Tag Archives: Appellate process

Appellate Principles, Juveniles, Sufficiency of and substantial evidence

Case 001068

Posted on by Gary McCurdy

Error and/or relief:

The evidence was insufficient to support a finding that the minor was the driver of the vehicle.

(Gary note: This is typical of fact-driven results, where facts unique to a case in an unpublished opinion, but I think it’s valuable to note that the court viewed the available video footage itself to conclude that the minor was actually in the back seat of the vehicle at the time of the accident, and at the very least, the evidence was insufficient even under the deferential standards to support a finding beyond a reasonable doubt.

(In this case, getting the exhibits to the appellate court for viewing clinched the win for the minor. Without that, the appellate court would have had to rely on the law enforcement testimony, and it likely would have found that, from its role as an appellate court (i.e., not a determiner of the facts, which is the role of the trial court), the juvenile court jurisdiction would have to be sustained (i.e., in “adult court” terms, the conviction would have to be affirmed).

First Holding:

To evaluate the minor’s claim that the evidence was insufficient, we review the record for substantial evidence to support the juvenile court’s jurisdictional findings—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the minor committed the crimes.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

In re Z.A. (2012) 207 Cal.App.4th 1401, 1424

In re George T. (2004) 33 Cal.4th 620, 631

Second Holding:

In determining whether findings are supported by substantial evidence, we resolve neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

(Gary note: As I indicated above, the trial court examined the dashcam recording and determined that it was impossible for the minor to have been driving the vehicle at the time of the accident, despite the testimony of two law enforcement officers who had reached a different conclusion from their own review of the video. The balance of the opinion pertains to the appellate court’s observations of the scenes depicted in the video and offers no additional legal information pertinent to these summaries. The court simply found the evidence insufficient to support a finding beyond a reasonable doubt that the minor was the driver.)

Authority:

People v. Demolle (2026) 19 Cal.5th 1117, 1176

Appellate Principles, Sentencing

Case 001060

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of conduct credit.

Holding:

The trial court awarded 4 days of conduct credit, under the 15% limit set by section 2933.1 for defendants convicted of a violent felony within the meaning of section 667.5(c). However, 15% of the actual days in custody results in 5.85. Thus, the defendant should have received 5 days as conduct credit, not 4 days.

Authority:

PEN 2933.1

PEN 667.5(c)

People v. Guillen (1994) 25 Cal.App.4th 756, 764 [erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented]

Appellate Principles, Elements of crime, Sentencing

Case 001059

Posted on by Gary McCurdy

Error and/or relief

The sentence for the defendant’s conviction for unlawful possession of ammunition should be stayed because it arises from the same, indivisible act underlying his conviction for possession of a firearm by a felon.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Second Holding:

Because a stay of the defendant’s 16-month sentence on count three results in a relatively minor reduction in his total sentence [essentially, 67.333 years to life], we will modify the judgment instead of remanding the case for further proceedings.

Authority:

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [Staying execution of the penalty imposed for the lesser offense remains the preferred remedy where the reduction in sentence would be relatively minor]

Appellate Principles, Elements of crime, Sentencing

Case 001058

Posted on by Gary McCurdy

Error and/or relief

Among many other offenses committed during related incidents over a period of time, the defendant was convicted of two counts of being in possession of an assault weapon and two counts of being a felon in possession of a firearm. We reverse one of each of those counts.

First Holding:

Possession of a firearm by a felon is a continuing offense. The concept of a continuing offense is well established. Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.

Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. The crime achieves no finality until such time.

In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. As the evidence does not support any conclusion but continuing possession, one of the defendant’s convictions for being a felon in possession of a firearm must be reversed and one of his convictions for possession of an assault weapon must be reversed.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

It is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate error that justifies reversal of the judgment. To demonstrate error, appellant must present meaningful legal analysis that supports the claim of error. We are not required to examine undeveloped claims or to supply arguments for the litigants.

Authority:

Jameson v. Desta (2018) 5 Cal.5th 594, 608-609

In re S.C. (2006) 138 Cal.App.4th 396, 408

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis]

Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52

Third Holding:

Cases are not authority for points not considered.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 945, fn. 7

Fourth Holding:

Reversal of the two counts means that the defendant must be resentenced. 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.

Authority:

People v. Jones (2022) 79 Cal.App.5th 37, 45-46

Fifth Holding:

One of the defendant’s arguments on a different count is forfeited because it was not raised in the trial court. The parties did not address forfeiture in their appellate briefing, but they had the opportunity to address it, a rule always implicated when an argument is raised for the first time on appeal.

Authority:

People v. Alice (2007) 41 Cal.4th 668, 679 [The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of Government Code section 68081.]

People v. Graham (2024) 102 Cal.App.5th 787, 798, fn. 6.

Sixth Holding:

A failure to object to a jury instruction does not forfeit the issue on appeal if the alleged error concerns elements of the offense, but the forfeited argument here is at least one step removed from an argument about the elements of the crime in question. And the general rule is that an argument not raised in the trial court is forfeited on appeal, including constitutional arguments.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [ruling that an argument under Apprendi v. New Jersey (2000) 530 U.S. 466 was forfeited because it was not raised in the trial court]

Appellate Principles, Duty of the court, Plea bargains

Case 001057

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to dismiss defendant’s misdemeanor conviction as contemplated by the parties’ plea agreement and affirm the judgment as modified.

