unforeseen changes in the law.

Authority:

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

People v. Perez (2020) 9 Cal.5th 1, 8

People v. Brown (2024) 101 Cal.App.5th 113, 127 [Courts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law.]

Second Holding:

A restitution fine under section 1202.4(b)(1) is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. ) Section 1202.4, subdivision (b)(1), states that the minimum restitution fine is $300 for each felony conviction and that the maximum fine is $10,000. Section 1202.4, subdivision (c), allows the court not to impose the restitution fine for compelling and extraordinary reasons, but states the defendant’s inability to pay is not a compelling and extraordinary reason not to impose the minimum fine. Thus, the defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4
People v. Kopp (2025) 19 Cal.5th 1, 13, 30

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

People v. Preston (2015) 239 Cal.App.4th 415, 423

People v. Miracle (2018) 6 Cal.5th 318, 356

People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033 [Under section 1202.4(c), the trial court may not consider a defendant’s ability to pay when imposing the minimum restitution fine of $300, but the court may consider the defendant’s ability to pay if the court imposes a restitution fine above the minimum.]

Third Holding:

Although fines may properly be imposed as punishment for crime, the “excessive fines analysis” under the United States and California Constitutions, which considers ability to pay, is the proper vehicle to challenge punitive fines. But there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23 and fn. 17

Fourth Holding:

Section 1465.8(a)(1) requires, to assist in funding court operations, an assessment of $40 to be imposed on every conviction for a criminal offense. Government Code section 70373(a)(1) requires, to ensure and maintain adequate funding for court facilities, that $30 assessment be imposed on every conviction for a criminal offense. Both costs are mandatory. But equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Authority:

PEN 1465.8

GOV 70373(a)(1)

People v. Kopp (2025) 19 Cal.5th 1, 9, 15

People v. Robinson (2012) 209 Cal.App.4th 401, 405

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