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Case Summaries

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AppellateAdvisor Updates, Duty of the court, Probation Parole PRCS, Sentencing

Case 000762

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously denied the defendant’s motion to dismiss his conviction under section 1203.4 following his fulfillment of conditions of probation. The trial court concluded that the defendant was not eligible for relief as long as he had to register as a sex offender. The trial court denied the defendant’s petition for an erroneous reason without determining whether he fulfilled the conditions of probation for the entire probation period. Therefore, the order denying the petition is reversed, and the trial court is directed to make that determination.

First Holding:

When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, the defendant is entitled to have his conviction set aside and the case dismissed.

Authority:

PEN 1203.4(a)(1)

Second Holding:

This statutory provision is clear. If the defendant fulfilled the conditions of probation for the entire period of probation, the trial court shall allow the defendant to withdraw his guilty plea and shall thereupon dismiss the accusations or information. Dismissal in this circumstance is mandatory.

Authority:

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

People v. Tran (2015) 242 Cal.App.4th 877, 892, fn. 6 [under section 1203.4, if the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief]

Third Holding:

A person who has suffered a conviction specified in section 290 is required to register as a sex offender, notwithstanding dismissal of such conviction pursuant to 1203.4. But the duty to register as a sex offender does not make the person ineligible for relief under section 1203.4

Authority:

Doe v. Brown (2009) 177 Cal.App.4th 408, 423

People v. Chatman (2018) 4 Cal.5th 277, 287

People v. Hamdon (2014) 225 Cal.App.4th 1065, 1071, fn. 3 [Section 290.007 expressly precludes relief from the sex offender registration requirement for persons whose convictions are dismissed pursuant to section 1203.4]

People v. Guillen (2013) 218 Cal.App.4th 975, 996 [same]

Fourth Holding:

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 probation period, the court still has discretion to grant relief in the interests of justice.

Authority:

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

Abstracts and Minutes, Amelioration, Appellate Principles

Case 000761

Posted on by Gary McCurdy

Error and/or relief

Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.

First Holding:

The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.

Authority:

People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]

People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]

Second Holding:

Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.

Authority:

PEN 1172.1

Third Holding:

If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.

Authority:

People v. Roy (2025) 110 Cal.App.5th 991, 998

People v. Hodge (2024) 107 Cal.App.5th 985, 996

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

Fourth Holding:

Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]

People v. Magana (2021) 63 Cal.App.5th 1120, 1125

People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]

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

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Amelioration, Discretion, Sentencing

Case 000759

Posted on by Gary McCurdy

Error and/or relief

At the hearing on a petition for resentencing (the opinion does not state under which statute the petition was filed, but in the body of the opinion it mentions section 1172.1, under which various entities can recommend the recall of sentence and resentencing), the trial court denied the defendant’s request to reduce his kidnap for robbery conviction to the lesser included offense of false imprisonment, stating that it did not have discretion to do so. The court erred, as it did have the discretion. We remand for the court to exercise its discretion.

First Holding:

Under section 1172.1(a)(3)(B), the trial court may in the interest of justice vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense then resentence the defendant to a reduced term of imprisonment. Defendant thus asked the trial court at the hearing on his petition to reduce his conviction on count 2 from a kidnap to false imprisonment as the other counts in his sentencing were false imprisonment. The trial court viewed the request as a challenge to the evidence and declined to revisit the evidence.

The court indicated that it did not have the discretion to do anything but impose the sentence on the count of conviction. The court’s comments confirm that it was unaware it had the discretion under section 1172.1, subdivision (a)(3)(B) to reduce defendant’s kidnapping-for-robbery conviction on count 2 to false imprisonment and resentence him to a reduced term for that offense. The trial court thus abused its sentencing discretion.

Authority:

PEN 1172.1(a)(3)(B)

In re White (2020) 9 Cal.5th 455, 470

Second Holding:

When, as here, the trial court is unaware of its sentencing discretion, we must remand for resentencing unless the record clearly indicates that the trial court would have made the same decision if it had been aware of its discretion. The record does not indicate that. If anything, it indicates that the trial court might have imposed a lesser sentence on count 2 if it believed it had the discretion to do so. We therefore remand for a full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Terwilligar (2025) 109 Cal.App.5th 585, 601

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Marcus (2020) 45 Cal.App.5th 201, 214 [Because there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices.]

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

Abstracts and Minutes

Case 000758

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment includes clerical errors which should be corrected to accurately reflect the trial court’s oral pronouncement. First, it reflects imposition of a restitution fine without also indicating that the court stayed the fine. Second, it incorrectly states the sentence imposed by the court.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Courts have the inherent power to correct such clerical errors, either on their own motion or upon the application of the parties.

Authority:

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

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error]