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Case Summaries

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Duty of the court, Fines and fees, Sentencing

Case 001072

Posted on by Gary McCurdy

Error and/or relief

This is an appeal following a resentencing under section 1172.75. The restitution fine must be vacated because it is more than 10 years old. The trial court erred in failing to calculate the credit for time served and leaving it up to the Department of Corrections and Rehabilitation to correct. The court did not err in selecting the triad 16 months, 2 years, or 3 years for attempted robbery.

First Holding:

Section 1465.9(d) provides for the elimination of any unpaid balance of a restitution fine imposed under section 1202.4 once 10 years has elapsed from the date it was initially ordered.

Authority:

PEN 1465.9(d)

People v. Kopp (2025) 19 Cal.5th 1, 24 [vacating unpaid balance of the restitution fine as required by Penal Code section 1465.9(d)]

People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted March 11, 2026, S295038 on a different issue

Second Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand or resentencing, 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.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [a defendant is entitled to custody credit that includes the date of sentencing]

Third Holding:

While section 664 states that, in general, the punishment for an attempted crime is half that prescribed for the completed crime, that only applies where no other provision is made. Section 213(b) provides that the punishment for attempted robbery is punishable “by imprisonment in state prison.”

Under section 18, except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison.

Because section 213(b) specifically provides for the punishment of attempted second degree robbery, the appropriate triad terms for attempted second degree robbery offense are 16 months, two years, or three years.

Authority:

PEN 664

PEN 213(b)

PEN 18

People v. Moody (2002) 96 Cal.App.4th 987, 990

People v. Neely (2009) 176 Cal.App.4th 787, 797 [Section 213(b), when combined with section 18, provides that attempted second degree robbery is punishable by 16 months, two years, or three years in state prison.]

Abstracts and Minutes

Case 001071

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly lists “2001” as the year the defendant committed the murder underlying the judgment. In fact, the shooting occurred in 2021. The abstract must be corrected.

Holding:

This date is a clerical error and we instruct the court to correct it.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [when there is a clerical error in the abstract of judgment, the appellate court itself should order the trial court to correct the abstract of judgment]

Discretion, Sentencing, Standard of review, Statutory interpretation

Case 001070

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in believing that Health and Safety Code section 11358 is not a “wobbler”–a crime that may be punished as either a misdemeanor or a felony. Remanded for the court to reconsider the defendant’s motion to reduce the offense to a misdemeanor.

First Holding:

A “wobbler” is an offense that may be charged and punished as either a felony or a misdemeanor. If a defendant has been convicted of a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17(b) govern the court’s exercise of discretion to classify the crime as a misdemeanor.

Authority:

PEN 17

Davis v. Municipal Court (1988) 46 Cal.3d 64, 70

People v. Park (2013) 56 Cal.4th 782, 790

Second Holding:

When a crime is punishable, in the discretion of the court, either by imprisonment in state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: … (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

Authority:

PEN 17(b)(3)

Third Holding:

We review a trial court’s decision not to declare a wobbler to be a misdemeanor for abuse of discretion. When a trial court’s decision rests on an error of law, that decision is an abuse of discretion. We independently review questions of statutory interpretation.

Authority:

People v. Lee (2017) 16 Cal.App.5th 861, 866

People v. Lopez (2021) 66 Cal.App.5th 561, 574

People v. Mendoza (2023) 88 Cal.App.5th 287, 294

Fourth Holding:

Health and Safety Code section 11358(c) provides that a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished as a misdemeanor. Section 11358(d) further provides that, notwithstanding subdivision (c), planting, cultivation, harvesting, drying, or processing of more than six cannabis plants by an adult may be punished as a felony if certain aggravating circumstances are present.

(Gary note: Boiled down, the specified aggravating circumstances are of three ilks (the numeration being mine): (a) one or more “super strike” prior convictions (see Penal Code section 667(e)(2)(c)(iv)) or a prior conviction for an offense requiring sex offender registration under Penal Code section 290(c); (b) this is at least the third offense under 11358(c); and (c), the current offense resulted in violation of any of several specified environmental protection provisions.)

Authority:

HSC 11358(c)

Fifth Holding:

In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. We turn first to the statutory language, giving the words their ordinary meaning. If the statutory language is not ambiguous, then the plain meaning of the language governs. If, however, the statutory language lacks clarity, we may resort to extrinsic sources, including the analyses and arguments contained in the official ballot pamphlet, and the ostensible objects to be achieved.

Under well-settled principles of statutory construction, we ordinarily construe the word “may” as permissive and the word “shall” as mandatory, particularly when a single statute uses both terms. In other words, when the Legislature has, as here, used both “shall” and “may” in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively.

Authority:

People v. Lopez (2005) 34 Cal.4th 1002, 1006.

Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542

Sixth Holding:

The plain language of section 11358 is unambiguous. Misdemeanor punishment of the offense defined by subdivision (c) is mandatory, because the statute there says “shall.” But felony punishment of the same conduct when the aggravating circumstances listed in subdivision (d) are present is discretionary, because the statute there says “may.”

