I’m wondering, “Would it be worth it to give up arms to have wings and be able to fly?” He’s thinking, “Hey buddy, I could use a little help here to tie my shoes!”
Today’s developments teach us:
It isn’t always easy to prove a prior conviction was, in fact, a strike. You’ll see that in two different opinions regarding two different offenses;
Again we learn that a defendant whose now-invalid enhancement for prior prison terms is eligible for full resentencing under section 1172.75 even if the enhancement was not executed;
A court miscalculated the credit for time served;
We learn a little about what is admissible at a hearing to revoke a defendant’s Post-Release Community Supervision;
Any waiver of a jury trial on aggravating factors must be taken personally from the defendant;
There are limitations on what a judge can order as a condition of probation;
When a defendant goes back for resentencing, the judge must consider all ameliorative changes enacted since the original sentence was imposed.
Case: 000028
Substantial evidence does not support the true finding on the prior strike allegation. At trial, the prosecution introduced documentary evidence that the defendant was convicted in 2019 of violating section 246.3, subdivision (a) along with another offense, and the defendant admitted the convictions. The evidence did not prove whether he violated section 246.3, subdivision (a) by personally using a firearm, or instead if his guilt was based on his vicarious liability as an aider and abettor. The prosecution therefore failed to introduce substantial evidence that his conviction for violating section 246.3, subdivision (a) constituted a strike as defined by Penal Code section 1192.7.
First Holding: The evidence was insufficient to prove personal use, so the prior conviction was not proved as a strike. [See] People v. Watts (2005) 131 Cal.App.4th 589, 596.
Second Holding: PC 246.3 is a strike under as “any felony in which the defendant personally uses a firearm” or “any felony in which the defendant personally used a dangerous or deadly weapon” [See] 1192.7(c)(8); 1192.7(c)(23).
Third Holding: Section 246.3 can be used as a strike only if the defendant personally used the firearm. [See] People v. Golde (2008) 163 Cal.App.4th 101, 111-112.
Fourth Holding: Where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike. [See] (People v. Watts (2005) 131 Cal.App.4th 589.
Fifth Holding: On reversal for insufficiency of evidence of a prior conviction, the issue may be retried [See] People v. Barragan (2004) 32 Cal.4th 236, 239.
Case: 000029
Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing. And update credits.
Holding: Eligible for 1172.75 resentencing where prior conviction had been imposed but stayed or stricken [See] People v. Rhodius (2025) 17 Cal.5th 1050.
Case: 000030
The People concede that the trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.
First Holding: Assault by means likely to produce great bodily injury is not a serious or violent felony. [See] See People v. Leng (1999) 71 Cal.App.4th 1, 9 [“A violation of [former] section 245, subdivision (a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant ‘personally inflict[ed] great bodily injury on any person, other than an accomplice[,]” or personally used a firearm or a dangerous or deadly weapon].
Second Holding: When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense. [See] People v. Johnson (2015) 61 Cal.4th 674; People v. Lynn (2015) 242 Cal.App.4th 594.
Third Holding: Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing. [See] People v. Buycks (2018) 5 Cal.5th 857, 893.
Case: 000031
The trial court miscalculated the credit for time served. We will therefore modify his presentence credit award.. The defendant was granted one additional day of actual custody credit (712 instead of 711).
Holding: [NOTE BY GARY–THE COURT DID NOT ACTUALLY CITE AUTHORITY, MOST LIKELY BECAUSE IT WAS AN ERROR IN CALCULATION AND NOT AN ERROR ON THE LAW. I HAVE PROVIDED THE AUTHORITIES HERE THAT SUPPORT THE COURT’S RULING, THOUGH NOT MENTIONED IN THE OPINION.] In determining the credit for time served, the court must count all actual days in custody (attributable to proceedings related to the same conduct for which the defendant has been convicted), including the first and the last. [See] Penal Code section 2900.5.
Case: 000032
Because the trial court improperly admitted hearsay testimony, the order revoking the defendant’s Post-Release Community Supervision (PRCS) is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
First Holding: A preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause [See] People v. Winson (1981) 29 Cal.3d 711; People v. Arreola (1994) 7 Cal.4th 1144.
Second Holding: A trial court’s decision to admit or exclude evidence in a … revocation hearing will not be disturbed on appeal absent an abuse of discretion. [See] People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198.
Third Holding: The court reviews rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion. [See] People v. Abrams (2007) 158 Cal.App.4th 396, 400.
Fourth Holding: Before a defendant’s probation or parole may be revoked, the prosecution must prove a violation by a preponderance of the evidence. [See] People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.
Fifth Holding: Probation and parole revocations are not part of a criminal prosecution; as such, ‘the full panoply of rights due a defendant in [a criminal] proceeding does not apply.” [See] People v. Gray (2023) 15 Cal.5th 152, 163.
Sixth Holding: The Sixth Amendment’s right of confrontation does not apply to probation violation hearings”; rather, “[a] defendant’s right to cross-examine and confront witnesses at a violation hearing stems . . . from the due process clause of the Fourteenth Amendment.” This right to confrontation, however, is not absolute and the parole revocation process should be “‘flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.’” [See] People v. Abrams (2007) 158 Cal.App.4th 396, 400; People v. Winson (1981) 29 Cal.3d 711, 716, 719.
Seventh Holding: In considering the admissibility of hearsay evidence at a parole or probation revocation hearing, a “case-by-case consideration is necessary” because “[u]nder a due process analysis, the importance of a defendant’s confrontation right will vary with the circumstances.” [See] People v. Liggins (2020) 53 Cal.App.5th 55, 66-67.
