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Case Summaries

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Equal protection, Juveniles, Sentencing, Standard of review

Case: 000404

Posted on by Gary McCurdy

Error and/or relief

For criminal conduct committed when he was 17, the imposition of a sentence of a determinate term of nine years plus and indeterminate term of more than 150 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP), and as a matter of equal protection, the defendant must be considered eligible to petition for recall and resentencing under section 1170(d)(1).

First Holding:

Statutory interpretation and the application of undisputed facts to a statute are questions of law we review de novo.

Authority:

People v. Salcido (2008) 166 Cal.App.4th 1303, 1311

Second Holding:

A juvenile defendant who was sentenced to imprisonment for life without the possibility of parole is eligible to seek resentencing under section 1170(d). Although the defendant’s sentence does not fall within the statute’s plain language, the constitutional right of equal protection extends section 1170(d) eligibility to juvenile offenders who were sentenced to the functional equivalent of LWOP.

Authority:

PEN 1170(d)(1)(A)

People v. Heard (2022) 83 Cal.App.5th 608, 633–634

Third Holding:

The defendant’s sentence exceeds the sentence in Heard, and the People concede it unquestionably exceeds the juvenile offender’s natural lifespan.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440, 450–451 [10 years plus 130 years to life constituted functional equivalent of LWOP]

People v. Caballero (2012) 55 Cal.4th 262, 265, 267–268 [40 years plus 70 years to life]

Fourth Holding:

The defendant’s youth offender parole eligibility under section 3051 does not affect his eligibility to seek section 1170(d) resentencing because section 3051 relief became available only after his sentence was imposed. As relevant here, under section 3051, a youth offender sentenced to a life term of 25 years to life or more is eligible for parole after 25 years of incarceration. (PC 3051(b)(3).) Because section 1170(d)(1) refers to what the defendant was sentenced to, what matters is the defendant’s original sentence. We acknowledge that other courts have parted ways with Heard, but we do not.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608, 629

Sentencing

Case: 000403

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.

First Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431

People v. Henderson (1963) 60 Cal.2d 482, 495-497

Second Holding:

When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, 764

People v. Price (1986) 184 Cal.App.3d 1405, 1413

People v. Karaman (1992) 4 Cal.4th 335, 348–350

Third Holding:

Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.

We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.

Authority:

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

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Trammel (2023) 97 Cal.App.5th 415, 435

Juveniles, Sentencing, Sixth Amendment

Case: 000402

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 1170 and the defendant’s right to a jury trial by relying on aggravating factors that were not proven to a jury beyond a reasonable doubt or stipulated to under to section 1170(b). And the court must conduct a Franklin hearing.

First Holding:

On January 1, 2022, SB 567 went into effect, amending section 1170. Section 1170 now authorizes a trial court to impose a sentence exceeding 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. However, 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.

Authority:

PEN 1170(b)(3)

Second Holding:

While not directly addressing section 1170, the United States Supreme Court held that, under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. An exception to this allows a trial court to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834, 838

Third Holding:

In accordance with Erlinger, Wiley held that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The court also addressed two specific aggravating factors specified in the Rules of Court–the increasing seriousness of a defendant’s prior convictions and a defendant’s unsatisfactory performance on probation or parole, and held that each must be found true by a jury before it can be used to justify an upper term sentence.

Authority:

Rules of Court rules 4.421(b)(2) and (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1082-108

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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

Fifth Holding:

In selecting the upper term on count 5, the trial court relied on the defendant’s extensive serious record. While the court did not refer to any specific aggravating factor, it appears the court relied on, at the very least, the increasing seriousness of his prior convictions or sustained juvenile petitions. However, a jury determination is required before a court can rely on this aggravating factor to justify an upper term sentence. Here, there was no jury trial, stipulation, or jury trial waiver on this factor in aggravation. Accordingly, the court’s reliance on this factor to impose an upper term sentence was error.

Authority:

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

Sixth Holding:

The determination of whether these prior convictions are of increasing seriousness is a comparative and qualitative one, which makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. A rational juror may not have been persuaded beyond a reasonable doubt. As we cannot conclude beyond a reasonable doubt that a jury would have found this aggravating factor true, the error was not harmless. As the trial court erred and the error was not harmless, we will vacate the sentence and remand the case for a full resentencing.

Authority:

People v. Wiley [(2025)] 17 Cal.5th 1069, 1087, 1090

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

The trial court also misunderstand its responsibility to conduct a Franklin hearing itself, believing that it was a parole matter to be handled by the Parole Board. A Franklin proceeding gives an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Parole] Board, years later, may properly discharge its obligation to give great weight to youth-related factors in determining whether the offender is fit to rejoin society. On remand, the court must conduct a Franklin hearing.