Because felony punishment under subdivision (d) is discretionary, the offense defined by that subdivision is a wobbler. The court therefore erred by concluding that subdivision (d) is a straight felony, and the court’s denial of the defendant’s motion under Penal Code section 17(b) on that basis was an abuse of discretion.

Authority:

PEN 17(b)

(Gary note: For your convenience, here are subdivisions (b) (c), (e), and (f) of section 17 as of the writing of this summary. I omitted subdivision (d), which  pertains to infractions.)

PEN 17
(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to a secure youth treatment facility, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) (A) When the court determines, prior to trial, either on its own motion or the motion of a party, that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

(B) Following a denial of a motion pursuant to subparagraph (A), a subsequent motion pursuant to subparagraph (A) may only be made upon a showing of changed circumstances, which includes, but is not limited to, newly available facts relevant to the charge or defendant’s personal circumstances, or change in the applicable law.

(c) When a defendant is committed to a secure youth treatment facility for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the secure youth treatment facility, thereafter be deemed a misdemeanor for all purposes.

…….

(e) This section does not authorize a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.

(f) When the court exercises its discretion under this section, an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case 001069

Posted on by Gary McCurdy

Error and/or relief

The court erred by engaging in factfinding at the prima facie stage of the proceedings on the defendant motion to vacate his manslaughter conviction under section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

SB 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to seek retroactive relief under the law as amended.

SB 775 (2021-2022 Reg. Sess.) later expanded the statute to apply to attempted murder under the natural and probable consequence doctrine and manslaughter.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

Second Holding:

Section 1172.6(a) applies to those convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime or a person convicted of attempted murder based on the natural and probable consequences doctrine. To be eligible for relief, the petitioner must make a prima facie showing that he could not presently be convicted of murder or attempted murder under changes to these theories of murder liability made effective on January 1, 2019, by SB 1437.

If the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing where the prosecution bears the burden of proving beyond a reasonable doubt that the defendant could still be convicted of murder under current law.

Authority:

PEN 1172.6

Third Holding:

At the prima facie stage, the court may deny a resentencing petition only if the petitioner is ineligible for relief as a matter of law. That is, the petition and the record of conviction must establish conclusively that the defendant is ineligible for relief. This is a pure question of law we review de novo.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 708

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

While the trial court may look to the record of conviction after appointing defense counsel, the prima facie inquiry is limited. The court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if those factual allegations were proved. If so, the court must issue an order to show cause.

At that early stage, the trial court should not reject the petitioner’s factual allegations on credibility grounds or engage in factfinding that involves the weighing of evidence or the exercise of discretion. But if the record contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

(Gary note: For the most part, the balance of the opinion discusses facts specific to this case to show that the preliminary examination, the defendant’s admission that he personally used a firearm, and that he admitted that manslaughter is a serious felony did not establish that the defendant was the actual killer. For the trial court to have reached a conclusion that the defendant was the actual killer, it would have had to engage in factfinding that is not permitted at the prima facie stage. The court should have issued an order to show cause and held and evidentiary hearing, which is what the appellate court remanded the matter for.)

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Jones (2005) 30 Cal. 4th 1084, 1120 [the finding of personal use does not in itself prove defendant was the actual killer]

Appellate Principles, Juveniles, Sufficiency of and substantial evidence

Case 001068

Posted on by Gary McCurdy

Error and/or relief:

The evidence was insufficient to support a finding that the minor was the driver of the vehicle.

(Gary note: This is typical of fact-driven results, where facts unique to a case in an unpublished opinion, but I think it’s valuable to note that the court viewed the available video footage itself to conclude that the minor was actually in the back seat of the vehicle at the time of the accident, and at the very least, the evidence was insufficient even under the deferential standards to support a finding beyond a reasonable doubt.

(In this case, getting the exhibits to the appellate court for viewing clinched the win for the minor. Without that, the appellate court would have had to rely on the law enforcement testimony, and it likely would have found that, from its role as an appellate court (i.e., not a determiner of the facts, which is the role of the trial court), the juvenile court jurisdiction would have to be sustained (i.e., in “adult court” terms, the conviction would have to be affirmed).

First Holding:

To evaluate the minor’s claim that the evidence was insufficient, we review the record for substantial evidence to support the juvenile court’s jurisdictional findings—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the minor committed the crimes.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

In re Z.A. (2012) 207 Cal.App.4th 1401, 1424

In re George T. (2004) 33 Cal.4th 620, 631

Second Holding:

In determining whether findings are supported by substantial evidence, we resolve neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

(Gary note: As I indicated above, the trial court examined the dashcam recording and determined that it was impossible for the minor to have been driving the vehicle at the time of the accident, despite the testimony of two law enforcement officers who had reached a different conclusion from their own review of the video. The balance of the opinion pertains to the appellate court’s observations of the scenes depicted in the video and offers no additional legal information pertinent to these summaries. The court simply found the evidence insufficient to support a finding beyond a reasonable doubt that the minor was the driver.)

Authority:

People v. Demolle (2026) 19 Cal.5th 1117, 1176