Gary has this to say

There’s a moon out tonight!

A summary, even thought it’s a bit wintry out there today.

For those on a low-word diet, I present the following summary of summaries:

Abstracts of judgments need to be correct.

Don’t forget to look into statutes of limitations–there still are some.

When a nonappealable order might actually be appealable, depending on the court’s treatment of it.

A defendant may find it advantageous to insist on being prosecuted under a statute that is more specific than the general statute. (The case doesn’t discuss it, but it’s always wise to use caution when asking for what you are entitled to. It might not always be the best course. Not applicable in this case, just sayin’.)

It’s not our first Rhodius.

There’s a case with a gazillion issues, including changes in gang activity statutes and the Racial Justice Act.

With rare exception of a bare fact of a prior conviction, factors that increase a punishment for the crime must be proved to a jury beyond a reasonable doubt, in the absence of a stipulation.

Case:  000075

For the reasons set forth below, we affirm with instructions to modify the abstract of judgment.  The trial court clerk shall prepare an amended abstract of judgment to reflect appellant’s conviction of second degree murder and forward a copy to the Department of Corrections and Rehabilitation.  In all other aspects, the judgment is affirmed. 

Holding:  The abstract of judgment incorrectly states that the conviction was for murder in the first degree, whereas it was actually for murder in the section degree.  The People agree that an error in the classification of appellant’s conviction exists and that we have the authority to correct this error.  [See] People v. Taylor (2004) 119 Cal.App.4th 628, 647.

Case:  000076 

The charge for violating a protective order was barred by the statute of limitations.    We therefore vacate defendant’s conviction for violating a criminal protective order but otherwise affirm the judgment. 

Holding:  The misdemeanor violating a criminal protective order (§ 166, subd. (c)(1)) must be vacated because it is barred by the applicable one-year statute of limitations [See] PC 802; People v. Williams (1999) 21 Cal.4th 335, 338, 341.

Case:  000077

The defendant won only that the 1172.1 denial was appealable under these circumstances. The appellate court affirmed the denial of the request for resentencing. The defendant appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.1.   For the reasons discussed in the opinion, the appellate court found that the trial court’s order was appealable in this instance.  However, it concluded that the trial court did not abuse its discretion in declining to recall and resentence the defendant and affirm the order denying the defendants petition.

First Holding:  The steps taken by the court in this instance, mirroring those it would take had the petition been submitted by an entity with the right to submit a petition for recall (appointment of counsel, holding of a contested hearing, and the merits-based comments denying the request) affected the defendant’s substantial rights, and in this instance, the order is appealable. [See] People v. Carmony (2004) 33 Cal.4th 367, 375  [noting that even if a defendant does not have the right to petition for relief, he does have the right to “invite the court to exercise its power” to do so and may raise a trial court’s failure to do so on appeal]. 

Second Holding:  The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. [See] People v. Loper (2015) 60 Cal.4th 1155, 1159.

Third Holding:  Ordinarily, the defendant has no right to appeal from either inaction by the court on or its denial of a defendant’s invitation to recall the sentence under section 1172.1 [See] People v. Hodge (2024) 107 Cal.App.5th 985; People v. Faustinos (2025) 109 Cal.App.5th 687; People v. Raoy (2025) 110 Cal.App.5th 991; People v. Brinson (2025) 112 Cal.App.5th 1040.

Fourth Holding:  While a defendant may invite the court to recall the sentence under PC 1170.1, the defendant has no right to petition for recall under section 1170.1, and  the court is not required to respond to such an invitation or to consider the request at all . [See] PC 1172.1; People v. Hodge (2024) 107 Cal.App.5th 985.

Fifth Holding:  An appellate court has an independent obligation to assure itself of its own jurisdiction.  [See] Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 291.

Case:  000078

The defendant was improperly prosecuted under Penal Code section 594, rather than Penal Code section 4600, for damaging two safety cells while on special watch.  Section 594 generally prohibits malicious damage to property not one’s own in cases other than those specified by state law. In contrast, section 4600 specifically addresses the destruction or injury of jail or prison property by an inmate.  Accordingly, we reverse the conviction and remand the matter to the trial court for further proceedings consistent with this opinion, including any retrial the People may elect to pursue. 

First Holding:  The defendant’s conviction for felony vandalism under section 594 was improper, as a more specific statute was available. [See] PC 594; PC 4600.

Second Holding:  When a general statute includes conduct covered by a more specific statute, prosecution must proceed under the specific statute.  This principle, known as the Williamson rule, prevents the government from circumventing legislative intent by charging a defendant under a broader statute carrying a harsher penalty. [See] In re Williamson (1954) 43 Cal.2d 651, 654; People v. Murphy (2011) 52 Cal.4th 81, 86.

Third Holding:  The Legislature’s intent was to exclude from section 594’s scope conduct addressed by other, more specific statutes, such as section 4600’s prohibition against damaging jail property.  Reading the two provisions together gives effect to both and avoids rendering section 4600 superfluous, consistent with well-settled rules of statutory construction. [See] Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390 [“ ‘[s]tatutes must be interpreted, if possible, to give each word some operative effect[,]’ ” meaning that we should not “ ‘construe statutory provisions so as to render them superfluous’ ”]; Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [“We do not presume that the Legislature performs idle acts, nor do construe statutory provisions so as to render them superfluous”]; River’s Side at Washington Square Homeowners Assn. v. Superior Court (2023) 88 Cal.App.5th 1209, 1228.

Case:  000079

The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.  

Holding:  Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.  The abstract of judgment must be corrected to reflet the credit for time served orally pronounced. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185-186.

Case:  000080

People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius).  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  [NOT A DIRECT QUOTE–COPIED FROM ANOTHER OPIN ON THIS TOPIC] 

Holding:  A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken [See] People v. Rhodius (2025) 17 Cal.5th 1050.

