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Case Summaries

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Appellate Principles, Sentencing

Case 000486

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been stayed under section 654.

First Holding:

Section 654(a) provides 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. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

People v. Bey (2025) 108 Cal.App.5th 144, 167

Discretion, Sentencing, Standard of review

Case 000485

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in ordering interest on the restitution award to accrue from the date of the offense.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims” in an amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.

Authority:

PEN 1202.4(f)

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider in determining victim restitution. When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.

Authority:

People v. Phu (2009) 179 Cal.App.4th 280, 283, 284

People v. Pittman (2024) 99 Cal.App.5th 1252, 1258

Third Holding:

Section 1202.4(f)(3)(G) provides that a restitution order shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. Here, there was no evidence that the victim incurred losses as early as ordered by the court. For this reason, we reverse the portion of the trial court’s restitution order concerning interest accrual and remand for the court to select an appropriate date from which interest on the restitution award accrues.

Authority:

PEN 1202.4(f)(3)(G)

Abstracts and Minutes, Elements of crime, Pleading, Sentencing

Case 000484

Posted on by Gary McCurdy

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

People v. Zachery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000483

Posted on by Gary McCurdy

Error and/or relief

We find insufficient evidence to support the defendant’s conviction for sexual penetration and remand for resentencing on the remaining counts.

First Holding:

Even considering the evidence in the light most favorable to the judgment, we find no evidence to support the defendant’s unlawful sexual penetration conviction. During the victim’s police interview, she made general statements describing the defendant’s conduct, but they constituted vague, euphemistic language requiring followup questions to prove the required penetration. But the officers did not ask any. The officer’s trial testimony regarding what the victim meant, based on the officer’s experience and training, did not clarify the statements. Nothing indicates that the victim ascribed the same meaning and the officer’s testimony asserted. Nor did the victim clarify the acts in her testimony. Taken together, this evidence does not constitute precise and specific testimony to prove the required penetration beyond a reasonable doubt.

Authority:

People v. Haynes (1998) 61 Cal.App.4th 1282, 1291

People v. Paz (2017) 10 Cal.App.5th 1023, 1038

People v. Jones (1990) 51 Cal.3d 294, 316 [though a child sexual crime victim need not specify precise dates, times and circumstances, she must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct]

People v. Quintana (2001) 89 Cal.App.4th 1362, 1371

Second Holding:

On this record, we must reverse the sexual penetration conviction. We strike his sentence for that count and remand for a full resentencing as to all counts so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [trial courts have jurisdiction to modify every aspect of sentence on the counts that were affirmed, including the term imposed as the principal term]

Elements of crime, Juveniles, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000482

Posted on by Gary McCurdy

Error and/or relief

No substantial evidence supports the juvenile court’s order sustaining allegations relating to property theft. The minor came into the store with two adult males. One of the adults asked the clerk to bring him clothes that matched shoes he had previously purchased. The group took six items into a fitting room. Subsequently, one of the adults asked the clerk for different sizes and she went to the back of the store to get them. When she returned to the fitting room, only the two adults were there. The clerk did not see the minor leave. Security camera footage showed the minor leaving the store about five minutes after the group had entered the fitting room. Shortly thereafter, the two adults came out of the fitting room, returned five items to the clerk, and left. The sixth item, a green sweater, was missing from the store.

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

First Holding:

Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Evidence that merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact. The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact.

In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

Authority:

In re V.V. (2011) 51 Cal.4th 1020, 1026

People v. Collins (2025) 17 Cal.5th 293, 307-308

Second Holding:

An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 611

Third Holding:

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

Authority:

People v. Collins (2025) 17 Cal.5th 293, 307

In re Leanna W. (2004) 120 Cal.App.4th 735, 741, 744 [where liquor was missing and property was damaged after the minor hosted a party at her grandmother’s home while her grandmother was away, no substantial evidence supported burglary and vandalism findings because the fact that the minor was present when the liquor was used does not show that she actually consumed it, much less that she had the specific intent to take it when she entered the house and there is no evidence that the minor was the person who damaged or destroyed the property]