Authority:

In re Cook (2019) 7 Cal.5th 439, 449

People v. Franklin (2016) 63 Cal.4th 261

Amelioration, Sentencing

Case: 000401

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

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(d)(2)

Second Holding:

Once the trial court received that identification information from the California Department of Corrections and Rehabilitation (CDCR), it had authority over the matter and was statutorily authorized to act. That is, under section 1172.75, subdivision (b), once the CDCR provided this identification to the trial court, it triggered the trial court’s review and resentencing obligations under section 1172.75(b) thereby placing the matter within a statutorily authorized exception to the general rule that a trial court has no jurisdiction to modify a final judgment. And though section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition, the filing of such a procedurally unauthorized motion did not deprive the trial court of the jurisdiction afforded to it by statute to resentence a defendant as mandated by section 1172.75.

Authority:

People v. Cota (2023) 97 Cal.App.5th 318, 332–333

Third Holding:

A defendant is entitled to a full resentencing pursuant to section 1172.75, including resentencing pursuant to the revised penalty provisions of the Three Strikes Reform Act of 2012, provided that he or she can satisfy the substantive eligibility criteria established in section 1170.126 (the section establishing the procedure for those serving life sentences under the Three Strikes Law to seek resentencing as a second strike offender if they met the eligibility requirements of the Reform Act). The Supreme Court harmonized the Legislature-enacted statute section 1172.75 with the initiative Three Strikes Reform Act section 1172.126, construing the discretionary public safety determination of section 1170.126 as applicable at a section 1172.75 resentencing to maintain the integrity of both statutes, such that the two may stand together.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 865, 869-870, 875, 878

Fourth Holding:

Should the court determine to provide relief under the Three Strikes Reform Act, it may also exercise its discretion with regard to which sentence to stay under section 654, now that the statute does not bind the court to impose the sentence on the count that carries the longer potential sentence.

Authority:

PEN 654

People v. Buycks (2018) 5 Cal.5th 857, 893

Effective assistance of counsel, Juveniles, Retroactivity, Sentencing

Case: 000400

Posted on by Gary McCurdy

Error and/or relief

Where the defendant’s judgment was not final when Proposition 57 was passed (making major changes in the treatment of juvenile offenders as adults), and counsel provided ineffective assistance by failing to seek application of Proposition 57 on appeal, the petition for writ of habeas corpus is granted, and the matter is remanded to the juvenile court to consider whether it would have transferred the case to the adult court for prosecution as an adult even under Proposition 57 (in which case, the conviction will be reinstated as of that date) or to instead proceed by juvenile adjudication (in which case the court must conduct a dispositional hearing).

First Holding:

Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing of criminal charges against a juvenile by prosecutors. Certain categories of minors can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor’s maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. The provisions apply to every minor to whom it may constitutionally apply [i.e., it is retroactive to judgments that were not final prior to its passage].

Authority:

People v. Superior Ct. (Lara) (2018) 4 Cal.5th 299, 305-306

Second Holding:

Where a judgment that was final before Proposition 57 was passed is reopened, as when a sentence is vacated under habeas corpus, the judgment is no longer final and is subject to the provisions of Proposition 57.

Authority:

People v. Padilla (2022) 13 Cal.5th 152

Third Holding:

To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. We defer to trial counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel. If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. In this instance, however, the defendant’s attorney submitted a declaration that she had no tactical reason for not raising Proposition 57 on direct appeal demonstrates constitutional ineffective assistance of counsel under the standard set forth above. The defendant was prejudiced by the failure to raise the Proposition 57 issue earlier, because it provides ameliorative benefits.

Authority:

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

People v. Weaver (2001) 26 Cal.4th 876, 925

People v. Gray (2005) 37 Cal.4th 168, 207

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000399

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense is not a serious or violent felony. But under the Reform Act, a defendant does not qualify for this ameliorative change if his current offense is one of several specified violations. Even if not convicted of a disqualifying offense, the ameliorative provisions of the Reform Act also do not apply in cases in which the court finds that release of the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 653

Second Holding:

Where a person serving a life term under the original Three Strikes law is before the court for resentencing under section 1172.75 (under which now-invalid prior prison term enhancements must be vacated and the defendant must be fully resentenced to something no greater than the sentence just vacated), the person must be resentenced under the Three Strikes Reform Act of 2012, unless the court finds that release of the defendant would pose an unreasonable risk of danger to public safety as that term was contemplated in the Reform Act.