Case:  000081

We agree with the parties that the gang offense must be reversed and the gang-related allegations must be vacated, and that the sentences on several witness dissuasion counts may be readdressed upon remand.  We further agree with the defendant that the prosecution should not have been permitted to play and introduce two rap music videos under Evidence Code section 352, although we conclude that the error was harmless given our reversal of the gang offense and the vacation of the gang-related allegations.  In addition, we find that the defendant has established a prima facie case that the prosecution violated the California Racial Justice Act by playing and using the rap music videos at trial, and we remand this matter to the trial court to conduct a hearing to determine if a violation of the California Racial Justice Act has been proven by a preponderance of the evidence.

First Holding:  Assembly Bill 333 made the following changes:  First, it narrowed the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or group of three or more persons. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206.

Second Holding:  Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, Assembly Bill 333 requires that any such pattern have been collectively engaged in by members of the gang. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206.

Third Holding:  Assembly Bill 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206.

 Fourth Holding:  Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. [See] People v. Tran (2022) 13 Cal.5th 1169, 1206.

Fifth Holding:  [GARY NOTE: There were numerous other issues in the case and it’s best for you to simply read the case if you have a further interest, in which case contact me to get it to you.]

Sixth Holding:  [GARY NOTE:  There was extensive discussion of the Racial Justice Act and its implications to other problems in this case.  Again, best to read the opinion, as a summary would be inadequate. Thus, the next Principle has been severely truncated from what could have been expressed in a tome.] 

Seventh Holding:  A violation of the Racial Justice Act (RJA) occurs when an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, among other circumstances.  A central premise of the RJA is that bias can be unconscious and implied as well as conscious and express. [See] PC 745; Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824 

Case:  000082

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170, subdivision (b).   We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First Holding:  With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. [See] People v. Lynch (2024) 16 Cal.5th 730, 747 ; Cunningham v. California (2007) 549 U.S. 270, 281.

Second Holding:  A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. [See] People v. Lynch (2024) 16 Cal.5th 730, 768.

Third Holding:  The United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses.  A judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. [See] Erlinger v. United States (2024) 602 U.S. 821, 837-838.

Fourth Holding:  The aggravating circumstances were not proven in accordance with section 1170, subdivision (b)(2) and the prior conviction exception would not apply to them. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [“We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt”].

Fifth Holding:  A trial court’s reliance on aggravating circumstances not found in accordance with section 1170, subdivision (b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.  If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. [See] Chapman v. California (1967) 386 U.S. 18; People v. Lynch (2024) 16 Cal.5th 730, 768.

Sixth Holding:  When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion.  If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman.  The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt [See] People v. Wiley (2025) 17 Cal.5th 1069, 1090.); People v. Avalos (2022) 85 Cal.App.5th 926, 953.

Sunsets, eh?

Well, it’s been a nice holiday season. I’m figuring out a little more how to do this posting stuff. Still several things I need to figure out, and will probably have to get some professional help (on at least WordPress blogging, whether or not I need some other sort)to accomplish a few of the things I haven’t yet figured out. But I figure I’ll have time to go at my own pace.

I did remember to prepare a preview of come-on attractions, for those of you in a hurry, or who read the last chapter of the whodunnits first.

Highlights of Today’s Action

A nice lesson in the elements of aiding and abetting an attempted murder;

Credits for time served need to be updated on resentencing;

An abstract of judgment that got it wrong misled the trial court and resulted in a full sentencing do-over;

Another abstract of judgment failed to show that sentence on one count was stayed under Penal Code section 654;

Another do-over for a trial court to determine whether recent amendments to gang offense statutes rendered a prior serious felony a non-serious felony that no longer supports a five-year enhancement;

Yet another abstract got it wrong on fines that were not imposed;

A Miranda violation suppression motion was improperly denied;

Where mitigating factors are present, the trial must give them great weight in deciding whether to dismiss enhancements as provided in section 1385;

Upper terms cannot be imposed on factors that require proof beyond a reasonable doubt by a jury in the absence of a jury trial or a stipulation or an express waiver;

If the trial court denies a bare bones petition for resentencing under section 1172.6 where the preliminary hearing transcript suggests the petitioner is ineligible, the petitioner should be given an opportunity to file an amended petition.

Lights, Action, Camera!

Case: 000064

We conclude that the failure to appoint counsel and hold a prima facie hearing on the first and second degree murder convictions was harmless, but the same cannot be said with respect to his attempted murder conviction. We thus reverse the denial of the petition as to that count and remand for further proceedings, in line with People v. Patton (2025) 17 Cal.5th 549. Custody credits must be updated.

First Holding: Senate Bill No. 1437 (2017-2018 Reg. Sess.); Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437’s ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter. [See] People v. Antonelli (2025) 17 Cal.5th 719.

Second Holding: The instructions that guided the verdicts did not include all the elements of direct aiding and abetting liability for attempted murder. First, the instructions did not require the jury to find that the defendant had the specific intent to kill. the failure to identify a specific target crime while instructing with CALJIC No. 3.02 broadened the reach of the natural and probable consequences doctrine to include liability for aiding and abetting other unspecified criminal behavior. Indeed, the Prettyman court explained that omitting the element of the instruction identifying the target crime is error because it impermissibly allows the jury to convict the defendant of murder based on its belief that “the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct” of which murder was a natural and probable consequence. [See] People v. McCoy (2001) 25 Cal.4th 1111, at p. 1118 [a defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]; People v. Prettyman (1996) 14 Cal.4th 248, 268; Estelle v. McGuire (1991) 502 U.S. 62, 72 [reversible error in failing to identify a target offense if there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution”].

Third Holding: When a sentence is modified while defendant is serving the sentence, the trial court must update defendant’s actual custody credits up to that point. People v. Buckhalter (2001) 26 Cal.4th 20.

