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Case Summaries

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Abstracts and Minutes

Case 000511

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains several errors and must be corrected.

Holding:

The abstract of judgment mistakenly included a $40 court operations assessment and a $30 conviction assessment, neither of which the court imposed, and it misidentified the defendant’s custody credits to have been awarded pursuant to section 4019 rather than section 2933.1. It also omitted a reference to subdivision (b) when it reflected the enhancement imposed was pursuant to section 12022.53.

Finally, the abstract did not reflect that the $300 fine imposed per section 1202.4 was suspended by the court unless and until parole was revoked. It is firmly established that fines, fees, and other financial assessments cannot be included in an abstract of judgment in a criminal case unless imposed by the court by its oral pronouncement at sentencing. By the same logic, when the court suspends execution of a fine in its oral pronouncement, that fact must be reflected on the abstract as well.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Abstracts and Minutes, Effective assistance of counsel, Sentencing

Case 000510

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.

First Holding:

A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Welch (1993) 5 Cal.4th 228, 235

Third Holding:

At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.

Authority:

People v. Scott (1994) 9 Cal.4th 331,353

People v. Coleman (2024) 98 Cal.App.5th 709, 723-725

Fourth Holding:

If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 111

Elements of crime, Sentencing

Case 000509

Posted on by Gary McCurdy

Error and/or relief

Three counts of conviction of section 220 were but one crime, and could give rise to only a single conviction.

First Holding:

Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. Whether multiple convictions are proper under section 954 requires our independent evaluation of the statutes at issue.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Aguayo (2022) 13 Cal.5th 974, 979, 994 fn. 8 [we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Rodriguez (2021) 71 Cal.App.5th 921, 936

Second Holding:

The jury convicted the defendant of three violations of section 220(a)(1). The charging information and verdict forms for each section 220 violation did not identify separate assaultive acts. Nor did the jury instruction on the crimes. It grouped the three assault charges together, did not require multiple actus rei, and only potentially differentiated between the charges based on the intended sex crime. The jurors, evaluating the evidence, could have reasonably assigned the same act or acts to all three offenses.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 982–993 [finding assault with a deadly weapon and force-likely assault different statements of the same offense under section 954]

People v. Frank (1865) 28 Cal. 507, 513 [enumerated series of acts in a single statutory provision constitute but one and the same offense]

People v. Thompson (1896) 111 Cal. 242, 247–250 [same, even when a single statutory provision referenced multiple intents]

AppellateAdvisor Updates

Case 000508

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant that the court applied an incorrect legal standard when it decided the Romero motion, so we vacate her sentence and remand for the court to reconsider the Romero motion. The court erroneously believed it did not have discretion to dismiss the strike unless mental illness played a substantial part in the crime. The matter is remanded with directions to reconsider the Romero motion and then to resentence the defendant.

First Holding:

Section 1385(a) gives trial courts discretion to strike prior felony conviction allegations in furtherance of justice. The length of the defendant’s sentence is the overarching consideration because the underlying purpose of striking prior strikes is the avoidance of unjust sentences. The court must consider whether, in light of the nature and circumstances of the defendant’s present offense and prior strikes, and the particulars of their background, character, and prospects, the defendant may be deemed outside the spirit of the three strikes law in whole or in part.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530

People v. Garcia (1999) 20 Cal.4th 490, 500

People v. Williams (1998) 17 Cal.4th 148, 161

Second Holding:

We review the ruling on a Romero motion for abuse of discretion. The court abuses its discretion if the record affirmatively shows that the court misunderstood the scope of its discretion or applied the wrong legal standard.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 376

People v. Lua (2017) 10 Cal.App.5th 1004, 1020

Third Holding:

The court applied the wrong legal standard when it reasoned that if the defendant’s actions were “due to drugs and alcohol, then that is not a DSM-4 or 5, and the Court is not allowed to strike the strikes.” A person’s drug or alcohol use relates to their background, and whether they were under the influence when they committed an offense relates to the nature and circumstances of the offense.

The defendant’s background and the nature and circumstances of the prior offense are mandatory considerations, according to our Supreme Court. Moreover, a defendant’s substance abuse may be a mitigating factor that supports dismissing the prior strike, regardless of whether there is a mental health diagnosis under the DSM. The court therefore applied an incorrect legal standard and misunderstood the scope of its discretion when it concluded that it was not allowed to dismiss the strikes because they resulted from the defendant’s drug or alcohol use.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161 [courts must consider the nature and circumstances of the prior strike offenses, as well as the defendant’s background, character, and prospects]

People v. Garcia (1999) 20 Cal.4th 490, 494, 503

People v. Avila (2020) 57 Cal.App.5th 1134, 1143-1144

Fourth Holding:

Moreover, under the information available in the record, there is a reasonable probability that the defendant would have obtained a more favorable result but for the court’s error.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Appellate Principles, Sentencing

Case 000507

Posted on by Gary McCurdy

Error and/or relief

The defendant was entitled to full resentencing under section 1172.75, even though the now-invalid prior prison enhancement was stayed at the original sentencing.

First Holding:

When a prior conviction pursuant to section 667.5(b) is stricken pursuant to the procedures in section 1172.75, a defendant is entitled to full resentencing under section 1172.75(d).

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Second Holding:

The failure of the People to raise the issue in the trial court forfeits the issue on appeal. The reason for the forfeitur] rule is that it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Sperling (2017) 12 Cal.App.5th 1094, 1101

People v. Partida (2005) 37 Cal.4th 428, 433-434

Third Holding:

If the appellate court’s order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order. At the hearing upon remand, the trial court addressed only the section 667(a), prior convictions as directed by disposition in the Opinion. While the trial court could have addressed the section 667.5(b) priors and the stayed sentences at that time of remand based on a change of the law, it did not do so and was never asked to consider resentencing on the prior prison terms.

Authority:

People v. Walker (2021) 67 Cal.App.5th 198, 205

People v. Hargis (2019) 33 Cal.App.5th 199, 205-207 [where a change in the law becomes effective after the appellate court’s opinion but before the hearing on the limited remand, the trial court could consider the new law despite the limited remand]