Category Archives: Statutory interpretation

Elements of crime, Statutory interpretation

Case 000530

Posted on by Gary McCurdy

Error and/or relief

A person may be ineligible for a concealed weapon permit if the person has been subject to any restraining order, protective order, or other type of court order issued pursuant to specified statutory provisions. There are exceptions, however, and the defendant fell within those exceptions. The emergency protective order expired, and he had not been given notice and was not given an opportunity to be heard before the emergency protective order was issued.

[Gary note: This is not exactly a criminal case. It was an appeal from a denial of application for a concealed weapons permit. I decided to include it, as it highlights the elements of time since the disqualifying event AND the requirement that the permitted person be notified of the expiry or termination of the permit. You may someday have a client facing a concealed weapons charge because of an expired or vacated permit, and it may be useful to be familiar with section 26202, so here it is.]

Holding:

Penal Code section 26202 provides that an applicant for a permit to carry a concealed weapon shall be deemed ineligible under various specified circumstances, including where the person has been subject to any restraining order, protective order, or other type of court order issued pursuant to specified statutory provisions.

However, that ineligibility does not apply if that order expired or was vacated or otherwise canceled more than five years prior to the licensing authority receiving the completed application, or that order expired or was vacated or otherwise canceled and the applicant did not receive notice and an opportunity to be heard before the order was issued. The applicant defendant in this case falls under the latter exception–lack of notice and opportunity to challenge the order before the expired order was issued.

Authority:

PEN 26202

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

Case 000516

Posted on by Gary McCurdy

Error and/or relief

For section 136.1 (dissuasion of witness) to apply [prior to its amendment effective 1/1/26], the attempt at dissuading must be performed prior to the commencement of the parole revocation proceedings. There was insufficient evidence to prove that parole revocation proceedings had commenced after the alleged attempt to dissuage.

(GARY NOTE: Effective 1/1/2026, section 136.1 was amended to eliminate the ambiguity under which Reynoza concluded that section 136.1 applies only if the alleging document has not yet been filed. The original language (by the use of the word “and”) ambiguously implied that, to constitute a violation, the defendant had to attempt to dissuade not only the filing of the charges, but also assistance in the prosecution once filed.

(Under that interpretation, if the only attempt at dissuasion took place after charges were filed, then the evidence was not sufficient to show that there was an attempt to dissuade from the filing of the charges. In direct response to Reynoza, section 136.1 now has changed the “and” to an “or,” the effect of which makes section 136.1 applicable to attempted dissuasion occurring on or after 1/1/2026, whether the attempt at dissuasion took place before or after charges were filed. I have included this summary because there may still be some defendants whose alleged misconduct occurred prior to 1/1/26 and must be prosecuted under the law in effect at the time of the crime.)

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Powell (2018) 5 Cal.5th 921, 944

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Second Holding:

Under Reynoza, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2). In Reynoza, all evidence of the defendant’s dissuasive conduct occurred after the underlying charging document had been filed. Therefore, since there was no substantial evidence that the dissuasive conduct occurred before charges were filed, the court affirmed the Court of Appeal’s reversal of the conviction.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 1013

Third Holding:

There is no substantial evidence that satisfies the required element that defendant’s dissuading conduct occurred before proceedings were initiated in order to support defendant’s section 136.1(b)(2) convictions. Absent substantial evidence to support the convictions, the judgment must be reversed. A reversal based on insufficient evidence shields defendant from retrial because it means that no rational factfinder could have voted to convict the defendant. As such, defendant cannot be retried on counts 2 and 3

Authority:

People v. Tripp (2007) 151 Cal.App.4th 951, 959

Tibbs v. Florida (1982) 457 U.S. 31, 41

[Gary Reminder:

[Reread what I wrote as a Gary note  in the Error and/or relief secrion above about the law having changed effective 1/1/26 for those whose crimes occurred on or after that date.  It demonstrates how critical it is for you to always check on exactly WHAT the language was for the crime on the date your client was alleged to have committed it.]
Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case: 000495

Posted on by Gary McCurdy

Error and/or relief

On recalling the sentence under section 1172.75, the court should have stricken the balance due on the restitution fine ordered more than 10 years previously.