Case: 000065

When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.

Holding: Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29; Penal Code section 2900.1.

Case: 000066

We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.

First Holding: An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Jones (2012) 54 Cal.4th 1, 89.

Second Holding: In 2019, the Legislature amended subdivision (b) of section 667.5 (amended § 667.5(b)) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. [See] Penal Code section 667.5, subd. (b).

Third Holding: If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant. [See] Penal Code sec. 1172.75, subd. (c).)

Case: 000067

The abstract of judgment requires correction to show that the enhancement was stricken and the determinate sentences were stayed under Penal Code section 654.

First Holding: Where there is a discrepancy between the oral pronouncement of sentence and the minute order or abstract of judgment, the oral pronouncement controls. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185.

Second Holding: A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. Here, however, we have rejected all but one of her claims of error. As a result, there are not multiple errors to accumulate. [See] People v. Hill (1998) 17 Cal.4th 800, 844; People v. Weaver (2012) 53 Cal.4th 1056, 1077.

Case: 000068

The defendant’s claims the matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333), which narrowed liability for gang-related crimes. We accept the Attorney General’s concession that remand is required for this reason.

First Holding: Effective January 1, 2022, Assembly Bill No. 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. [See] People v. Fletcher (2025) 18 Cal.5th 576, 583; People v. Tran (2022) 13 Cal.5th 1169, 1206.

Second Holding: Assembly Bill No. 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes “a felony violation of Section 186.22” is determined by applying the current version of section 186.22. [See] People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607.

Third Holding: In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. Standard 8.1 amended and renumbered effective January 1, 2007; adopted as sec. 6 effective July 1, 1970. [See] California Standards of Judicial Administration, section 8.1(1).

Case: 000069

The defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1172.6 on the ground he had failed to make a prima facie case for relief. Based on recent California Supreme Court authority, the defendant must be given an opportunity to file an amended petition with additional facts. We remand the matter to allow him to do so. Additionally, at the original sentencing hearing, the trial court stayed or struck the sentence on several of the counts to which he pled guilty, but failed to impose a sentence that could be stayed or struck. We therefore remand the matter to the court for the additional purpose of imposing sentence.

First Holding: In a proceeding under Penal Code section 1172.6 for recall of sentence based on recent changes in homicide law, the preliminary hearing transcript may be considered in determining whether a prima facie showing has been made. [See] People v. Patton (2025) 17 Cal.5th 549.

Second Holding: We review de novo a trial court’s ruling whether a defendant has made a prima facie showing with respect to a section 1172.6 petition. [See] People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Patton (2025) 17 Cal.5th 549.

Third Holding: A trial court may rely on “unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations,” regardless of whether the defendant “stipulated to the transcript as the factual basis of a plea.” [See] People v. Patton (2025) 17 Cal.5th 549, at pp. 564, 569, fn. 12.

Fourth Holding: Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. Where the trial court fails to pronounce sentence on all counts, the appellate court may remand the matter to correct the unauthorized sentence on the defendant’s appeal, even if the People did not appeal. [See] People v. Alford (2010) 180 Cal.App.4th 1463, 1468–1469; People v. Irvin (1991) 230 Cal.App.3d 180, 192.

Case: 000070

The abstract of judgment must be corrected to reflect that the court orally waived all fines and fees at resentencing.

First Holding: Because the trial court expressly stated its intent to waive all discretionary fines and fees, which includes restitution fines, we conclude the court did not impose restitution fines under section 1202.4 or parole revocation fines under section 1202.45. The abstract of judgment must be corrected to reflect the judgment orally imposed. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may order correction of abstracts of judgment that do not reflect the oral judgments of sentencing courts]; People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral pronouncement of judgment and . . . the abstract of judgment, the oral pronouncement controls”].

Second Holding: The restitution fine, although including a minimum fine, is discretionary in that it permits the trial court to decline to impose it for compelling and extraordinary reasons. [See] Penal Code section 1202.4, subd. (b); People v. Tillman (2000) 22 Cal.4th 300, 303.

Case: 000071

The defendant asserts the trial court should have granted his motion to suppress his interrogation statements because he invoked his right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because his statements were involuntary and coerced. We agree and further conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial. The Chapman error standard applies.

First Holding: A custodial interrogation can come in various forms and does not require questions. The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. [See] Miranda v. Arizona (1966) 384 U.S. 436; Rhode Island v. Innis (1980) 446 U.S. 291, 301.

Second Holding: Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect. [See] Pennsylvania v. Muniz (1990) 496 U.S. 582, 601; United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975.

Third Holding: When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation. [See] United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147.

Fourth Holding: Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them. [See] Edwards v. Arizona (1981) 451 U.S. 477, 484–485; People v. Johnson (2022) 12 Cal.5th 544, 580; Michigan v. Harvey (1990) 494 U.S. 344, 350; People v. Henderson (2020) 9 Cal.5th 1013, 1022; People v. Avalos (2022) 85 Cal.App.5th 926, 932.

Fifth Holding: The error requires reversal unless it is harmless beyond a reasonable doubt. [See] People v. Elizalde (2015) 61 Cal.4th 523; Chapman v. California (1967) 386 U.S. 18.

Sixth Holding: We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review. [See] People v. Johnson (2022) 12 Cal.5th 544, 578; People v. Henderson (2020) 9 Cal.5th 1013, 1023; People v. Suarez (2020) 10 Cal.5th 116, 158.

Case: 000072

The defendant argues the trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of her prior victimization. We agree. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding: The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. One of the listed mitigating circumstances is “the current offense is connected to prior victimization or childhood trauma.” [See] Penal Code section 1385.

Second Holding: Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. [See] People v. Walker (2024) 16 Cal.5th 1024, 1038.

Third Holding: We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard. [See] People v. Mendoza (2023) 88 Cal.App.5th 287, 298; People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.

