Tag Archives: Appellate process

Appellate Principles, Due process, Sentencing

Case 000235

Posted on by Gary McCurdy

Error and/or relief

Intro blurb here

First Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Jurisdiction

Case: 000229

Posted on by Gary McCurdy

Error and/or relief

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. The People have voiced no opposition. Granted.

First Holding:

Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order. The clerk of the superior court is to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives said request on or before 60 days of the date of this order.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

[GARY NOTE: the second, third, fourth, fifth, and sixth holdings and their authorities are provided by GARY and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.]

Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely. The Attorney General’s concession on behalf of the People is deemed to constitute an agreement that the requested relief ought to be granted without further proceedings

Authority:

In re Benoit (1973) 10 Cal.3d 72, 81–82

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Third Holding:

In felony cases, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

Authority:

Rules of Court, rule 8.308

Fourth Holding:

In misdemeanor cases, the notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Authority:

Rules of Court, rule 8.393

Fifth Holding:

As used in rule 8.304(a)(1) regarding the filing of a notice of appeal in the superior court in a felony case, “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b).

Authority:

Rules of Court, rule 8.304(a)(2)

Sixth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal.

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Appellate Principles, Sentencing

Case: 000223

Posted on by Gary McCurdy

Error and/or relief

Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.

First Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 751

Second Holding:

In contrast to errors in exercising sentencing discretion, the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3

Third 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. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.

Authority:

PEN 654

PEN 954

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Appellate Principles, Sentencing

Case: 000204

Posted on by Gary McCurdy

Error and/or relief

The 25 years to life sentences on three counts violate constitutional prohibitions on ex post facto laws because the offenses occurred prior to the effective date of the statute under which they were imposed. The trial record does not establish beyond a reasonable doubt that the offenses in the three counts occurred after the effective date of the statutory amendment increasing the penalty for the offenses.

First Holding:

The federal and state constitutions proscribe ex post facto laws. Both constitutions prohibit legislatures from retroactively increasing the punishment for a crime. The federal and state ex post facto laws are interpreted the same way.

Authority:

U.S. Const., art. I, sec. 10

Cal. Const., art. I, sec. 9

Collins v. Youngblood (1990) 497 U.S. 37, 42–43

People v. Grant (1999) 20 Cal.4th 150, 158

People v. Snook (1997) 16 Cal.4th 1210, 1220

Second Holding:

Ex post facto principles have been applied to the One Strike law and its amendments. Where the ex post facto clauses apply, it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

Authority:

People v. Canales (2024) 106 Cal.App.5th 1230, 1259–1260

People v. Hiscox (2006) 136 Cal.App.4th 253, 256–262

People v. Riskin (2006) 143 Cal.App.4th 234, 244–245

Third Holding:

An unauthorized sentence may also be corrected on appeal despite the absence of an objection below. A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case.

Authority:

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

Fourth Holding:

When part of a sentence is stricken on review, a remand and full resentencing is generally appropriate so the trial court can exercise its sentencing discretion following the changed circumstances. However, when the trial court imposes the maximum possible sentence, there is no need to remand the matter for resentencing. Where there are no sentencing choices to restructure, it is appropriate to modify the sentence on appeal.

Authority:

PEN 1260

People v. Buycks (2018) 5 Cal.5th 857, 893, 896 fn 15

People v. Lopez (2019) 42 Cal.App.5th 337, 342

People v. Francis (2017) 16 Cal.App.5th 876, 887

Fifth Holding:

The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61(c). The only crime for which the defendant was convicted is identified in section 667.61(c)(8) and therefore, defendant’s convictions do not implicate the mandatory sentencing provision in section 667.61(i). By implication, section 667.61(i) leaves the decision to impose consecutive or concurrent terms on the nonspecified offenses to the sentencing court’s discretion under section 669.

Authority:

PEN 667.61(i)

People v. Lopez (2022) 76 Cal.App.5th 287, 291

People v. Valdez (2011) 193 Cal.App.4th 1515, 1524

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000200

Posted on by Gary McCurdy

Error and/or relief

The defendant’s sentence on two firearm enhancements and one possession of an explosive device should have been imposed and stayed pursuant to Penal Code section 654. We modify the judgment accordingly.

First Holding:

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.

Authority:

PEN 654

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. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

Authority:

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

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses.