First Holding:

Effective January 1, 2025, Assembly Bill No. 1186 amended section 1465.9 to add subdivision (d), which provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” Here, the trial court imposed a restitution fine of $10,000 when it sentenced defendant in 2001. Because more than 10 years have elapsed since the date of imposition, we order the restitution fine vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 does not contemplate vacating parole revocation fines under section 1202.45. Section 1465.9(d) does not mention section 1202.45. When a statute is silent on a point, the courts resort to statutory interpretation. The proper interpretation of a statute is a question of law we review de novo. When interpreting a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. To determine the Legislature’s intent, we must look to the statute’s words and give them their usual and ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.

There is no support in the plain language of the statute for the premise that the Legislature intended section 1465.9 to provide relief from parole revocation fines. If the Legislature intended such a result, it could have so specified. It did not. As such, we conclude that a section 1202.45 parole revocation fine cannot be vacated under section 1465.9.

Authority:

Waterman Convalescent Hospital Inc. v. State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1439

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Snook (1997) 16 Cal.4th 1210, 1215

People v. Gonzalez (2008) 43 Cal.4th 1118, 1126

People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes]

Discretion, Jury trial, Sixth Amendment, Statutory interpretation

Case: 000407

Posted on by Gary McCurdy

Error and/or relief

Although the defendant initially decided not to testify at his trial, he changed his mind just before oral argument, after the court granted the prosecution’s motion to dismiss one of the counts and denied the defense motion for acquittal. As the People concede, it was error for the court to deny his request.

First Holding:

It cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 49

Second Holding:

After a litigant rests their case, the trial court has wide discretion to reopen a criminal matter to receive additional evidence. When this court reviews a trial court’s decision to preclude the defense from reopening the case to present additional evidence, we must consider four factors: (1) The stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. The trial court’s denial of the defendant’s request to testify is subject to the harmless beyond a reasonable doubt standard enunciated in Chapman.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 66

People v. Masters (2016) 62 Cal.4th 1019, 1069

Chapman v. California (1967) 386 U.S. 18, 24

People v. Allen (2008) 44 Cal.4th 843, 871–872

Third Holding:

With respect to the first factor, the state of the proceeding, when the defendant has recently rested his case, closing argument has not begun, and the jury has not been instructed, granting defendant’s request does not entail any great inconvenience. Only 25 minutes passed between when the defense rested and when the defendant expressed that he wished to testify.

Authority:

People v. Carter (1957) 48 Cal.2d 737, 757

Fourth Holding:

As to the defendant’s diligence, the trial court asserted it could not reopen the case because the defense had moved for acquittal, and the prosecution had dismissed count 2. This rationale is not supported by the law. Section 1118.1 provides, in relevant part, that if a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right. Here, the court took the defendant’s waiver and allowed the defense to rest before hearing its motion for acquittal. Thus, when the defendant decided to testify, the defense had to make a motion to reopen, which the court denied. Under section 1118.1, the court should have ruled on both the motion for acquittal and the prosecutor’s motion to dismiss before inquiring about the defendant’s decision to testify. Had this procedure been followed, the defendant would have had the opportunity to offer evidence after the denial of the motion for judgment of acquittal.

Authority:

PEN 1118.1

Fifth Holding:

The third factor is whether reopening the case will cause the jury to give undue emphasis to the new evidence. A jury may accord undue weight to evidence which is admitted close to the time deliberations begin. Here, at the time the defendant changed his mind, the jury had not been told whether he intended to testify. Further, although the court had advised the jury that the presentation of evidence was complete, that advisement occurred only shortly before the defendant changed his mind. For these reasons, we have no reason to believe that the jury would have afforded undue weight to his testimony if the court had reopened the defense case and this factor also shows an abuse of discretion.

