The photo doesn’t do justice for this mighty oak, but I found myself staring at it for quite some time, admiring how it just all fits together.
My goodness gracious! There were some extensive opinions filed on this batch’s date. I’m talkin’ 20 to nearly 40 pages! I’m used to the 10 to 20 pagers, but when the cases get into appeals from current murders and the like (as opposed to past murders up for resentencing under section 1172.6’s recall of sentence provisions), there is a lot of substance. I’m taking my advice this time and breaking it into at three separate posts. The middle post discusses several aspects of two murder cases, so I’ve kept them together.
Summary
Because serious bodily injury is sufficiently akin to great bodily injury in this context, it was error to impose a great bodily injury enhancement under PC 12022.7 for the crime of battery with serious bodily injury under PC 243.
It was proper for a court to not conduct full resentencing under 1172.75 because of its finding that it would risk public safety (as defined under the Three Strikes Reform Act of 2012, since the defendant was serving a Three Strikes sentence). There were several errors in the abstract of judgment that need correction.
We learn that it isn’t criminal threats if the victim does not harbor sustained fear.
As it happens, a person cannot be found in violation of probation for misconduct that occurred after the probation term ended, even though probation had been summarily revoked when he did not show for sentencing in 1998.
Case: 000106
The section 12022.7, subdivision (a) enhancement, which was stayed at sentencing, must instead be stricken under subdivision (g) of the statute because infliction of great bodily injury is an element of battery with serious bodily injury; and the trial court improperly limited his presentence conduct credits to 15 percent of actual days served.
First Holding: A sentence cannot be enhanced by section 12022.7 for infliction of bodily injury if that is an element of the underlying offense. [See] PC 12022.7(g).
Second Holding: Great bodily injury is an element of battery with serious bodily injury. [See] People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375–1376 ; People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550; People v. Johnson (2016) 244 Cal.App.4th 384, 391; People v. Arnett (2006) 139 Cal.App.4th 1609, 1616; People v. Hawkins (2003) 108 Cal.App.4th 527, 531; People v. Beltran (2000) 82 Cal.App.4th 693, 696–697.
Third Holding: Serious bodily injury is the “essential equivalent” of great bodily injury [See] People v. Burroughs (1984) 35 Cal.3d 824, 831; People v. Sloan (2007) 42 Cal.4th 110, 117 [noting that a true finding on a great bodily injury enhancement would effectively establish the elements of the charged battery with serious bodily injury].
Fourth Holding: PC 246 is not a violent felony per se so PC 2833.1 does not limit behavior credit to 15%. [See] In re Cabrera (2023) 14 Cal.5th 476, 491.
Case: 000107
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. [See] PC 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. [See] PC 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. [See] 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, [See] People v. Valencia (2017) 3 Cal.5th 374, 374-375.
Fifth Holding: [GARY NOTE: after the opinion in this case 000107 was filed, the Supreme Court ruled that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable risk to public safety” 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). See People v. Superior Court (Guevara) (2025) 18 Cal.5th 838.]
Sixth 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, such as 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.]
Case: 000108
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 PC 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. [See] PC 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. [See] 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 [See] 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. [See] 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. [See] People v. Collins (2025) 17 Cal.5th 293, 307 ; People v. Kunkin (1973) 9 Cal.3d 245, 250.
Case: 000109
The court revoked the defendant’s probation and sentenced him to six years in prison. Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse.
First Holding: When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period. In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation. [See] PC 1203.2(a); People v. Leiva (2013) 56 Cal.4th 498, 502.
Second Holding: Revocation of probation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it. [See] People v. Zaring (1992) 8 Cal.App.4th 362, 378.
Third Holding: A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition. [See] People v. Leiva (2013) 56 Cal.4th 498, 379; People v. Galvan (2007) 155 Cal.App.4th 978, 982.
Fourth Holding: The facts supporting revocation of probation may be proven by a preponderance of the evidence. However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation. [See] People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation].