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Case Summaries

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Juveniles, Sentencing

Case 000549

Posted on by Gary McCurdy

Error and/or relief

Upon determining that the minor violated probation by using marijuana, the juvenile court committed the minor to juvenile hall for 18 months, a sentence that the court had initially stayed in favor of home detention on probation with GPS monitoring. On appeal, the minor argues that the juvenile court abused its discretion in automatically lifting the stay and imposing the commitment without a reassessment of the minor’s circumstances. The juvenile court erred in imposing the 18-month commitment without considering relevant factors and will vacate the disposition order and remand for the court to conduct a new disposition hearing.

First Holding:

The juvenile court’s decision may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to juvenile hall.

Authority:

In re Jose T. (2010) 191 Cal.App.4th 1142, 1147

Second Holding:

A juvenile court cannot lift an imposed, stayed or suspended term of confinement without meeting the requirements of Welfare and Institutions Code section 777. Section 777 requires that an order changing or modifying a previous order by removing a minor from the physical custody of a parent and directing commitment to a county institution shall be made only after a noticed hearing.

Authority:

In re Gabriel T. (2016) 3 Cal.App.5th 952, 960

In re Jose T. (2010) 191 Cal.App.4th 1142, 1147

Third Holding:

In order to commit the minor to juvenile hall, the court must be fully satisfied that the minor’s mental and physical condition and qualifications render it probable the minor will benefit from the commitment. To determine what is appropriate under a given set of circumstances, a court must review those circumstances every time the minor appears for a dispositional hearing. Juvenile courts must consider safety and protection of the public and the best interests of the minor in all deliberations. Violation of a juvenile court’s order cannot lead automatically to imposition of some reserved measure, but requires a complete review of the order and such amendments as the court finds meet and proper under the governing statutory criteria.

Authority:

WIC 734

WIC 202

In re Gabriel T. (2016) 3 Cal.App.5th 952, 960

In re Jose T. (2010) 191 Cal.App.4th 1142, 1147-1148 [The juvenile court must determine the best manner in which to facilitate the rehabilitation of the minor]

In re Chad S. (1994) 30 Cal.App.4th 607, 614

In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1088-1089

Appellate Principles, Duty of counsel, Duty of the court, Sentencing

Case 000548

Posted on by Gary McCurdy

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Fines and fees, Sentencing

Case 000547

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the balance of the restitution fine must be struck, as it was imposed more than 10 years ago.

Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years cannot be collected upon. The restitution fine here more than 10 years ago. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Elements of crime, Evidence, Fifth Amendment, Fines and fees, Sufficiency of and substantial evidence

Case 000546

Posted on by Gary McCurdy

Error and/or relief

In this trial that resulted in a conviction of two counts of felony vandalism, the trial court erred under state law by admitting the victim’s hearsay testimony about the costs to repair her vehicle. The admission of the hearsay testimony was prejudicial under state law. We reverse the vandalism convictions and remand for the People to elect whether to retry them as felonies or accept their reduction to misdemeanors.

First Holding:

Other than the deductible, an insurance company paid for the repair of the damages. The victims testified to what she was told was the cost of the repairs. No repair bill was introduced into evidence. The trial court erroneously overruled defendant’s objections to the victim’s hearsay statements regarding the cost of repairs. State-law errors are reviewed for harmlessness under Watson. Under Watson, reversal is required if there is a reasonable probability that the defendant would have achieved a more favorable result absent the out-of-court statements.

Authority:

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

People v. Seumanu (2015) 61 Cal.4th 1293, 1308

People v. Lozano (2024) 101 Cal.App.5th 366, 381–382

Second Holding:

The vandalism convictions must be reduced to misdemeanors because of the error in admitting the victim’s hearsay testimony. The only further relief the defendant could obtain from prevailing on his substantial-evidence claim is a bar to retrying him on the damage-value element. To resolve this claim, we consider whether the record contains substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. 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 jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 591

People v. Manibusan (2013) 58 Cal.4th 40, 87

Third Holding:

Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission. The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that the defendant has been convicted through a judicial process that is defective in some fundamental respect.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684

Duty of the court, Probation Parole PRCS

Case 000545

Posted on by Gary McCurdy

Error and/or relief

The petitioner’s motion to dismissal under section 1203.4 upon complete of probation was mandatory, and should have been granted.

First Holding:

Once a defendant has fulfilled all the conditions of probation for the entire period of probation (or has been discharged prior to the termination of the period of probation), and are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, section 1203.4 provides that a defendant must be permitted to withdraw the plea of guilty and have the court dismiss the accusations or information against the defendant and be released from all penalties and disabilities except as provided in Vehicle Code section 13555.

Authority:

PEN 1203.4

Second Holding:

If the defendant has fulfilled the conditions of probation for the entire period of probation, dismissal is mandatory. If the defendant has not fulfilled the conditions of probation for the entire period of probation or been discharged prior to the termination of the period of probation, the court may still grant relief in its discretion in the interests of justice. Here, the defendant had fulfilled the conditions of probation for the entire period of probation, was not not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense. It was error to deny the petition.

Authority:

People v. Daffeh (2024) 104 Cal.App.5th 790, 796

People v. Guillen (2013) 218 Cal.App.4th 975, 991

Duty of the court, Effective assistance of counsel, Plea bargains, Probation Parole PRCS, Sentencing

Case 000544

Posted on by Gary McCurdy

Error and/or relief

When the court set the probation term at three years instead of the agreed-on two years, the court erred in not complying with the plea bargain without permitting the defendant to withdraw from the plea agreement.

First Holding:

The standard for evaluating claims that counsel provided constitutionally ineffective assistance is set forth in Strickland. This standard provides that to secure reversal upon the ground of ineffective assistance of counsel under either the state or federal Constitution, an appellant must establish (1) that counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that appellant would have obtained a more favorable result absent counsel’s shortcomings.