Authority:

People v. Funes (1994) 23 Cal.App.4th 1506, 1521

Sixth Holding:

The final factor, the significance of the evidence, also shows error by the trial court. The most important witness for the defense in many criminal cases is the defendant himself. This was not a lopsided case with overwhelming and incontrovertible evidence of guilt, as demonstrated by the jury’s acquittal on count 1. Courts must evaluate whether the interests served by restricting a defendant’s right to testify justify the limitation imposed on this most basic right of a defendant in a criminal case—to present his own version of events in his own words. Here, the trial was relatively short and involved a single defendant, and the jury instructions and closing arguments had not yet occurred at the time Mendoza made his request. The defendant’s testimony may have been highly significant and could have altered the outcome of the case. Under this four-factor test, the court’s decision constituted an abuse of its discretion.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 51-52, 56

Seventh Holding:

Finally, as the parties agree, the error was not harmless beyond a reasonable doubt. The jury deliberated for over three hours and acquitted the defendant of count 1, suggesting it entertained doubts about at least certain aspects of the prosecution’s case. It cannot be said that the jury necessarily would have reached the same result if the court had permitted the defendant to testify.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

Appellate Principles, Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case: 000287

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the balance of the $200 restitution fine pursuant to section 1465.9(d).

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Second Holding:

We review questions of statutory interpretation de novo. If the language of the statute contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. The 10-year period starts with the original imposition of the fine and does not restart on resentencing. We modify the judgment to vacate the balance of the restitution fine.

Authority:

PEN 1260

People v. Rogers (2025) 108 Cal.App.5th 340, 354

People v. The North River Ins. Co. (2025) 18 Cal.5th 1, 13

People v. Salstrom (2025) 117 Cal.App.5th 596, 601 review granted 3/11/2026 (S295038)

Appellate Principles, Elements of crime, Statutory interpretation

Case: 000275

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to dismiss the two counts of driving a vehicle while under the influence, as he was also changed with operating a motor scooter while under the influence of alcohol. The latter is a more specific statute than the former, and the defendant must therefore be prosecuted under the more specific statute.

First Holding:

A criminal defendant may not be prosecuted under a general statute if the conduct at issue is covered under a more specific statute.

Authority:

In re Williamson (1954) 43 Cal.2d 651

Second Holding:

A motorized scooter is a vehicle under the definition of vehicle under Vehicle Code section 670: A vehicle is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

Authority:

VEH 670

Third Holding:

Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) each element of the general statute corresponds to an element on the face of the special statute or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 86

People v. Henry (2018) 28 Cal.App.5th 786, 791-792

Fourth Holding:

It is not correct to assume that the Williamson rule is inapplicable whenever the general statute contains an element not found within the four corners of the special law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the special statute will commonly result in a violation of the general statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 8

Discretion, Racial Justice Act, Standard of review, Statutory interpretation

Case: 000271

Posted on by Gary McCurdy

Error and/or relief

The petition for writ of habeas corpus, construed as a petition for mandate, is granted. The defendant filed a petition under the Racial Justice Act (RJA) to challenge his conviction of 25 years earlier. He petition contained statistical data showing that the prosecution charged far more Black defendants for specified offenses than White defendants in that same three-year period. He sought counsel in his petition. The trial court denied it in its entirety.

The trial court erred in ruling that the defendant had to make a prima facie showing of entitlement to relief to secure appointment of counsel. Rather, to obtain counsel, the Racial Justice Act requires habeas petitioners to plead a plausible allegation of a violation of the Act. Second, the trial court’s denial of the defendant’s request for counsel was erroneous because regardless of whether he satisfied the minimal pleading standard governing that request, the court was unaware of its discretion to grant him leave to amend the petition to plead a plausible allegation of a Racial Justice Act violation. Lastly, the trial court erred in invoking the prohibition on successive habeas petitions because the defendant was not required to address procedural bars to relief at this initial stage of the proceedings.

First Holding:

When the issue on review is purely legal, such as the proper interpretation and application of a statute or constitutional provision, our review is de novo. Our fundamental task in interpreting a statute is to ascertain the Legislature’s intent so as to effectuate its purpose. We begin with the text of the statute and give the words their usual meaning while construing them in light of the statutory framework as a whole. If the statutory language is unambiguous, then its plain meaning controls. If the language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy. Discretionary decisions by the trial court are generally subject to appellate review under the abuse of discretion standard to determine if they were within the bounds of some applicable legal criteria.