Fourth Holding: When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing 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. See People v. Salazar (2023) 15 Cal.5th 416, 425.

Case: 000073

The trial court improperly imposed upper term sentences on Counts 1 and 3, and the matter must therefore be remanded for resentencing. We agree that the defendant’s trial rights notwithstanding, the court’s reliance on his prior criminal history, to impose aggravated terms was prejudicial error.

First Holding: Section 1170, subdivision (b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. [See] People v. Lynch (2024) 16 Cal.5th 730, 742.

Second Holding: Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. Thus, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. [See] People v. Lynch (2024) 16 Cal.5th 730, 742, 748.

Third Holding: Except for properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception to prior convictions permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions, within the meaning of the federal sentencing statute at issue. Instead, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. In doing so, the court reaffirmed the basic rationale of Apprendi v. New Jersey (2000) 530 U.S. 466 and rejected the arguments made by the dissent and amicus curiae that, historically, when exercising their sentencing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to the penalty. [See] Erlinger v. United States (2024) 602 U.S. 821, 843; Mathis v. United States (2016) 579 U.S. 500, 511–512; Apprendi v. New Jersey (2000) 530 U.S. 466.

Fourth Holding: Since Erlinger, the California Supreme Court has gone further to make it clear that Erlinger requires that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1083–1084 [absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor].

Case: 000074

As in Patton, we grant appellant’s request to remand the matter for the opportunity to file a supplemental petition under Penal Code section 1172.6.

First Holding: When the court makes the prima facie determination, it may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition. [See] People v. Patton (2025) 17 Cal.5th 549.

Second Holding: Petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail. It follows from what we have said already that should a trial court encounter a material fact dispute, the court may not resolve that dispute at the prima facie stage and should instead grant petitioner an evidentiary hearing, assuming relief is not otherwise foreclosed. [See] People v. Patton (2025) 17 Cal.5th 549, 566-567.

Third Holding: While it may be that a record can refute the allegations made in the petition, it would be somewhat imprecise to say that evidence in a preliminary hearing transcript, offered at the prima facie stage, irrefutably establishes any particular fact to any particular standard of proof. A conclusion that a record refutes an allegation at the prima facie stage is not, moreover, a conclusion about the strength of evidence in the record. [See] People v. Patton (2025) 17 Cal.5th 549, 567, fn. 10.

This is a lovely day for a walk. I do believe Jay walking is no longer a crime, no? Okay, that’s not exactly what the law is. I was looking at Assembly Bill No. 2147 (2021-2022 legislative session), and it may not so much as make jaywalking lawful as it prohibits a peace officer, as defined, from stopping a pedestrian for specified traffic infractions unless a reasonably careful person would realize there is an immediate danger of collision with a moving vehicle or other device moving exclusively by human power. To be honest (and why not?), I didn’t study it scrupulously to be able to defend or oppose an argument over whether jaywalking is, or is not, now legal. But I like this character. Not that I can tell any birds apart, but I think this particular one feels at home around my place, and makes me smile.

Recognizing that someone might be interested in knowing what’s going on but has too little time to read all of the case summaries, I’ve decided maybe it would be helpful for me to provide a little preview of the coming attractions (aka, the summaries in the post). So here’s an encapsulation of the digests of the abstracts of the abridged summaries of the …, okay, never mind, you get my drift. Here are some of the high points in the summaries this post.

What we have in this post:

Restitution fines are no longer collectible after 10 years;

Section 1172.75 requires a full resentencing even if the now-invalid enhancement for the defendant’s prior prison term(s) was stayed;

The focus on a person seeking to set aside a conviction because of a prejudicial lack of awareness of its impact on immigration status is on that person’s own error and it is not necessary to show ineffective assistance of counsel;

It is critical to examine whether misconduct can give rise to two separate strikes;

There can be no “parole revocation fine” imposed where the sentence is life without the possibility of parole;

When a defendant is entitled to resentencing under section 1172.75, the court must conduct a full resentencing that includes an examination for the application of recent ameliorative changes in the law;

Occasionally the appellate court agrees that evidence is insufficient to support a charge;

The appellate court can correct an improper sentence (at least when jurisdiction has vested, something I mention in a Gary Note in the summary);

It might seem obvious, but a court cannot impose an enhancement that is not charged, nor can it merely stay an enhancement (the choices being to impose or strike the punishment for the enhancement [not to be confused with the procedure of imposing but staying punishment on a count to which Penal Code section 654 applies]).

All righty then, enough menu, here’s the full course.

Case:  000051

Defendant claims the restitution fine must be vacated because more than 10 years have elapsed since the court imposed the fine.  The People agree, and so do we.  

First Holding:  Restitution fines are no longer collectible 10 years after their imposition. [See] Penal Code section 1465.9, subdivision (d) [“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.”]

Second Holding:  Section 1465.9 is retroactive to those whose judgments are not final.  [See] In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments].

Case:  000052   

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, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the court to hold that hearing.

Holding:  Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75 [See] People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius).  

Case:  000053   

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7.  His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.

First Holding:  A person who is no longer in criminal custody may file a motion to vacate a  conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.  The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief. [See] Penal Code section 1473.7.

Second Holding:  The moving party must also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction.  [See] People v. Espinoza (2023) 14 Cal.5th 311, 319; People v. Padron (2025) 109 Cal.App.5th 950, 958.

Third Holding:  The focus of this showing is the defendant’s own error.  To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel. [See] Penal Code section 1473.7, subd. (a)(1); People v. Padron (2025) 109 Cal.App.5th 950, 958-959.

Fourth Holding:  Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. [See] People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268.

Fifth Holding:  The petitioner must demonstrate that the error was prejudicial. [See] People v. Vivar (2021) 11 Cal.5th 510, 528; Pen. Code sec. 473.7, subd. (a)(1).