On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687–694

People v. Cunningham (2001) 25 Cal.4th 926, 1003

People v. Mai (2013) 57 Cal.4th 986, 1009

Second Holding:

It is the appellant’s burden to demonstrate by a preponderance of the evidence that his or her counsel’s performance fell below an objective standard of reasonableness. Unless an appellant establishes the contrary, we shall presume that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Further, failure to raise a meritless objection is not ineffective assistance of counsel.

Authority:

In re Thomas (2006) 37 Cal.4th 1249, 1257

People v. Ledesma (2006) 39 Cal.4th 641, 746

People v. Bradley (2012) 208 Cal.App.4th 64, 90

Third Holding:

The defendant argues that his trial counsel was ineffective by failing to object when the trial court placed on a three-year grant of probation instead of the two-year probation term contemplated by the plea agreement. However, the order of probation is an unauthorized sentence, on which basis we reverse, rendering moot the question of ineffective assistance of counsel.

The Legislature enacted AB 1950, effective January 1, 2021, which significantly changed the law governing probation, including section 1203.1. Under the amended version of section 1203.1, the maximum term of probation a trial court may impose for most felony offenses is a period of time not exceeding two years. Whereas previous law had authorized courts to grant a period of probation not exceeding the maximum term for which the person could be imprisoned, AB 1950 instead authorizes a court to impose a term of probation not longer than 2 years, except as otherwise specified. As a general matter, the amendments of AB 1950 apply retroactively to the benefit of a person whose judgment is not yet final on appeal.

Authority:

PEN 1203.1

People v. Arreguin (2022) 79 Cal.App.5th 787, 793

People v. Faial (2025) 18 Cal.5th 199, 207

People v. Prudholme (2023) 14 Cal.5th 961, 963 [modifying term of probation to conform with new law while preserving remainder of plea agreement]

Fourth Holding:

Generally, a court may not accept an unauthorized plea. Where a trial court is asked to approve an illegal plea bargain—illegal because it violates a policy condition established by the Legislature or the people through the initiative process—the proper course of action for the court is clear. It should decline to act in excess of its authority and should refuse to approve an arrangement under which it is called upon to do so. Faced with an unlawful plea bargain, a trial court should withhold approval of the bargain.

Thus, if a court has approved a plea bargain containing an illegal term, ordinarily, the recourse for a court would not be to reform the bargain to make it legal; it would be to withdraw its prior approval of the agreement. Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission request by one or both of the parties, the trial court must restore the parties to the status quo ante. The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.

Authority:

People v. Prudholme (2023) 14 Cal.5th 961, 974

People v. Stamps (2020) 9 Cal.5th 685, 707

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757 [When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered]

People v. Barton (2020) 52 Cal.App.5th 1145, 1159

[Gary Note:

Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

But Wait! There’s More!

On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

But it contained a very important footnote:

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”]

Discretion, Sentencing

Case 000543

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.

First Holding:

Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

PEN 1385

People v. Rogers (2025) 108 Cal.App.5th 340, 362

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

Second Holding:

The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854

Fourth Holding:

We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377-378

Fifth Holding:

Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Amelioration, Sentencing

Case 000542

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that a defendant served a separate prior prison term and had not remained free of custody for at least five years. Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses. Enhancements based on prior prison terms served for other offenses became legally invalid. The Legislature later enacted SB 483, effective January 1, 2022, to make the changes implemented by SB No. 136 retroactive by adding what is now numbered section 1172.75 to the Penal Code. Section 1172.75(c) requires the trial court, upon being properly notified that a defendant is serving a sentence that includes a legally invalid prior prison term enhancement, to recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

People v. Jennings (2019) 42 Cal.App.5th 664, 681

People v. Burgess (2022) 86 Cal.App.5th 375, 380

Second Holding:

A court has long had the authority to exercise its discretion and dismiss one or more prior serious felonies that are charged as Strikes under the Three Strikes law. A trial court has the authority to strike prior strikes under section 1385(a) and Romero at a section 1172.75 hearing. Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either. As the trial court misunderstood the scope of its discretion, he case is remanded for a resentencing hearing. At that hearing, the trial court is directed to consider its full range of lawful sentencing options, including whether to grant or deny the defendant’s Romero motion.

Authority:

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

People v. Rogers (2025) 108 Cal.App.5th 340, 345, 362

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

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 be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Saffle (1992) 4 Cal.App.4th 434, 438

People v. Vang (2010) 184 Cal.App.4th 912, 916

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b), unless we 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.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

People v. Lynch (2024) 16 Cal.5th 730, 768

Chapman v. California (1967) 386 U.S. 18

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Second Holding:

Any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, trial courts may impose a sentence that exceeds the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances 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.

Authority:

PEN 1170(b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Fourth Holding:

Section 1170(b)(3) provides that 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. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Erlinger v. United States (2024) 602 U.S. 821, 837

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000538

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it contains several errors, including a representation that the court imposed a $300 restitution, contrary to the actual order.

First Holding:

The abstract of judgment reflects a $300 restitution fine under section 1202.4(b) and a $300 parole revocation fine under section 1202.45 that were not orally imposed during the sentencing hearing. Under section 1202.4(b), the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Under section 1202.45, if a defendant’s sentence includes a period of parole or the defendant is subject to post-release community supervision or mandatory supervision, the court shall impose an additional fine in the same amount as the section 1202.4 fine.

The People did not object to the court’s failure to orally impose these fines. Because such fines are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we direct those fines to be stricken.

Authority:

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

Second Holding:

The abstract of judgment reflects that the restitution fine was imposed, but it was not. The oral pronouncement controls, so we amend the abstract of judgment accordingly.

Authority:

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