Authority:

In re Lugo (2008) 164 Cal.App.4th 1522, 1535

People v. Carter (2023) 97 Cal.App.5th 960, 967

People v. Hodge (2024) 107 Cal.App.5th 985, 998

Second Holding:

In 2020, the Legislature enacted the Racial Justice Act. The purpose of the Act is to purge racial discrimination from our criminal justice system, and to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing’. In passing the Act, the Legislature recognized that racial bias persists in our criminal justice system because courts generally only address racial bias in its most extreme and blatant forms. The Act acknowledges that all persons possess implicit biases that impact the criminal justice system, and these biases tend to disfavor people of color. The RJA added section 745, which sets forth legal standards governing a claim for relief under the Act. The Act also amended section 1473, which identifies bases for prosecuting a petition for writ of habeas corpus, to add a subdivision governing the litigation of RJA claims.

Authority:

PEN 745

PEN 1473

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 39, 43

People v. Lawson (2025) 108 Cal.App.5th 990, 993

Third Holding:

In the legislation amending section 1473(e) effective January 1, 2026, the Legislature emphasized the extremely low showing a petitioner must make to obtain counsel:  “The Act’s threshold to secure counsel is extremely low, and yet courts have denied counsel to litigants raising Racial Justice Act claims far more than they have appointed counsel The Legislature reaffirms that the threshold showing for appointment of counsel does not require a prima facie showing, as correctly held by McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, and should be construed as a minimal pleading requirement.”

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33

Fourth Holding:

If the Legislature amends or reenacts the statute without changing the interpretation placed on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts’ construction of that statute.

Authority:

People v. Brown (2016) 247 Cal.App.4th 1430, 1436

Fifth Holding:

The statute now requires the appointment of counsel for an indigent habeas petitioner if the petition pleads a plausible allegation of a violation of RJA, and obligates the court to determine if the petitioner has made a prima facie showing, instead of a prima facie showing of entitlement to relief.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 39, 44

Sixth Holding:

The trial court’s denial of the defendant’s request for appointment of counsel was erroneous because the court was unaware of its discretion to permit him to amend his petition to satisfy the minimal pleading burden governing his request for counsel. If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. Simply stated, an abuse of discretion arises if the trial court based its decision on impermissible factors or on an incorrect legal standard.

Authority:

People v. K.D. (2025) 110 Cal.App.5th 1, 19

Amelioration, Duty of the court, Sentencing, Statutory interpretation

Case: 000266

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the defendant’s petition for recall of sentence under section 1172.75, the trial court struck some of the enhancements, but resentenced him to a life term on the balance under the Three Strikes Law as before. Under subsequently decided case law, the trial court should have considered imposing a sentence under the Three Strikes Reform Act of 2012. The matter must be remanded for resentencing. In addition, the abstract of judgment must be corrected to including the correct custody credits.

First Holding:

Section 1172.75 provides that once the trial court has confirmed that a defendant’s current judgment includes a prior prison term enhancement that is now legally invalid, the court shall recall the sentence and resentence the defendant. In so doing, the trial court is directed to follow specific instructions while resentencing. For example, it provides that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to section 1172.75 shall not result in a longer sentence than the one originally imposed. In addition, when resentencing, the court shall apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Third Holding:

In 2012, the electorate passed the Three Strikes Reform Act of 2012 (Prop. 36), which amended the law to reduce the punishment prescribed for certain third strike defendants. The electorate additionally authorized persons presently serving an indeterminate term of life imprisonment imposed under the prior version of the Three Strikes law to seek resentencing under the amended penalty scheme by filing a petition for recall of sentence. If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors, section 1170.126 provides that he or she shall be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. The Act, therefore, enacted two kinds of reforms: prospective, by exempting some newly-charged defendants from an indeterminate term, and retrospective, by permitting resentencing for some already convicted

Authority:

PEN 1170.126

People v. Frierson (2017) 4 Cal.5th 225, 231

Fourth Holding:

In Guevara, the California Supreme Court addressed the question of whether a full resentencing under section 1172.75 also permitted the trial court to consider resentencing in accordance with the Reform Act. It held that, as a matter of constitutional avoidance, section 1172.75 must be construed as incorporating the public safety determination under section 1172.126 as a condition for nonserious, nonviolent felony offenders to obtain the benefit of the Reform Act during resentencing.