Authority:

People v. Islas (2012) 210 Cal.App.4th 116, 129

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fourth Holding:

The sentences on each of three counts were based on his simultaneous possession of two completed assault rifles, and we assume that such possession can constitute two physical acts for the purposes of section 654. Even so, multiple punishment can be imposed consistent with section 654—on two of the three counts —only if substantial evidence in the record supports an implied finding that he had a separate objective in possessing one firearm versus the other. Our review of the record reveals no such evidence. Section 654 also prohibits multiple punishment for both possession of an explosive device and possession of ingredients to make an explosive device, because the explosives the defendant possessed were not actually capable of exploding, and thus identical evidence supported both counts. Both counts were based on the defendant’s possession of the ingredients in the box truck, at the same time and place, and under the same circumstances. Both counts were based on, essentially, the same course of conduct.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 358 [suggesting simultaneous possession of different items of contraband’ are separate acts for purposes of section 654]

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fifth Holding:

Because it is apparent from the sentence imposed that the sentence would be little changed as a result of remand, in the interests of judicial economy, and given that the parties agree on this remedy, we will modify the judgment to stay the sentences on counts 5 and 6 rather than remand for resentencing.

Authority:

PEN 1260 [authority to modify unauthorized sentence]

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of the penalty imposed is the preferred remedy for section 654 error where the reduction in sentence would be relatively minor because in such cases, it would not serve the interests of justice or judicial economy to require remand]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority to modify judgment to impose and stay sentence under section 654 rather than remand for resentencing that will not change defendant’s actual prison time]

Appellate Principles, Sentencing

Case: 000169

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed a consecutive term of eight months for taking a police vehicle without consent rather than the correct four-month sentence for attempted taking, the crime specified by the complaint. The appropriate term for an attempt is half the sentence for the completed crime, in this case, four months. Accordingly, we will modify the sentence imposed for attempted theft to a term of four months and otherwise affirm the judgment.

First Holding:

In setting the sentence the court imposed a consecutive term of eight months for count 8, a violation of Vehicle Code section 10851. The allegation of count eight of the complaint stated that the defendant attempted to take a vehicle without consent. It does not refer to section 664(a), which specifies that the sentence for an attempt is one-half the term of imprisonment prescribed upon a conviction of the offense attempted. The charging document, however, need not cite the statute to allege an attempt.

Authority:

PEN 952

PEN 664(a)

People v. Hawley (1930) 106 Cal.App. 216, 218 [in charging an attempt to commit theft (even in the absence of direct statutory authorization therefor), it should be sufficient to allege that the defendant unlawfully attempted to commit the same offense]

People v. Heim (1961) 196 Cal.App.2d 1, 4 [defendant was on notice of the charge against him where charging documents specifically referred to attempted burglary]

Second Holding:

An appellate court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

PEN 1260

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

PEN 1170b)(1)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

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 Chapman. Such errors are prejudicial unless an appellate court can 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. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Appellate Principles, Sentencing, Standard of review

Case: 000156

Posted on by Gary McCurdy

Error and/or relief

On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.

First Holding:

At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

Second Holding:

Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.

We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58

Third Holding:

We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033

People v. Burke (2023) 89 Cal.App.5th 237, 242

Fourth Holding:

Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]

Fifth Holding:

On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Appellate Principles, Fines and fees

Case: 000151

Posted on by Gary McCurdy

Error and/or relief

Though the court affirmed the other orders of the trial court regarding the resentencing conducted under Penal Code section 1172.75, the restitution fine, ordered more than 10 years earlier, must be stricken.

First Holding:

As a result of amendments effective January 1, 2025, the restitution fine must be stricken, because it has been more than 10 years since it was originally imposed. Penal Code section 1465.9 provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Not only is the unpaid portion now uncollectible, the court must vacate the portion of the judgment imposing it.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953

Second Holding:

Though the People argue that the 10 years has not passed, because he was resentenced only a few years ago, the People do not identify any legal authority or develop any substantive reasoning supporting the proposition that a component of a defendant’s punishment starts over at resentencing. We therefore need not consider that argument.

