Category Archives: Standard of review

Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case: 000107

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals his conviction of violating Penal Code section 422. We reverse the judgment because there was no substantial evidence that the victim of the crime experienced sustained fear.

First Holding:

Elements of section 422 include: that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family’s safety, and that the threatened person’s fear was reasonable under the circumstances.

Authority:

PEN 422(a)

People v. Toledo (2001) 26 Cal.4th 221, 227–228

Second Holding:

Sustained fear must occur over a period of time that extends beyond what is momentary, fleeting, or transitory. Ordinarily, sustained fear lasts beyond the moments of the encounter.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 942

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140

Third Holding:

Courts have held that 15 minutes satisfies the sustained fear requirement.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 942

People v. Wilson (2015) 234 Cal.App.4th 193, 201

People v. Allen (1995) 33 Cal.App.4th 1149, 1156

Fourth Holding:

Under circumstances not applicable here a shorter duration of fear, or fear confined to the length of the encounter, may be sufficient. A victim may experience sustained fear even though the fear exists only during the incident itself. In Brugman, the incident was a drawn-out ordeal. Similarly, if the circumstances are extreme enough—such as when a person believes they will be killed imminently—even one minute can be enough time for fear to be sustained.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 634

People v. Fierro (2010) 180 Cal.App.4th 1342, 1349

Fifth Holding:

In considering a sufficiency of the evidence claim, 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. In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Reasonableness is the ultimate standard under the substantial evidence rule.

Authority:

People v. Collins (2025) 17 Cal.5th 293, 307

People v. Kunkin (1973) 9 Cal.3d 245, 250

Abstracts and Minutes, Amelioration, Sentencing, Standard of review, Statutory interpretation

Case: 000106

Posted on by Gary McCurdy

Error and/or relief

The trial court modified the defendant’s sentence only to the extent required under sections 1172.75 and 1170.18, but otherwise left the balance intact, finding that the defendant remained a danger to the public. The case is remanded for the trial court to calculate the days of actual custody and to correct the abstract of judgment.

First Holding:

Because the sentence was modified under PC 1172.75, the trial court erred in not calculating the actual days in custody.

Authority:

PEN 2900.1

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

Second Holding:

We review the trial court’s finding that imposing a lesser sentence would endanger public safety under the clear and convincing evidence standard.

Authority:

PEN 1172.75(d)(1)

Third Holding:

The clear and convincing evidence standard requires the party with the burden of proof to convince the trier of fact that it is highly probable the facts which he asserts are true.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Fourth Holding:

The narrow definition of danger to public safety under PC 1170.18 does not apply to the undefined term of the Three Strikes Reform Act of 2012. [GARY NOTE: after the opinion in this case 000106 was filed, the Supreme Court ruled in Guevara that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable risk to public safety” within the meaning of section 1170.126 (enacted by initiative) in order to reconcile the application of section 1172.75 (enacted by the Legislature) to those who would otherwise qualify but are serving a sentence under the Three Strikes Law (an initiative provision).]

Authority:

People v. Valencia (2017) 3 Cal.5th 374, 374-375

[People v. Superior Court (Guevara) (2025) 18 Cal.5th 838]

Fifth Holding:

The abstract of judgment incorrectly reflects a determinate term of 14 years instead of 10 years, and it must be corrected. [GARY NOTE: The court did not cite authority, most likely because the error and solution are obvious. There are many relevant cases supporting this holding, some of which I have set out below.]

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

People v. Price (2004) 120 Cal.App.4th 224, 242

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

People v. Jones (2012) 54 Cal.4th 1, 89

Appellate Principles, Sentencing, Standard of review

Case: 000104

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 654

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

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

Second Holding:

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

Authority:

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

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

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

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

Third Holding:

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

Authority:

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

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

Discretion, Sentencing, Standard of review

Case: 000101

Posted on by Gary McCurdy

Error and/or relief

In 2022, defendant was resentenced under Penal Code section 1172.75 and the trial court struck seven years from his determinate term. Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety. We agree and accordingly vacate defendant’s sentence and remand for a full resentencing.

First Holding:

The court shall dismiss an enhancement if it is in the furtherance of justice to do so.” Section 1385(c)(2) provides: “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385

Second Holding:

We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion. An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

In re White (2020) 9 Cal.5th 455, 470

People v. Gonzalez (2024) 103 Cal.App.5th 215

Third Holding:

The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229

Fourth Holding:

Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s.

Authority:

People v. Williams (2018) 19 Cal.App.5th 1057, 1063

Amelioration, Sentencing, Standard of review

Case: 000098

Posted on by Gary McCurdy

Error and/or relief

The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.

First Holding:

Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.

Authority:

PEN 1172.6

Second Holding:

Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives.

Authority:

PEN 1172.6

Third Holding:

We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fourth Holding:

Since the decision to appoint counsel is not discretionary, we review that without deference as well.

Authority:

Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988