The court noted that the voters’ intention in passing the Reform Act, particularly by including the requirement of whether resentencing poses an unreasonable risk of danger to public safety, was to strike a balance between reform and safety, and such an intention would be honored by interpreting section 1172.75 as incorporating section 1170.126’s public safety override. Therefore, if a defendant demonstrates eligibility under the Reform Act at a section 1172.75 resentencing, the trial court must first determine whether resentencing the defendant under the revised provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If no such risk is demonstrated, the court shall resentence the defendant pursuant to the revised penalty provisions of the Reform Act.

[GARY NOTE: Proposition 47 in 2014 included a definition of “unreasonable risk of danger to public safety” that was much more specific and more restrictive on what qualified as such than the undefined same language contained in the Proposition 36, the Three Strikes Reform Act of 2012. Because Proposition 36 was an initiative, it cannot be amended by the Legislature except as state in Proposition 36. Section 1172.75’s enactment does not qualify to amend Proposition 36. Therefore, the more restrictive definition in PC 1170.18, enacted by Proposition 47, is not the measure for determining whether relief would pose an unreasonable risk of danger to public safety. Instead, the standard arising from Proposition 36 applies. Although not in conjunction with section 1172.75, the Supreme Court has previously determined that the more restrictive definition enacted in Proposition 47 did not change the broader standard enacted by Proposition 36 two years earlier. See People v. Valencia (2017) 3 Cal.5th 347]

Authority:

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

People v. Valencia (2017) 3 Cal.5th 347

Fifth Holding:

At the conclusion of the resentencing proceedings, the trial court indicated that it did not need credits; as a result, the number of credits on the abstract of judgment was left blank with a note indicating that “CDCR to recalculate credits.” When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody up to that time, including time in custody after the original sentencing, as well as the conduct credits ordered at the original sentencing.

Authority:

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

People v. Dean (2024) 99 Cal.App.5th 391, 397

Elements of crime, Statutory interpretation

Case: 000265

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of attempted dissuasion of a witness. We reverse the attempted dissuasion of a witness conviction, and remand for resentencing. In this case, the indictment was filed in 2012, and the dissuading charge pertained to conduct that occured in 2016.

[GARY NOTE: THE STATUTE WAS AMENDED EFFECTIVE 1/1/2026, AND POST-COMPLAINT-FILING DISSUASION BY ITSELF IS NOW PUNISHABLE. I have chosen to post this victory anyway, because there are likely still cases in which the conduct occurred prior to 1/1/2026, and ex post facto prohibitions would preclude application of the amended law.]

First Holding:

Section 136.1(b)(2) makes it a crime to attempt to dissuade a victim or witness from causing a complaint to be sought and prosecuted, and assisting in the prosecution thereof.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986

[Gary note: remember that the statute has since been amended to outlaw the conduct that was not previously covered under section 136.1(b)(2).]

Second Holding:

The issue before the Supreme Court in Reynoza was whether section 136.1(b)(2) [Gary note: referring to the version in effect prior to the 1/1/26 amendment] required proof of an attempt to dissuade a witness from causing a charging document to be sought and prosecuted or whether the statute also independently applies where a defendant dissuades a witness only from assisting in the prosecution of a case after the charging document has already been filed.

Put another way, can the statute support a disjunctive interpretation—in which the statute independently applies where a defendant dissuades a witness from assisting in the prosecution of a case after the charging document has already been filed—or whether a conjunctive interpretation precludes a conviction under such circumstances.