Case:  000054   

We find there was insufficient evidence to prove beyond reasonable doubt that the defendant’s prior strikes were based on separate criminal acts, and we remand for resentencing on that basis. There was insufficient evidence to impose his federal conviction for bank robbery as a prior strike because it could not be shown that the conviction was based on a different criminal act than either of his two state robbery convictions.

First Holding:  If two strike offenses are based on a single act, the court must dismiss one of the strikes. [See] People v. Vargas (2014) 59 Cal.4th 635, 638.

Second Holding:  Prior convictions for “multiple criminal acts” “committed in a single course of conduct” may be treated as separate strikes, so long as the convictions are not “so closely connected that treating them as separate strikes would be contrary to the spirit of the Three Strikes law. [See] People v. Benson (1998) 18 Cal.4th 24, 35; People v. Vargas (2014) 59 Cal.4th 635, 648.

Third Holding:  Penal Code section 654 does not apply to successive federal and state prosecutions. [See] People v. Belcher (1974) 11 Cal.3d 91, 98.; People v. Fielder (2004) 114 Cal.App.4th 1221, 1234 [Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence].

[GARY NOTE: The California Supreme Court issued its opinion–published, of course, but hey!–in People v. Shaw on December 15, 2025. It concluded that only one strike can be based on the single act of vehicular manslaughter that resulted in the death of two occupants of the car his vehicle struck. One justice wrote a concurring opinion in which he questioned the continuing validity of People v. Benson (1998) 18 Cal.4th 24 (holding that two prior offenses committed seconds apart against a single victim may be treated as separate strikes) and People v. Fuhrman (1997) 16 Cal.4th 930 (holding that two offenses committed in quick succession against two separate victims qualify as separate strikes). Two other justices agreed with the concurring opinion. It may be that the majority believed that Shaw did not present the precise question raised in Benson and Furhman and therefore decided not to venture beyond the facts before it at this time. That’s pure speculation by me, of course. But there may be an audience in our high court willing to closely examine exactly what can constitute separate strikes where the crimes are closely related in time and nature.]

Case:  000055   

There can be no parole restitution fine on sentences of life without the possibility of parole.  We will strike the fine and direct the trial court to issue a new abstract of judgment.

Holding:  Because defendant was sentenced to prison for life without the possibility of parole, her parole revocation fine should be stricken. [See] People v. Coleman (2024) 98 Cal.App.5th 709, 725.

Case:  000056   

The defendant appeals an order partially denying his request for resentencing pursuant to Penal Code  section 1172.75.  We reverse the order because the defendant was entitled to have the court consider his eligibility for relief under Assembly Bill No. 333.

First Holding:  Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements; [See] People v. Saldana (2023) 97 Cal.App.5th 1270, 1276 ; People v. Lopez (2025) 17 Cal.5th 388.

Second Holding:  Assembly Bill 333 (revising the elements that must be proven to support gang crimes and enhancement allegations) applies to cases where a defendant is resentenced pursuant to section 1172.75, even where there was a negotiated plea agreement [See] People v. Lopez (2025) 17 Cal.5th 388, 400.

Third Holding:  Assembly Bill 333 took effect on January 1, 2022 and is considered ameliorative legislation. [See] People v. Lopez (2025) 17 Cal.5th 388, 397; People v. E.H. (2022) 75 Cal.App.5th 467, 477.

Fourth Holding:  The trial court should have considered the applicability of Assembly Bill 333 in the context of the defendant’s resentencing under section 1172.75, whether or not his counsel brought the issue to the attention of the court.  By its express language, section 1172.75 itself puts the onus on the trial court to “apply any other changes in law that reduce sentences.” Assembly Bill 333 is such a law and should have been addressed by the trial court. [See] Penal Code section 1172.75, subd. (d)(2).

Fifth Holding:  In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all non-final cases.   [See] In re Estrada (1965) 63 Cal.2d 740, 745.

Sixth Holding:  For purposes of Estrada, the test for finality is “whether the criminal prosecution or proceeding as a whole is complete.” [See] People v. Esquivel (2021) 11 Cal.5th 671, 679.)  (The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability.).

Case:  000057   

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, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the trial court to hold that hearing.

Holding:  Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75 [See] People v. Rhodius (2025) 17 Cal.5th 1050.

Case:  000059   

We find there is insufficient evidence to support one of the convictions for sexual penetration. We find no other errors. Thus, we reverse in part, affirm in part, and remand for resentencing.

First Holding:  When considering a challenge to 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—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. [See] People v. Lindberg (2008) 45 Cal.4th 1, 27.

Second Holding:  In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [See] People v. Young (2005) 34 Cal.4th 1149, 1181.

Third Holding:  The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. [See] People v. Bloom (1989) 48 Cal.3d 1194, 1208.

Fourth Holding:  Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [See] People v. Bloom (1989) 48 Cal.3d 1194, 1208.

Case:  000060

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.   

First Holding:  The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months. [See] Pen. Code, sec. 1170.1, subd. (a); People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months].

Second Holding:  The court may correct unauthorized sentence at any time. [See] People v. Scott (1994) 9 Cal.4th 331, 354.  [GARY NOTE:  This may be  true only if the court has jurisdiction to proceed in the case, as established by other case law.  You’ll want to review  People v. Singleton (2025) 113 Cal.App.5th 783; People v. Boyd (2024) 103 Cal.App. 56; and People v. Codinha (2023) 92 Cal.App.5th 976 (and the cases they cite) if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Third Holding:  Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment.  Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.  [See] People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 (on the principle that the oral pronouncement normally controls).

Case:  000062

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (§ 667, subd. (a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (§ 451.1, subd. (a)(1)).  The Attorney General correctly concedes and additionally contends we can modify the judgment without a remand.  We agree. The court also struck fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.  

