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Case Summaries

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Appellate Principles, Effective assistance of counsel, Pleading

Case 000506

Posted on by Gary McCurdy

Error and/or relief

Under a convoluted set of circumstances, misdemeanors were alleged in the information that were not shown at the preliminary examination. Conviction on those misdemeanors was reversed.

First Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. No distinction is made between felony offenses and misdemeanor offenses.

Thus, misdemeanors included in an information must be supported by a showing of probable cause at the preliminary hearing. If not, an amendment that results in a conviction of the erroneously added offense is reversible error. Permitting the two misdemeanor counts to proceed to trial as part of a felony information without having been shown at the preliminary hearing was error and requires the reversal of the convictions for counts 1 and 2.

Authority:

PEN 1009

People v. Griffith (2011) 196 Cal.App.4th 943, 951

People v. Dominguez (2008) 166 Cal.App.4th 858, 867–868 [conviction of improperly added charges is unquestionably prejudicial]

Second Holding:

Both parties agree that the defendant forfeited his claim on appeal by failing to object to the improper amendment before trial, but both ask us to consider the merits to avoid a claim of ineffective assistance of counsel. We agree the claim was forfeited but exercise our discretion to decide the impact of the errant amendment.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 179, 181 [concluding the issue of prosecution for an offense not shown at the preliminary hearing was waived but reversing for prejudicial ineffective assistance of counsel for failure to object with specificity because a superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing]

People v. McCullough (2013) 56 Cal.4th 589, 593 [neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges]

Discretion, Sentencing

Case 000505

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence, and we remand for the trial court to hold a new sentencing hearing, at which it shall consider whether to exercise its discretion under section 1385 to dismiss the one-year enhancement it imposed under section 12022(b)(1).

First Holding:

During the sentencing of the defendant for second degree murder in which it was found true that he used a knife, the court stated it had no discretion to dismiss the enhancement allegation. Section 1385 governs a trial court’s discretion to dismiss an enhancement. Specifically section 1385(c)(1) states that the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. 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.

Under section 1385(a), if the court does not find that dismissal would endanger public safety, 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.) One enumerated mitigating circumstance is that the current offense is connected to mental illness. The defendant identifies that circumstance as potentially applicable here in light of information developed during the mental competency proceedings in this matter.

Authority:

PEN 1385

People v. Walker (2024) 16 Cal.5th 1024, 1029

Second Holding:

The record establishes the trial court was not aware of its discretion under section 1385 to dismiss the weapon enhancement. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is not aware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. Where the trial court was not aware of its discretion to dismiss a sentencing allegation under section 1385, it abuses its discretion. We accordingly conclude the trial court abused its discretion because it was not aware of its discretion to dismiss the weapon enhancement.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490

Third Holding:

When a court has not exercised its informed discretion, remand is the default unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. Here, we find no indication in the record as to how the trial court would have exercised its discretion had it known it had the discretion to dismiss the enhancement. We will therefore remand for the trial court to exercise its discretion under section 1385 regarding the weapon enhancement imposed under section 12022(b)(1).

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Amelioration, Sentencing

Case 000504

Posted on by Gary McCurdy

Error and/or relief

When a person serving a three strikes sentence is resentenced under section 1172.75, it must apply the ameliorative provisions of the Reform Act of 2012, if applicable, subject to a finding that it would post an unreasonable risk of danger to the public as that has been interpreted in the context of the Reform Act.

First Holding:

SB 483, effective on January 1, 2022, added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to ssection 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid. Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements.

After the court receives notice from the California Department of Corrections and Rehabilitation and county correctional administrator that the defendant qualifies for resentencing under section 1172.75, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a), and if so, recall the sentence and resentence the defendant.

When resentencing a defendant under section 1172.75, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

Second Holding:

The Three Strikes Reform Act of 2012 modified the original Three Strikes law of 1994. Under Three Strikes, a third felony of any nature would draw a term of a minimum of 25 years to life if the defendant had previously suffered convictions for two serious felonies (as defined). Under the Reform Act, with certain exceptions, if the current felony is NOT one of the specified serious felony, the sentence would be treated as a two-strike case, in which the sentence would be a doubled determinate sentence rather than a life term.

When a defendant serving a Three Strikes term is resentenced under section 1172.75, the court must modify the Three Strikes term if the triggering third strike was not a serious or violent felony as defined, unless the resentencing would pose an unreasonable risk of danger to the public as that term has been construed in the context of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in part, that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

Authority:

PEN 654

People v. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Abstracts and Minutes

Case 000502

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to accurately reflect the trial court’s oral pronouncement.

Holding:

At a full resentencing hearing, the trial court suspended the restitution fine originally imposed. The court specifically stated, “I will suspend any victim restitution fines due to inability to pay.” The court ordered the abstract of judgment to be amended accordingly. However, the third amended abstract of judgment filed does not reflect the restitution fine as being suspended. The third abstract of judgment shows a restitution fine in the amount of $10,000 pursuant to section 1202.4(b). Generally, when the court’s oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement prevails. This is because the abstract of judgment is not itself the judgment of conviction but merely a summary of the judgment. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. Hence, the third abstract of judgment must be corrected to reflect the trial court’s oral pronouncement of judgment.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

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