The court concluded that because section 136.1(b)(2) is equally susceptible to both the conjunctive and disjunctive constructions, the rule of lenity points to an interpretation more favorable to the defendant. As a result, the statute must be read in the conjunctive construction, which does not permit a conviction to be based solely on proof of dissuasion from assisting in the prosecution of an already-filed charging document.

Consequently, because the defendant’s conduct in Reynoza amounted to, at most, dissuasion after a complaint was filed, the conviction had to be reversed. Therefore, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2).

[Gary note: Did I adequately mention that the ambiguity has been cleared up by the Legislature, effective 1/1/26, and now it is clear that section 136.1(b)(2) applies even if the only attempted dissuasion occurred after the charging document has been filed? Thus, Reynoza’s conclusion applies to only those cases in which the attempt at dissuasion occurred prior to 1/1/26.]

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986, 987, 989, 1013

Third Holding:

[Gary note: to demonstrate the significance of choice of words, I have set forth the original language that was interpreted in Reynoza and the amended version. The only difference is the change from “and” to “or.” I have added *** on both sides of the affected word to highlight it better. Goes to show sometimes it’s just all in the wrist.]

Authority:

PEN 136.1(b)(2) PRIOR TO AMENDMENT 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** and *** assisting in the prosecution thereof.”

PEN 136.1(b)(2) AS AMENDED EFFECTIVE 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** or *** assisting in the prosecution thereof.”

Elements of crime, Sentencing, Standard of review, Statutory interpretation

Case: 000253

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the defendant’s perjury conviction. We reverse the perjury conviction. His excess presentence custody credits must be applied to reduce his parole period. The record does not permit a determination of the precise number of excess custody credits. Because we are remanding for resentencing, we direct the trial court to calculate and determine the appropriate application of those credits.

First Holding:

A conviction under section 118(a) requires proof that the challenged statement was made under penalty of perjury, and that the sex offender registration form signed by the defendant did not contain such a declaration. Because the statutory element was not established, reversal is required.

Authority:

PEN 118(a)

Second Holding:

When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting that review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Reversal for insufficient evidence is warranted only where it appears that, under no hypothesis whatsoever, is there sufficient evidence to support the verdict.

Authority:

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Section 118(a) provides that a person commits perjury when he or she certifies under penalty of perjury and willfully states as true any material matter that he or she knows to be false. Proof that the false statement was made under penalty of perjury is therefore an essential element of the offense. Here, the Criminal Justice Information System (CJIS) Form 8102S signed by the defendant states: “I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense.” The form does not state that the certification is made under penalty of perjury. Because the prosecution failed to establish this essential statutory element, the evidence is insufficient to support the defendant’s conviction for perjury under section 118(a). Accordingly, the conviction on that count must be reversed, and the matter remanded for resentencing.

Authority:

People v. Tafoya (2025) 109 Cal.App.5th 868, 902

Fourth Holding:

Section 2900.5 requires that all days a defendant spends in custody—including time in jail or a rehabilitation facility—be credited against the defendant’s term of imprisonment, which expressly includes any period of parole prior to discharge. By the time the defendant was sentenced, he had already served enough days in custody to qualify for release on parole.

Authority:

PEN 2900.5

In re Ballard (1981) 115 Cal.App.3d 647, 650

Fifth Holding:

The parties and trial court disagreed on how to calculate the time expected to complete a 16-month term against which the known number of days in custody would apply, but approaches proposed are flawed. Section 7(b)(13) defines a “month” as a “calendar month.” A calendar month is not a fixed number of days, but rather the space of time from any day of any such month to the corresponding day of the next, and may therefore vary in length. Consequently, a sentence expressed in months cannot be converted into a predetermined number of days by multiplying months by 30, nor by fractionalizing a year into parts. Instead, the proper calculation depends on the defendant’s actual dates of incarceration and release. Because the record does not disclose the precise date of the defendant’s incarceration, we cannot determine the exact number of days constituting his 16-month term. Accordingly, this issue must be remanded for the trial court to calculate his sentence based on his actual custodial dates and to apply any excess custody credits to reduce his parole period as required by section 2900.5

