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Abstracts and Minutes, Sentencing

Case 001136

Posted on by Gary McCurdy

Error and/or relief

The clerk incorrectly listed the indeterminate sentence information and the determinate sentence information on a single abstract of judgment that was designed for indeterminate sentences. The clerk is directed to prepare an abstract of judgment for the indeterminate sentence on the correct form for indeterminate sentences and a separate abstract of judgment on the correct for for determinate sentences.

Holding:

The trial court incorrectly recorded both the determinate and indeterminate portions of appellant’s sentence in a single abstract of judgment. The trial court is directed to prepare amended abstracts of judgment that record the determinate sentences on Judicial Council form CR-290 and the indeterminate sentences on Judicial Council form CR-292. The trial court shall then forward the amended abstracts of judgment to the appropriate entities.

Authority:

Judicial Council form CR-292 (for indeterminate sentences)

Judicial Council form CR-290 (for determinate sentences

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.

Appellate Principles, Jury trial

Case 001134

Posted on by Gary McCurdy

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Due process, Elements of crime, Pleading, Sentencing

Case 001133

Posted on by Gary McCurdy

Error and/or relief

The gang conspiracy convictions are unsupported by substantial evidence that defendants committed the target offense charged, i.e., a violation of section 26100(c). We therefore modify the verdicts on count 5 to reflect convictions for gang conspiracy based on a lesser included target felony violation of section 26100(d). Resentencing is required on this count and vacate the sentences.

The sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22(b)(4) was neither pled nor proved. Additionally, imposition of both the gang enhancement and firearm enhancement on this count violates the dual use prohibition set forth in section 12022.53(e)(2).

We remand for resentencing.

(Gary note: This was a multiple-defendant case with an extremely long opinion. There were many issues, most of which resulted in a finding of no error, and I have not attempted to list them all.)

First Holding:

The information charged defendants in count 5 with gang conspiracy for promoting, furthering, assisting, or benefitting from felonious criminal conduct, specifically Penal Code section 26100(c). Section 26100(c) is violated by the willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle.

Authority:

PEN 26100(c)

Second Holding:

In this case there was no evidence that a firearm was discharged at anyone other than an occupant of a motor vehicle. Under sections 1181 and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

In a conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime included in the alleged target offense.

Authority:

PEN 1181

PEN 1260

People v. Navarro (2007) 40 Cal.4th 668, 671

People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [the trial court has a sua sponte obligation to instruct on lesser included target offenses if there is evidence from which the jury could find a conspiracy to commit a lesser offense]

Third Holding:

It is well settled that a section 182.5 conspiracy (i.e., conspiracy in connection with participation in a criminal street gang) relates only to the commission of a felony. Thus, a gang conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.

A violation of section 26100(d) [discharging a firearm from a motor vehicle] is a wobbler, meaning it is chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor. An attempted or completed felony violation of section 26100(d) may appropriately serve as the target offense for a gang conspiracy conviction.

In light of the insufficient evidence of a violation under subdivision (c), we will modify the verdicts on count 5 to reflect the gang conspiracy convictions are predicated upon a felonious violation of section 26100(d).

Authority:

PEN 26100(d)

People v. Johnson (2013) 57 Cal.4th 250, 262

People v. Park (2013) 56 Cal.4th 782, 789

Fourth Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. However, a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.

When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

An offense is necessarily included within another if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.

Authority:

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

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Sanchez (2001) 24 Cal.4th 983, 987 [a defendant cannot be convicted of both a greater offense and a necessarily included offense based on the commission of the same act]

People v. Robinson (2016) 63 Cal.4th 200, 207

Fifth Holding:

The elements of the crimes of active participation in a gang (section 186.22) and gang conspiracy (section 182.5) are nearly identical.

However, whereas active participation may be committed by any of the alternative means of promoting, furthering, or assisting in felonious conduct by gang members, gang conspiracy may be committed by any of the alternative means of promoting, furthering, assisting, or benefitting from the felonious conduct of gang members.

Although all the elements of the active participation offense are also included in the gang conspiracy offense, it is possible to commit gang conspiracy without committing the active participation offense if the defendant merely benefits from the felonious criminal conduct of fellow gang members.