First Holding:  A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (§ 667, subd. (a)) that was not alleged. [See] Penal Code section 1170.1, subd. (e); People v. Anderson (2020) 9 Cal.5th 946, 953; A claim that a sentence is unauthorized … may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, citing People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.

Second Holding: It is improper to stay the punishment for an enhancement, as opposed to striking it.   [See] People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Lopez (2004) 119 Cal.App.4th 355, 364.

Third Holding:  Because the court clearly indicated it would not impose these enhancements, remand is not required. [See] People v. Salazar (2023) 15 Cal.5th 416, 431.

Fourth Holding:  The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay.  The abstract of judgment must be amended to conform to the oral judgment. [See] People v. Hamed (2013) 221 Cal.App.4th 928, 937–938.

Case:  000063

The defendant argues that the trial court abused its discretion in denying his request for a continuance (on day of trial) because his application for mental health diversion constituted good cause to do so.  We agree, and we reverse.

First Holding:  As to what is required to show an abuse of discretion, it has been described as a decision that exceeds the bounds of reason  or one that is arbitrary, capricious, patently absurd, or even whimsical.  But the standard cannot be boiled down to simply calling for reversal only if a ruling appears to be arbitrary, capricious or utterly irrational. [See] People v. Beames (2007) 40 Cal.4th 907, 92; Artus v. Gramercy Towers Condominium Assn. (2022) 76 Cal.App.5th 1043, 1051; People v. Williams (2021) 63 Cal.App.5th 990, 1000; People v. Jacobs (2007) 156 Cal.App.4th 728, 736–738.

Second Holding:  The legal component of discretion was explained long ago in Bailey v. Taaffe (1866) 29 Cal.422, 424:  “The discretion intended . . . is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . .” [See] Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407.

Third Holding:  The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [See] People v. Navarro (2021) 12 Cal.5th 285, 330.

Fourth Holding:  We review the trial court’s denial of a continuance for abuse of discretion. In particular, we decide whether the denial of a continuance was so arbitrary as to violate due process.  There are no mechanical tests for doing so [See] People v. Mungia (2008) 44 Cal.4th 1101, 1118; Ungar v. Sarafite (1964) 376 U.S. 575, 589.

Fifth Holding:  In deciding whether good cause exists, courts consider whether the moving party has acted diligently, the anticipated benefits of the continuance, the burden that the continuance would impose on witnesses, jurors, and the court; and above all, whether substantial justice will be accomplished or defeated by a granting of the motion. [See] People v. Reed (2018) 4 Cal.5th 989, 1004P; People v. Doolin (2009) 45 Cal.4th 390, 450; People v. Gonzalez (2021) 12 Cal.5th 367, 387.

Sixth Holding:  In sum, as the court explained—albeit in the civil context—in Hamilton v. Orange County Sheriff’s Department:  We recognize that [defense] counsel was not optimally diligent, and he certainly could have better attended to the procedural details of obtaining a continuance.  …  But this relatively minor lack of diligence did not justify the substantial injustice the court’s order created. . . . Where denial of a continuance would result in a manifest injustice, as it did here, the policy disfavoring continuances must give way. [See] Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759.

Who doesn’t really like purple flowers? Among my favorite!

Okay, I’ve promised previews. I’m going back in time to add the pre-summary summaries. In this Eighth post, we get treated by the following:

If the evidence doesn’t support the greater offense, it may modify the judgment to reflect a conviction for a lesser included offense;

It is important that minute orders and abstracts of judgment reflect what the judge actually ordered;

Restitution fines are not collectible after 10 years;

The trial court must choose the correct triad for a determinate sentence;

Probation conditions must be adequately specific and reasonable (timely objections may be critical);

One is entitled to full resentencing under section 1172.75 even if the now-invalid enhancement for prior prison terms was never executed;

A judge cannot unilaterally fine a defendant for an uncharged infraction where the process must instead be initiated by the prosecution.

Case:  000040

Two of the convictions for a lewd act upon a child of 14 or 15 years must be reversed because there was insufficient evidence that victim was under 16 years old at the time of the crimes. The People concede and ask us to modify the verdicts to the lesser included and affirm as modified.  Remanded for full resentencing.

Holding:  Where  the appellate court finds there is insufficient evidence to support a conviction for a greater offense, it may modify the judgment of conviction to reflect a conviction for a lesser included offense.” [See] People v. Ellis (2025) 108 Cal.App.5th 590, 601.

Case:  000041

At the resentencing hearing conducted after the remittitur issued, the trial court declined to strike or reduce the Penal Code  section 12022.53, subdivision (d) firearm enhancement and reimposed the sentence of 50 years to life.  The parties agree that the trial court lacked jurisdiction to conduct the earlier hearing (while the appeal was up in higher court, the trial court permitted the prosecution to file new circumstance in aggravation) and the matter must be remanded for a new resentencing hearing.  Accordingly, we reverse and remand for a new sentencing hearing conducted in accordance with Senate Bill 567.  

First Holding:  It is well established that “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.”  [See] People v. Perez (1979) 23 Cal.3d 545, 554; People v. Burhop (2021) 65 Cal.App.5th 808, 813.

Second Holding:  This jurisdictional rule serves to “protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided,” and “prevents the trial court from rendering an appeal futile by altering the appealed judgment . . . by conducting other proceedings that may affect it.” [See] People v. Awad (2015) 238 Cal.App.4th 215, 224.;

Third Holding:  During the premature hearing, the trial court permitted the prosecution to amend the information to add a factor in aggravation pursuant to California Rules of Court, rule 4.421(b)(1), and accepted defendant’s waiver of his right to trial and admission to the new allegation. Because the trial court lacked jurisdiction to conduct this hearing, all proceedings conducted during that hearing—including the amendment of the information and defendant’s subsequent admission—are null and void.  [See] People v. Williams (1999) 77 Cal.App.4th 436, 446-447.

