Category Archives: Standard of review

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

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

First Holding:

Section 654(a) provides that 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. 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. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

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

Second 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. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

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

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Saffle (1992) 4 Cal.App.4th 434, 438

People v. Vang (2010) 184 Cal.App.4th 912, 916

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b), unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

People v. Lynch (2024) 16 Cal.5th 730, 768

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

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

Second Holding:

Any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, trial courts may impose a sentence that exceeds the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170(b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Fourth Holding:

Section 1170(b)(3) provides that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Erlinger v. United States (2024) 602 U.S. 821, 837

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000527

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose the upper term based on factors that were not proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2) states that when a statute allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of the upper term. Rule 4.421(b) sets out several aggravating factors relating to a defendant: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; (2) The defendant’s prior convictions are numerous or of increasing seriousness; (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The court stated that it found beyond a reasonable doubt that the defendant showed an increasing and violent criminal history, he posed a danger to society, and he does not perform well in probation or on parole.

Authority:

PEN 1170(b)

Rules of Court, rule 4.421

Second Holding:

Subsequent to the date of sentencing, the United State Supreme Court decided Erlinger, holding that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed—including certain details relating to prior convictions—must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. Thus, in sentencing a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 824

Third Holding:

Under the reasoning of Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that 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. Wiley (2025) 17 Cal.5th 1069, 1079-1080, 1086,

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

People v. Lynch (2024) 16 Cal.5th 730, 743

Fourth Holding:

Whether a defendant’s crimes showed increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. Those factors must be assessed by a jury; such a finding involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, which is the limitation on a court’s power under the reasoning of Erlinger.

The same is true for a finding that a defendant’s performance on probation had been unsatisfactory, because even where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements. It cannot be shown that a rational juror could conclude that the prosecution has failed to prove beyond a reasonable doubt that these facts constitute factors in aggravation.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1089-1091

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000522

Posted on by Gary McCurdy

Error and/or relief

In the sentencing of the defendant on two separate cases, the court erred in believing that consecutive terms were mandatory.

First Holding:

When considering a trial court’s sentencing decision, we apply an abuse of discretion standard of review. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court cannot properly exercise its informed discretion if it is unaware of its discretionary authority at the time a decision is being made. A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

Authority:

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

People v. Hilburn (2023) 93 Cal.App.5th 189, 205

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

People v. Panozo (2021) 59 Cal.App.5th 825, 837

People v. McDaniels (2018) 22 Cal.App.5th 420, 42

Second Holding:

Forfeiture does not apply to claims that the trial court misapprehended its sentencing discretion.

Authority:

People v. Panozo (2021) 59 Cal.App.5th 825, 840

Third Holding:

The defendant was convicted by jury of a robbery he committed in 2024. When he committed this offense, he was on probation for another robbery, for which he was convicted in 2021. At the preliminary hearing for the 2024 robbery, the court revoked his probation for the 2021 robbery. At sentencing on both robberies, the court sentenced the defendant to four years for the 2024 robbery, and a consecutive term of one year for the 2021 robbery. In making its order, the court expressed its belief that consecutive sentencing was required under Penal Code section 667.

A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

When a defendant is placed on probation and imposition of sentence is suspended, as in this defendant’s case, the defendant does not begin serving a sentence until a sentence is later imposed after revocation of probation and the defendant is delivered into custody for that offense. Thus when the court sentenced the defendant for the 2024 robbery, he was not already serving a sentence on the 2021 robbery case. This is not the same situation as in Gonzalez, where the defendant was already serving a sentence because he had been sentenced for violating his probation orders and he was still awaiting trial on the new offense.

Authority:

PEN 667(c)(8)

PEN 669(a)

People v. Rosbury (1997) 15 Cal.4th 206, 210–211

People v. Gonzalez (2019) 39 Cal.App.5th 115, 121

Fourth Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion. It is apparent from the court’s comments in the record that it did not intend to impose the maximum possible sentence, as it imposed the low term and struck a prior serious felony. The case should be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]