Category Archives: Statutory interpretation

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

Discretion, Juveniles, Standard of review, Statutory interpretation

Case: 000133

Posted on by Gary McCurdy

Error and/or relief

In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17. In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d). The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court. The court granted the motion, and appellant challenges that ruling on appeal. We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue.

First Holding:

In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old. The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25.

However, the court was incorrect. The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707. In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case.

Authority:

WIC 707(d)

Second Holding:

When the appellant presents an issue of statutory interpretation, we review it de novo.

Authority:

In re Noah S. (2021) 67 Cal.App.5th 410, 414

Third Holding:

Reversal is required unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness. Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25. It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 139

Fourth Holding:

In order to transfer a minor from juvenile court to criminal court, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)