Case:  000042

The matter is remanded for the trial court to correct the nunc pro tunc minute order dated in 2024 to reflect that in 2022, the defendant was resentenced pursuant to section 1170.  The judgment is otherwise affirmed.  The minute order incorrectly reflects that in 2022, the defendant was resentenced pursuant to sections 1172.7 and 1172.75, and must be corrected to reflect that he was resentenced pursuant to section 1170.

Holding:  The matter is remanded for the trial court to correct the nunc pro tunc minute order dated October 24, 2024, to reflect that on January 26, 2022, the defendant was resentenced pursuant to section 1170.

[GARY NOTE: The court did not cite authority other than that both parties agreed, but generally speaking, the minute order must be amended to conform to the oral pronouncement.  See People v. Price (2004) 120 Cal.App.4th 224, 242 [“Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error.  Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.”]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]; accord People v. Jones (2012) 54 Cal.4th 1, 89.]

Case:  000043

The judgments in both defendants’ cases are modified to vacate the restitution fine imposed pursuant to section 1202.4.

First Holding:  Restitution fines are no longer collectible 10 years after their imposition. [See] Effective January 1, 2025, Penal Code section 1465.9 was amended 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.”  (Stats. 2024, ch. 805, § 1.).

Second Holding:  Any remaining amount on their restitution fines should now be vacated. [See] People v. Greeley (2021) 70 Cal.App.5th 609, 626-627 [interpreting Gov. Code, § 6111, subd. (a), providing that as of July 1, 2021, “the unpaid balance of any court-imposed costs” pursuant to specified statutes “is unenforceable and uncollectable and any portion of a judgment imposing those costs shall be vacated”].

Case:  000044

The appellate court corrected the sentence to the correct term (16 months not 2 years), running some counts concurrent per the trial court order rather than consecutive per the abstract of judgment, and corrected the abstract to include several fees and fines that were imposed. 

First Holding:  The abstract and minute order must be corrected to reflect that the “one third of the midterm” pronounced by the judge should have been 16 months, not two years, because the middle term for the offense is four years, not six years. [See] People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]; accord People v. Jones (2012) 54 Cal.4th 1, 89.

Second Holding:  Because the minute order incorrectly states that the sentences were to run consecutively, rather than concurrently as actually ordered by the court, the minute order must be corrected, as the oral pronouncement controls. [See] People v. Price (2004) 120 Cal.App.4th 224, 242 [“Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error.  Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.”

Third Holding:  The appellate court may correct the amount imposed by the superior court for specified assessments whose amounts are mandatory. [See] People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 [“Because the seven additional assessments, surcharge, and penalties are mandatory, their omission may be corrected for the first time on appeal”].

Case:  000045

On appeal, the minor contends that the electronics search conditions should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or, at a minimum, modified as unconstitutionally overbroad.  He also maintains that the association condition should be modified due to its overbreadth.  We find the electronics search conditions reasonable under Lent, but we accept the People’s concession that they are unconstitutionally overbroad.  We see no constitutional infirmity in the association condition.  We therefore remand the matter to the trial court to strike or modify the electronics search condition.  Remanded to modify terms 9 and 16. 

First Holding:  The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal.   And only facial constitutional challenges to a probation condition that are “capable of correction without reference to the particular sentencing record” are exempt from the general forfeiture rule. [See] People v. Welch (1993) 5 Cal.4th 228, 234-235, 237; In re P.O. (2016) 246 Cal.App.4th 288, 294; In re Sheena K. (2007) 40 Cal.4th 875, 887.

Second Holding:  The court may nevertheless exercise its discretion to consider the merits of both his Lent and constitutional claims in light of the People’s concession and the minor’s alternative contention that his trial counsel’s failure to make an adequate objection constituted ineffective assistance.  [See] People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions].

Third Holding:  Under People v. Lent (1975) 15 Cal.3d 481, a condition of probation “will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.  We find dispositive the first element of Lent’s test, which “asks whether the probation condition has no relationship to the conviction.” Here, the record supports an implied finding that there was a relationship between the offense and minor’s use of an electronic device and the internet. [See] People v. Olguin (2008) 45 Cal.4th 375, 379; People v. Patton (2019) 41 Cal.App.5th 934, 945; see Lent, supra, 15 Cal.3d at p. 486.

Fourth Holding:  In applying the Lent test, we review the conditions imposed for abuse of discretion. [See] In re Ricardo P. (2019) 7 Cal.5th 1113, 1118; People v. Salvador (2022) 83 Cal.App.5th 57, 62, 64.

Fifth Holding:  We review constitutional overbreadth questions de novo. [See] In re P.O. (2016) 246 Cal.App.4th 288, at p. 297.

 Sixth Holding:  The electronic search conditions here were overly broad. [See] People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 [“If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ” ]; In re Sheena K. (2007) 40 Cal.4th 875, 890 [“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.”]; In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [“The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.”];

Case:  000046, Case:  000047, and Case:  000048

[GARY’S NOTE:  All three cases held exactly the same and are lumped together here.]  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
Holding:  People v. Rhodius (2025) 17 Cal.5th 1050 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. [See] People v. Rhodius (2025) 17 Cal.5th 1050.;

Case 000049 There is no Case 000049]

Case:  000050

The trial court erred in imposing a $100 infraction fine after defendant failed to submit a firearm relinquishment form.  Here, the People did not charge or approve the charging of an infraction for failure to file a completed Prohibited Persons Relinquishment Form.  Nevertheless, the trial court found that defendant did not file the required form and imposed the $100 fine.  As the People concede, “[t]his was beyond its power to do.”  We will modify the judgment to strike the fine.