However, the plain language of the statute does not support their interpretation and the result they advocate for is in tension with clearly expressed legislative intent to eliminate fees and fines that deepen the poverty cycle for offenders without meeting the financial needs of crime survivors. We find the People’s position untethered from the plain language of the statute and the underlying legislative intent, and in advancing the proposition that the restitution fine was “reimposed” at the resentencing hearing such that the clock affording defendant ameliorative relief from a component of his punishment restarted, they fail to elucidate the point or acknowledge any of the issues such an interpretation necessarily implicates. Therefore, we give effect to the plain language of section 1465.9(d) providing that any portion of a judgment imposing a restitution fine under section 1202.4 shall be vacated 10 years after imposition.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [If a party’s briefs do not provide legal argument and citation to authority on each point raised, the court may treat it as waived, and pass it without consideration.]

Sentencing, Sixth Amendment

Case: 000150

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining the defendant’s personal waiver of his right to a jury trial on the aggravating circumstance allegations and the prior strike allegation. The People concede, and we agree. The error was prejudicial only as to the aggravating circumstances, not as to the prior strike. The record does not reflect that the defendant had ever waived jury trial on either the prior strike or aggravating factors.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of this right must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

Cal. Const., art. I, sec. 16

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

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

Second Holding:

Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. 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, reversal and remand are required 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

We accept the People’s concession that a rational jury could have reached a different conclusion with respect to the defendant’s prior performance on probation. The probation report noted that he had satisfactorily completed two prior grants of probation, although he failed on two other grants. The report listed his past successes on probation as a mitigating factor and his failures as an aggravating factor. This mixed view of performance on probation is what leads us to conclude that a rational jury could have disagreed with the trial court’s finding that his prior performance on probation was unsatisfactory. Therefore, the error here with respect to this allegation was prejudicial under Chapman

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

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

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

Third Holding:

The right to have the jury decide the truth of a prior conviction allegation stems from section 1025(b), not from the jury trial provision of article I, section 16 of the California Constitution or the Sixth Amendment of the United States Constitution. Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffective waiver of the right to jury trial of prior prison term allegations. Here, by failing to object, the defendant forfeited any claim that the trial court improperly denied him his right to a jury trial by failing to take his express waiver of that right.

Authority:

PEN 1025

People v. Vera (1997) 15 Cal.4th 269, 277

People v. Grimes (2016) 1 Cal.5th 698, 737–738 [defendant forfeited a claim of involuntary waiver of jury trial on prior conviction allegations based on failure to object in the trial court]

Fourth Holding:

But even assuming an error with respect to his right to a jury trial on the prior strike allegation, the error is subject to the harmless error analysis under the Watson standard. The question under this standard is whether it is reasonably probable that a different result would have obtained had the prior strike allegation been tried before a jury. There is no such probability here.

To prove the prior strike conviction, the People produced as evidence his certified RAP sheet, a certified printout of the docket showing his conviction for that offense, the complaint associated with that prior, the waiver of rights and plea form, and the probation terms related to that conviction. For his part, the defendant never claimed he did not commit the offense, and he presented no evidence regarding this allegation. There is no reasonable probability the jury would have failed to find the allegation true under the evidence presented. Accordingly, we reject his claim that the trial court’s true finding on the prior strike allegation must be vacated.

Authority:

People v. Epps (2001) 25 Cal.4th 19, 29

Appellate Principles, Fines and fees, Sentencing

Case: 000148

Posted on by Gary McCurdy

Error and/or relief

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:

In every case where a person is convicted of a crime, 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. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).

Authority:

PEN 1202.4(b)(1)

Second Holding:

[GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.]

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Abstracts and Minutes, Jurisdiction, Sentencing

Case: 000147

Posted on by Gary McCurdy

Error and/or relief

The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.

The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.

First Holding:

Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries.

In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge.

Authority:

In re Candelario (1970) 3 Cal.3d 702

Second Holding:

The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony.

Authority:

In re Candelario (1970) 3 Cal.3d 702

People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]

People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]

People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]

People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true]

Third Holding:

Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Howard (1997) 16 Cal.4th 1081, 1089

Fourth Holding:

The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction.

Authority:

People v. Farias (2023) 92 Cal.App.5th 619, 635-636

People v. Codinha (2023) 92 Cal.App.5th 976, 1120 [holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]

People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]

People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]

People v. Singleton (2025) 113 Cal.App.5th 783, 797