Authority:

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

Third Holding:

The abstract of judgment must be corrected because it continues to reflect the five prior prison terms that were stricken by the court under section 1172.75.

[GARY Note: No authority was cited for correcting the abstract, likely because the error and remedy are so obvious, but the there is much authority supporting such orders, such as those I have set forth below.]

Authority:

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

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

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

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Immigration, Standard of review

Case: 000398

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 1991 drug conviction. We conclude the trial court improperly denied his motion as successive. We will reverse and remand with instructions.

First Holding:

Section 1473.7(a)(1) authorizes a person no longer in criminal custody to file a motion to vacate a conviction or sentence that is legally invalid due to prejudicial error damaging person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 517

People v. Espinoza (2023) 14 Cal.5th 311, 319

Second Holding:

We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences. Under that standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

Given intervening amendments to section 1473.7 between the defendant’s first and second motions, we agree with the parties that the section motion was not successive of his first. Effective January 1, 2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) made it easier to retroactively challenge convictions based on an inadequate immigration advisement. Significantly, the new law eliminated the need to meet the requirements of Strickland v. Washington (1984) 466 U.S. 668 (on ineffective assistance of counsel). Section 1473.7 states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. Because the new law provides a different standard for challenging and prevailing based on immigration advisement errors, the earlier motion did not bar appellant’s later motion.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066

Fourth Holding:

Although the trial court erred in denying appellant’s motion as successive, mere judicial error does not establish bias and normally is not a proper ground for disqualification. We find nothing in the record that demonstrates actual bias or the appearance of bias. Thus, we deny the request to appoint a different judicial officer on remand.

Authority:

In re Tuilaepa (2025) 108 Cal.App.5th 1262, 1283

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 108

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000397

Posted on by Gary McCurdy

Error and/or relief

We vacate the true finding that the defendant suffered a prior strike, in light of the retroactivity of AB 333’s amendments to section 186.22 regarding gang criminal activity. The matter is remanded for further proceedings, which may include retrial of the prior strike allegation.

First Holding:

Any felony defined in section 1172.7(c) is a serious felony, and any serious felony is a strike under section 667 and section 1170.12. section 1172.7(c)(28) defines as a serious felony any conviction of section 186.22 and any felony enhanced under 186.22’s provisions.

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1)

PEN 1170.12(b)(1)

PEN 186.22

People v. Briceno (2004) 34 Cal.4th 451, 462

Second Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

In re Estrada (1965) 63 Cal.2d 740

Third Holding:

Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. Application of AB 333 in this manner does not unconstitutionally amend any ballot initiative. Thus, the current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Duty of the court, Fines and fees, Sentencing

Case: 000395

Posted on by Gary McCurdy

Error and/or relief

Because the defendant requested the court impose the minimum restitution fine and the court did not consider his ability to pay and imposed fines exceeding the statutory minimum, we reverse and remand solely for reconsideration of imposition of the fines.

First Holding:

Section 1202.4(b) requires trial courts to impose a restitution fine when a defendant is convicted of a felony unless it finds compelling and extraordinary reasons for not doing so. For felony convictions, the required fine is not less than $300 and not more than $10,000. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine of $300. And for those defendants whose sentence includes a period of parole, the trial court must impose a parole revocation restitution fine in the same amount. The latter fine shall be suspended unless the person’s parole is revoked.

Authority:

PEN 1202.4

PEN 1202.45

Second Holding:

A trial court must conduct an ability to pay hearing before imposing a restitution fine that exceeds the statutory minimum of $300. As in Kopp, the trial court here imposed restitution and parole revocation fines exceeding $300 without conducting an ability to pay hearing. And there is no affirmative evidence indicating that the trial court knew that defendant’s ability to pay was a factor in determining the fine to be imposed. Nor did the trial court indicate that it considered counsel’s objection that the defendant could not afford to pay fines exceeding $300. The trial court only stated that counsel’s “comments are noted for the record.” Thus, we cannot conclude the trial court considered the defendant’s financial wherewithal in deciding to impose more than the minimum fine. We reverse and remand for the trial court to conduct an ability to pay hearing because the imposed fines exceeded the minimum.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Abstracts and Minutes, Fines and fees, Sentencing

Case 000394.txt

Posted on by Gary McCurdy

Error and/or relief

Having sentenced the defendant to a term of life without the possibility of parole, it was error to impose the parole revocation restitution fine. The abstract of judgment must be corrected to conform to the oral pronouncement regarding the sentence imposed on the prior convictions.