Thus, because gang conspiracy may be committed without necessarily committing the offense of active participation in a criminal street gang, active participation is not a necessarily included lesser offense.

Authority:

PEN 186.22

PEN 182.5

People v. Robinson (2016) 63 Cal.4th 200, 207

People v. Hinojos (2025) 111 Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that section 654 did not bar imposition of the gang enhancement on the defendant’s gang conspiracy convictions]

Sixth Holding:

The court erred in sentencing defendants pursuant to section 186.22(b)(4) because this alternate penalty provision was not alleged in the information. Section 186.22(b)(4) is an alternate penalty provision prescribing indeterminate terms of life imprisonment for those who committed certain enumerated felonies under the same gang-related circumstances described elsewhere in section 186.22. If the elements are present, the sentence will be an indeterminate term of life, with a specified minimum term.

A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. As a matter of due process, an alternative punishment provision must be pleaded and proved.

The failure to plead an alternate penalty provision deprives the defendant of fair notice of his or her sentencing exposure by failing to inform him or her that an alternate sentence carrying a higher term will be pursued.

Additionally, a defendant is deprived of adequate notice if punishment is imposed under one provision, and an enhancement was alleged under a different, mutually exclusive provision, even if facts supporting the alternate allegation are contained in the information.

Even if the statute alleged in the information cross-references the statute under which an alternate penalty is pursued, the information fails to inform the defendant that the prosecution will seek to impose the more stringent sentence; therefore, imposition of the higher alternate sentence would violate due process.

Authority:

People v. Lopez (2022) 12 Cal.5th 957, 970

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899–900, and fn. 6

In re Vaquera (2024) 15 Cal.5th 706, 717, 723, 724 [information alleging One Strike allegation pursuant to sec. 667.61(b)/(e)(4) for an offense against more than one victim was inadequate to provide the defendant notice the prosecution might seek a One Strike sentence pursuant to sec. 667.61(j)(2) for an offense against a child under 14 years of age, even though the facts supporting the allegation were contained in the information].

People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under sec. 186.22(b) did not give the defendant adequate notice that an alternate sentence under subd. (d) might apply]

Seventh Holding:

The matter must be remanded for full resentencing.

Authority:

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

People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing hearing as to all counts in light of an unauthorized enhancement]

People v. Delgado (2010) 181 Cal.App.4th 839, 855 [It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence]

People v. Lopez (2022) 12 Cal.5th 957, 975–976 [remanding for resentencing after finding the alternate penalty provision set forth in sec. 186.22(b)(4) to be inapplicable]

Eighth Holding:

In a case in which it is proper to invoke section 186.22(b)(4), the court cannot both invoke that alternative sentencing scheme and impose the firearm enhancement under section 12022.53(e) on a principal who did not personally use the firearm. Only one of these enhancements may be imposed.

Section 186.22(b)(4) permits an indeterminate life sentence for criminal gang activity if certain conditions are present. Section 12022.53(e)(1) extends liability for the firearm use of another to a principal who did not personally use or discharge the weapon, but who violated subdivision (b) of section 186.22.

Section 12022.53(e)(1) creates an exception to the personal use requirement of section 12022.53(b) through (d) in a prosecution where findings have been made pursuant to section 186.22. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances.

However, as a consequence of this expanded liability under section 12022.53(e), the Legislature has expressly determined in section 12022.53(e)(2) to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.

Authority:

PEN 186.22(d)

PEN 12022.53(e)(2)

People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282

People v. Brookfield (2009) 47 Cal.4th 583, 593, 595-596 [In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53(j), choose the provision that will result in a greater sentence.]

Ninth Holding:

The availability of increased punishment is a matter of pleading and proof. The information alleged only that a principal personally discharged and used a firearm. Moreover, the prosecution did not request that the jury be instructed regarding personal firearm use or discharge or the firearm enhancement, and the verdict did not call for a jury finding on this point. There was therefore no finding that the defendant personally used or discharged a firearm in the commission of the crime. As a matter of law, the special circumstance finding in a different count applies only to that count and does not provide a finding sufficient to overcome the bar against dual use of the gang finding set forth in section 12022.53(e)(2).