Eighth Holding: The California Supreme Court has discussed the admissibility of hearsay at probation or parole violation hearings and has established two separate standards for admitting hearsay evidence depending on whether the hearsay is “testimonial” or “documentary” in nature. With respect to testimonial evidence, a preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause. The broad standard of good cause is met (1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199; People v. Winson (1981) 29 Cal.3d 711, 713-714; People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160.
Ninth Holding: First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. Statements which merely record objective facts or observations of fact are generally not testimonial in nature. Nor are official records which serve purposes other than to aid a criminal investigation. People v. Dungo (2012) 55 Cal.4th 608, 619-621; People v. Lopez (2012) 55 Cal.4th 569, 582.
Tenth Holding: In contrast to the good cause standard for testimonial hearsay, documentary hearsay evidence may be admitted at a probation or parole revocation proceeding if there are “sufficient indicia of reliability regarding the proffered material.” In coming to this conclusion, the court noted that the right of confrontation is not absolute, that revocation proceedings should be flexible enough to allow for conventional substitutes for live testimony (including affidavits, depositions, and documentary evidence), and that various federal courts had demonstrated a willingness to consider inadmissible hearsay evidence when it is accompanied by a reasonable indica of reliability. People v. Maki (1985) 39 Cal.3d 707, 709.
Eleventh Holding: Whereas the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor, the witness’s demeanor is “not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts.” (Ibid.) This is because, often, the purpose of such foundational testimony is simply to authenticate the document, and the author, signator or custodian of the document may not even be able to recall from memory the specific contents of the writing. People v. Arreola (1994) 7 Cal.4th 1144, 1157.
Twelfth Holding: In determining whether the erroneous admission of hearsay evidence prejudiced a defendant, we apply the “harmless-beyond-a-reasonable-doubt” standard as the error is of federal constitutional dimension. People v. Arreola (1994) 7 Cal.4th 1144, 1161.
Thirteenth Holding: Post-Release Community Supervision (PRCS) was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felonies. It is similar, but not identical to parole. People v. Gutierrez (2016) 245 Cal.App.4th 393, 399.
Case: 000033
The People concede the trial court erred by not obtaining defendant’s personal waiver of his right to a jury trial on allegations of aggravating circumstances and prior convictions under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.
First Holding: There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1078; Section 16 of Article I of the California Constitution; People v. Sivongxxay (2017) 3 Cal.5th 151, 166; People v. French (2008) 43 Cal.4th 36, 46-47.
Second Holding: A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. [See] Washington v. Recuenco (2006) 548 U.S. 212.
Third Holding: 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, ‘[reversal and remand are required] 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. Lack of a jury trial is not harmless under Chapman if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1087; People v. Lynch (2024) 16 Cal.5th 730, 743; Neder v. United States (1999) 527 U.S. 1, 19.
Fourth Holding: The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal. [See] People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5; Cal. Rules of Court, rule 8.204(a)(1)(B); Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947; People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.
Fifth Holding: With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone. [See] See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150.
Sixth Holding: Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case. [See] People v. Contreras (2015) 237 Cal.App.4th 868, 880; People v. Smith (1983) 33 Cal.3d 596, 599.
Seventh Holding: There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited. [See] Almendarez-Torres v. United States (1998) 523 U.S. 224; People v. Gallardo (2017) 4 Cal.5th 120, 125; Penal Code section 1025(b) & (c); People v. French (2008) 43 Cal.4th 36, 46; People v. Grimes (2016) 1 Cal.5th 698, 737–738; People v. Saunders (1993) 5 Cal.4th 580, 589.
Eighth Holding: As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence. People v. Wilson (2023) 14 Cal.5th 839, 855; Monge v. California (1998) 524 U.S. 721, 728–729.
Ninth Holding: Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667, subdivision (a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony). People v. West (1984) 154 Cal.App.3d 100, 107–108; People v. Park (2013) 56 Cal.4th 782, 798; People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068.
Case: 000034
On appeal, thew defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.
First Holding: Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them. [See] Penal Code section 1203.1 et seq.
Second Holding: A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality. [See] People v. Hall (2017) 2 Cal.5th 494, 498; People v. Lent (1975) 15 Cal.3d 481, 486.
Third Holding: The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition. [See] People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.
Fourth Holding: A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. [See] People v. Welch (1993) 5 Cal.4th 228, 233-234.
Fifth Holding: Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights. [See] People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127; In re I.V. (2017) 11 Cal.App.5th 249, 260; In re Sheena K. (2007) 40 Cal.4th 875, 890.
Sixth Holding: A probation condition must be “sufficiently definite” for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated. [See] People v. Hall (2017) 2 Cal.5th 494, 500.
Seventh Holding: A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad. [See] People v. Patton (2019) 41 Cal.App.5th 934, 946 ; In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be “narrowly drawn”].
Eighth Holding: We review de novo constitutional challenges to probation conditions. People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.
Case: 000035
After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.
First Holding: The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements. [See] People v. Monroe (2022) 85 Cal.App.5th 393, 402; People v. Buycks (2018) 5 Cal.5th 857, 893 [“the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall”].
Second Holding: Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206-1207; In re Estrada (1965) 63 Cal.2d 740; People v. Burgos (2024) 16 Cal.5th 1, 28.
Third Holding: If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided. [See] People v. Tran (2022) 13 Cal.5th 1169, 1207; People v. Sek (2022) 74 Cal.App.5th 657, 669; United States v. Tateo (1964) 377 U.S. 463, 465.
Fourth Holding: If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41; Penal Code section 2900.1.