First Holding:  The court may not unilaterally fine a defendant for failing to complete a firearms relinquishment form.  The process requires first that a prosecutor file a complaint alleging violation of Penal Code section 29810. Penal Code section 29810 requires persons convicted of a felony to relinquish all firearms within a prescribed period of time following the conviction. Section 29810, subdivision (c)(5):  Failure by a defendant to timely file the completed Prohibited Persons Relinquishment Form with the assigned probation officer shall constitute an infraction punishable by a fine not exceeding one hundred dollars ($100).

Second Holding:  Due process of law requires that criminal prosecutions be instituted through the regular processes of law.  These regular processes include the requirement that the institution of any criminal proceeding be authorized and approved by the district attorney. [See] People v. Villatoro (2020) 44 Cal.App.5th 365, 369.

Undoubtedly wishing to see Beethoven rolling over in his grave on his birthday. Nature’s sanitary engineer prototype. They like to buzz my dogs, who could be good bird dogs if they could just jump a little higher.

Today we explore these tidbits:

A person who serves time in jail gets credit for that time, assuming it’s attibutable to the reason the person is in jail. [Gary Editorial Note: prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971. It was originally to be applied prospectively only, but that was held to violate equal protection guarantees. Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released. Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.” Alas, that restriction is nowhere to be found today.]

A judge erred in not instructing on a lesser included offense;

At the initial stage of the proceedings, the judge should not have relied on the simple fact of conviction to determine that a defendant was not eligible for recall of the sentence under section 1172.6, because the conviction did not establish ineligibility as a matter of law;

A judge erred in instructing a jury that a pocketknife could be an inherently dangerous weapon.

Case: 000036

We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment, but we otherwise affirm.

First Holding: Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [See] Penal Code section 2900.5, subd. (d); People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37.

Second Holding: When a defendant is imprisoned and later resentenced, “the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29.

Case: 000037

The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.

First Holding: A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo. [See] People v. Simon (2016) 1 Cal.5th 98, 133.

Second Holding: The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. [See] People v. Hardy (2018) 5 Cal.5th 56, 98.

Third Holding: In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight. [See] People v. Breverman (1998) 19 Cal.4th 142, 161, disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260.

Fourth Holding: Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense. [See] People v. Simon (2016) 1 Cal.5th 98, 133.

Fifth Holding: Doubts about whether an instruction is warranted should be resolved in favor of the accused. [See] People v. Tufunga (1999) 21 Cal.4th 935, 944.

Sixth Holding: When confronted with an objection, it is the trial court’s obligation to rule. Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record. [See] Reid v. Google (2010) 50 Cal.4th 512, 524, 532.

Seventh Holding: [Gary’s introductory comment:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s exercise of his right to remain silent. [See] Griffin v. California (1965) 380 U.S. 609; ; Doyle v. Ohio (1976) 426 U.S. 610; People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings; Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel. (People v. Fabert (1982) 127 Cal.App.3d 604, 609; People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 387.).

Eighth Holding: In Griffin v. California (1965) 380 U.S. 609, the high court held that the prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. (People v. Hardy (1992) 2 Cal.4th 86, 153–154.) Griffin/Doyle error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. (United States v. Hasting (1983) 461 U.S. 499, 507–509; Hardy, supra, 2 Cal.4th at p. 154.) “[W]e ask whether, absent the prosecutor’s reference to [defendant’s] failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?” (Hardy, at p. 154.)

Ninth Holding: “[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572.) But the error is prejudicial if “the evidence against defendant is less than overwhelming” and “the improper comment touched ‘a live nerve in the [appellant’s] defense.’ ” (Galloway [People v. Galloway (1979) 100 Cal.App.3d 551], supra, 100 Cal.App.3d at p. 560.) It is prejudicial if it “ ‘serve[d] to fill an evidentiary gap in the prosecution’s case.’ ” (People v. Medina (1974) 41 Cal.App.3d 438, 463.) We are instructed to ask “ ‘whether the comment actually or implicitly invited the jury to infer guilt from silence.’ ” (Hardy, at p. 159.)

Tenth Holding: The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction. (People v. Galloway (1979) 100 Cal.App.3d 551, at p. 560.)

Eleventh Holding: Griffin v. California (1965) 380 U.S. 609 prohibits the prosecution from “so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287; see also People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present].)

Case: 000038

Because the record of conviction does not conclusively establish the defendant is ineligible for resentencing under Penal Code section 1172.6 on his manslaughter conviction as a matter of law, the court reversed and remanded the matter for the court to issue an order to show cause and conduct an evidentiary hearing on that count.

First Holding: A defendant who pleaded no contest to manslaughter is eligible for resentencing if the charging document permitted the prosecution to pursue a conviction under the felony-murder rule, the natural and probable consequences doctrine, or any other imputed malice theory. [See] People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211; Penal Code section 1172.6, subdivision (a).

Second Holding: Absent exceptional circumstances, appellate courts generally do not take judicial notice of evidence not presented to the trial court. [See] Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 417, fn. 7.

Case: 000039

Although harmless error, the trial court erred in instructing the jury on the legally invalid theory that a pocketknife could be an inherently deadly weapon.

First Holding: The evidence did not support instructing the jury on inherently deadly weapons because a knife is not inherently deadly as a matter of law. Only a few items that are designed to be used as deadly weapons are inherently deadly. The court should not have given the instruction because, as with most weapons, the knife was not, as a matter of law, inherently deadly and inclusion of an instruction on inherently deadly weapons was unnecessary. [See] People v. Aledamat (2019) 8 Cal.5th 1.

Second Holding: Though the court erred when it instructed the jury that it could find the pocketknife an inherently dangerous weapon, this factual error was harmless because the record does not affirmatively demonstrate a reasonable probability that the jury found the defendant guilty solely on the unsupported theory. [See] People v. Rivera (2019) 7 Cal.5th 306, 329.