Authority:

PEN 12022.53(j) [For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ….]

People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [Whether a defendant used a firearm in the commission of an enumerated sex offense is for the trier of fact to decide.]

Immigration, Standard of review

Case 001132

Posted on by Gary McCurdy

Error and/or relief

In light of Hernandez, decided after the lower court’s denial of the defendant’s motion to vacate her conviction under section 1473.7, the order denying the defendant’s section 1473.7(a)(1) motion is reversed. The matter is remanded to the trial court with directions to allow the parties to present additional evidence and to rehear the motion in light of that additional evidence, Hernandez, and other applicable law at the time of rehearing.

First Holding:

Under federal immigration law, grand theft auto is a crime of moral turpitude. A noncitizen without lawful status who is convicted of a crime of moral turpitude is ineligible for admission to the United States as well as cancellation of removal.

Authority:

People v. Curiel (2023) 92 Cal.App.5th 1160, 1173

U.S. v. Esparza-Ponce (9th Cir. 1999) 193 F.3d 1133, 1136-1137

Second Holding:

To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice

Error may take the form of the defendant’s lack of a meaningful understanding of the actual or potential adverse immigration consequences of their plea; the defendant’s subjective misunderstanding or ignorance that damaged their ability to defend against these consequences; or the defendant’s failure to knowingly accept these consequences.

A defendant establishes prejudice by showing that there is a reasonable probability that they would not have entered the plea if they had correctly understood its actual or potential immigration consequences and their options for defending against those consequences.

Authority:

PEN 1473.7

People v. Hernandez (2026) 20 Cal.5th 598, 613, 621 fn. 4, 626

Third Holding:

Because the burden is on the defendant to establish error and because courts must consider the totality of the circumstances in determining whether the defendant has satisfied this burden, it will generally be in a defendant’s interest to create a robust record. However, no specific kind of evidence is a prerequisite to relief.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 618

People v. Espinoza (2023) 14 Cal.5th 311,] 325 [The more robust and inclusive a record, the greater the opportunity for effective persuasion and meaningful judicial review]

Fourth Holding:

In reviewing a trial court’s denial of a section 1473.7(a)(1) motion, we independently review the evidence in the record. We do not defer to those findings by the trial court that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And we may reach a different conclusion from the trial court on an independent examination of the evidence, even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging the defendant’s ability to meaningfully understand the immigration consequences of the charges to which the defendant pled, or the defendant’s ability to defend against those consequences or to knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Fifth Holding:

Hernandez laid out several principles to guide trial courts in their conclusion whether a defendant has established error.

(Gary note: The opinion lays out several passages from Hernandez, describing approaches a defendant might take. Rather than reproducing the nearly thousand words quoted from Hernandez, I have decided to simply suggest you read Hernandez itself. But while every word is certainly important, I have chosen to include a bit on the recognition that the focus is on the defendant’s subjective understanding. This is a tad different from tests that compare a defendant’s actions to the amorphous objective “reasonable person” standard. However, the subjective understanding must be corroborated by objective evidence.)

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry. While the focus of the error inquiry is on the defendant’s subjective understanding, a defendant’s bare assertion that they did not understand the immigration consequences or the options available to them to defend against those consequences is insufficient to establish error; the assertion must be corroborated by objective evidence.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 615, 621, fn. 4 [The error determination turns on the defendant’s state of mind as established by the defendant’s testimony about their subjective understanding and corroborated by objective evidence.]

Sixth Holding:

Section 1260, by its terms, confers authority on appellate courts to remand the cause to the trial court for such further proceedings as may be just under the circumstances. It is familiar appellate practice to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken.

Hernandez stated that remand to the trial court for further development of the record will be appropriate in many appeals from denials of section 1473.7(a)(1) motions that were pending when the Supreme Court issued its decision. We conclude this is one of those appeals.

Authority:

PEN 1260

CCP 906

People v. Wilson (2024) 16 Cal.5th 874, 948

Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 931