First Holding:

Because defendant was also sentenced to LWOP, the court should not have imposed the parole revocation restitution fine.

Authority:

PC 1202.45

People v. McInnis (2021) 63 Cal.App.5th 853, 866-867

Second Holding:

The abstract of judgment inaccurately reflects the total number of years imposed for the prior serious felony enhancements requiring correction. The defendant’s determinate abstract of judgment inaccurately reflects a total of 25 years of prior serious felony enhancements, broken out as 20 years on first line and 5 years on the second line. The trial court imposed four five-year prior serious felony enhancements for a total of 20 years on the murder count. We will direct the trial court to prepare an amended determinate abstract of judgment to correct this mathematical error.

[GARY NOTE: The court did not cite any authority for correction of the abstract of judgment, but plenty exists. The court did not cite the case, but it could have cited.]

Authority:

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

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

People v. Jones (2012) 54 Cal.4th 1, 89

Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case: 000393

Posted on by Gary McCurdy

Error and/or relief

The evidence presented at trial was insufficient to support a finding that the open beer can in this case was a deadly weapon. The conviction for assault with a deadly weapon is reversed.

First Holding:

We review a claim of insufficient evidence under the substantial evidence standard of review. The test is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible and of solid value. We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. It must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict.

Authority:

In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372

People v. Kraft (2000) 23 Cal.4th 978, 1053

In re I.C. (2018) 4 Cal.5th 869, 892

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

People v. Conners (2008) 168 Cal.App.4th 443, 453

Second Holding:

Objects may be deadly weapons as a matter of law, such as dirks and blackjacks, because the ordinary use for which they are designed establishes their character as such. On the other hand, pocket knives, canes, hammers and hatchets are not deemed deadly weapons per se.

Authority:

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

People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on other grounds by People v. Ray (1970) 14 Cal.3d 20

Third Holding:

Objects may be determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. “Likely” means a high probability of occurring with a great probability of serious injury. Rolls of coins, batteries, and bicycle footrests have been determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. No injury or even physical contact is required to support a conviction of assault with a deadly weapon because the focus is on the use of the weapon in a manner likely to produce great bodily injury.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 533 [the manner of use must by capable of and likely to produce death or great bodily injury – two different concepts]

In re David V. (2010) 48 Cal.4th 23, 30 and fn. 5

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

Fourth Holding:

The use of an object in a manner likely to produce death or great bodily injury requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is not permitted in the analysis. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually used the object.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 534

Fifth Holding:

If injury does occur, such injuries and their location are relevant in determining whether the object was used in a manner likely to produce great bodily injury. Great bodily injury means significant or substantial injury. Insignificant, trivial or moderate injury is not significant or substantial. Our inquiry is limited to whether substantial evidence supports the jury’s finding that the defendant used the open beer can as a deadly weapon, that is, in a manner capable of producing and likely to produce great bodily injury.

On this record, the defendant’s use of the beer can, tossed from six feet away in a slight overhand manner or with a slinging or flicking motion was not likely to cause serious bodily injury or death. The victim did not sustain great bodily injury, significant or substantial injury, or even anything greater than minor or moderate harm. There was little or no objective description of the can or its weight, and it was not introduced into evidence. There was no evidence of sharp or jagged edges on the can, other data points that would have been relevant to determining the likelihood of producing great bodily injury.

Without more details, it is speculation that the open beer can, used as it was, was capable of producing and likely to produce great bodily injury. Perhaps the beer can, if wielded differently, may have been likely to cause great bodily injury, but our inquiry is limited to how the beer can was actually used.

Authority:

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497

People v. Brown (2012) 210 Cal.App.4th 1, 7

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

In re Manuel G. (1997) 16 Cal.4th 805, 822–825

People v. Hahn (1956) 147 Cal.App.2d 308, 309–310 [assault with a deadly weapon occurred when robbery victim driving a car was struck on the head four times with a beer can by passenger sitting behind him]

People v. Beasley (2003) 105 Cal.App.4th 1078, 1087, 1088 [bruises on arms and shoulders, without further injury, not great bodily injury]

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [small scratch on cheek not great bodily injury]

In re D.T. (2015) 237 Cal.App.4th 693, 696–697 [sharp pocketknife poked into the victim’s back likely to produce great bodily injury]

People v. Page (2004) 123 Cal.App.4th 1466, 1469, 1474 [sharp pencil held to the victim’s neck likely to produce great bodily injury]

People v. Duke (1985) 174 Cal.App.3d 296, 303