Authority:

PEN 7(b)(13)

In re Kemper (1980) 112 Cal.App.3d 434, 439, fn. 2

People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 414, fn. 23 [a three-month statutory period may range from 89 to 92 days depending on the specific dates involved]

Amelioration, Elements of crime, Sentencing, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000175

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in considering grand jury testimony at the evidentiary hearing on the defendant’s motion to recall his sentence under Penal Code section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure to permit individuals convicted of murder under prior law to seek vacatur of their convictions and resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 (2021-2022 Reg. Sess.) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A trial court’s denial of a section 1172.6 petition following an evidentiary hearing is ordinarily reviewed for substantial evidence. Under this standard, an appellate court reviews the 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. The meaning of a statute is a question of law that we review de novo.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Walker (2024) 16 Cal.5th 1024, 1032

Fourth Holding:

A panel of this court concluded that testimony from a grand jury proceeding is admissible in an evidentiary hearing under section 1172.6(d)(3) as evidence previously admitted at any prior hearing or trial.

Authority:

People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted February 26, 2025, S288606

Fifth Holding:

Pending our state high court’s decision, we conclude that testimony adduced at a grand jury proceeding is not admissible in a section 1172.6 evidentiary hearing. The context in which section 1172.6 uses the word “hearing,” precludes a broad reading of the term. With limited exception, the Legislature’s statutory scheme for grand jury proceedings does not label a grand jury proceeding a “hearing.” Instead, the Legislature provided that grand juries convene in “sessions” (Pen. Code, secs. 934, 935, 938, 939, 939.1) or “proceedings” (Pen. Code, secs. 891, 939.21; see Pen. Code, pt. 2, tit. 4, chs. 1-3, sec. 888 et seq. [entitled “Grand Jury Proceedings”]).

Authority:

Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1249 [looking to context to construe term “hearing”]

Sixth Holding:

Grand jury proceedings are different in kind from the hearings and trials that are undisputedly covered by section 1172.6(d)(3), such as preliminary hearings or criminal trials. A grand jury proceeding serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury. The grand jury’s charge is to investigate and inquire. (Pen. Code, secs. 888, 917, 918, 939.6.) The proceeding is investigatory, not adversarial. Unlike a preliminary hearing or trial, a grand jury session is not the same proceeding as a subsequent criminal prosecution.

Authority:

People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [preliminary hearing testimony]

People v. Cody (2023) 92 Cal.App.5th 87, 101-104 [testimony at jury trial]

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026

People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182

People v. Petrilli (2014) 226 Cal.App.4th 814, 825

Probation Parole PRCS, Statutory interpretation

Case: 000153

Posted on by Gary McCurdy

Error and/or relief

After petitioner admitted to parole violations, the superior court revoked petitioner’s parole and remanded him to the custody of the Department of Corrections and Rehabilitation (CDCR) pursuant to section 3000.08(h). He should not have been remanded to state prison under section 3000.08(h), but instead confined to county jail for no more than 180 days pursuant to section 3000.08(f) and (g)

First Holding:

For all inmates released from prison on parole on or after July 1, 2020, notwithstanding any other law, any inmate sentenced to a life term shall be released on parole for a period of three years. Therefore, it is section 3000.01 and not section 3000.1 that applies to convicted murderers who, like petitioner, are paroled after July 1, 2020. Because section 3000.1 does not apply to petitioner, he is not subject to section 3000.08(h), remanding him to the custody of CDCR. The trial court is directed to vacate its order remanding petitioner to the custody of the CDCR and hold further proceedings to determine what penalties to impose for petitioner’s parole violation, as provided by section 3000.08(f) and (g

Authority:

PEN 3000.01(b)(2) [subject to two exceptions not relevant here, under subdivision (d)]

Second Holding:

By using the phrase “notwithstanding any other law,” the Legislature signaled its intent for the later-enacted statute–section 3000.01–to preempt the conflicting, preexisting statute in section 3000.1

Authority:

APeople v. Reed (2024) 103 Cal.App.5th 43, 53