Holding:

The terms of the parties’ plea agreement required the trial court to dismiss the misdemeanor count for carrying a dirk or dagger (count 2) because defendant failed to successfully complete probation, leaving the felony count remaining. While the trial court sentenced defendant to two years on the felony count, it did not address the misdemeanor count. In accordance with the parties’ plea agreement, we shall dismiss defendant’s misdemeanor conviction for carrying a dirk or dagger.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930-931 [a plea agreement is a contract that is binding upon the parties and the court]

Appellate Principles, Fifth Amendment, Jury trial, Sixth Amendment

Case 001055

Posted on by Gary McCurdy

Error and/or relief

The trial court’s failure to ensure that all 12 jurors were present together in court when the verdict was rendered violated the defendant’s statutory and constitutional right to a unanimous 12-person verdict and resulted in the recording of an invalid verdict.

(Gary note: During deliberations, the jury reached a unanimous verdict on some counts and the foreman signed the verdicts while the jury continued to deliberate on remaining counts. At some point the foreman was allowed to go on vacation, and an alternate juror took his place.

(When the final verdicts were read in open court, the jury was polled and all 12 confirmed the verdict. The problem is that the foreman who signed the jury verdict forms had been replaced, so only 11 of the jurors who voted on those verdicts were present in open court and were polled.)

First Holding:

The right to a trial by jury is a fundamental constitutional right guaranteed to a criminal defendant by both the state and federal constitutions. An essential aspect of that right is the right to a unanimous jury verdict. In California, a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.

Authority:

U.S. Const., 6th and 14th Amends.

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

People v. Collins (2001) 26 Cal.4th 297, 304

Ramos v. Louisiana (2020) 590 U.S. 83, 92-93

People v. Collins (1976) 17 Cal.3d 687, 693, superseded by statute on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19

Second Holding:

To safeguard the right to a unanimous jury verdict, the Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict. Section 1147 requires all 12 jurors to be present when the trial court receives the verdict.

It provides that when the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.

Section 1149 requires that upon the jury appearing in court, the court, or clerk, must ask the jurors whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Authority:

PEN 1147

PEN 1149

People v. Carbajal (2013) 56 Cal.4th 521, 530

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Third Holding:

Sections 1163 and 1164 govern jury affirmation of the verdict by polling and the recording of the verdict.

Under section 1163, once the verdict has been rendered, either party may ask the court to poll the jurors individually before the verdict is recorded. Upon such a request, each juror must be asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Under section 1164, the jurors may also be polled, upon request, after the clerk has recorded the verdict. If any juror disagrees with the verdict at that point, the jury will again be sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case.

A verdict is complete when it has been rendered in compliance with these provisions, i.e., once it has been received and read by the clerk, acknowledged by the jury, and recorded.

Authority:

PEN 1163

PEN 1164

People v. Hendricks (1987) 43 Cal.3d 584, 597

People v. Bento (1998) 65 Cal.App.4th 179, 188

People v. Garcia (2012) 204 Cal.App.4th 542, 551

Fourth Holding:

Acknowledgement of the verdict in open court by all 12 members of the jury is not a mere procedural formality. It is essential to the validity of the verdict. If the jury returns a written verdict but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. It is the oral declaration of the jurors, not the submission of the written verdict forms, that constitutes the return of the verdict. In other words, there is no verdict absent unanimity in the oral declaration.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500-502, 506 (conc. opn.)

People v. Thornton (1984) 155 Cal.App.3d 845, 858-860

People v. Garcia (2012) 204 Cal.App.4th 542, 549-550

People v. Green (1995) 31 Cal.App.4th 1001, 1009

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Fifth Holding:

It follows from these authorities that a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury. This right requires that all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by any party, declared orally by each of the 12 jurors. In the absence of such a declaration, there is no verdict.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Bailey (2018) 27 Cal.App.5th 376, 387 [The right to a jury trial includes the right to a unanimous 12-person verdict, orally affirmed by each individual juror. In the absence of an express waiver by the defendant, an 11-person verdict violates that right—regardless of the reason it occurs.]

Sixth Holding:

When the jury rendered their verdict only 11 of the 12 jurors who deliberated together to reach the verdicts on the defendant’s charges were present in court to orally declare the verdicts. The initial foreperson who signed all of the defendant’s verdict forms had been excused due to a pre-planned vacation.

Because it is the oral declaration of the jurors, and not the submission of the written verdict forms that constitutes the return of the verdict, the defendant’s statutory and constitutional right to a unanimous verdict rendered by all 12 members of the jury was violated. Absent the express consent of the defendant, a valid verdict cannot be rendered by only 11 jurors.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Garcia (2012) 204 Cal.App.4th 542, 550

Seventh Holding:

Only 11 of the jurors who deliberated together to reach the verdicts on the defedant’s charges were present to render the verdict. The alternate juror who replaced the initial foreperson may have agreed with the verdicts on the defendant’s charges, but that juror did not participate in those deliberations, and his or her affirmation of the defendant’s verdicts was not sufficient to satisfy the 12-person requirement.

It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. A defendant may only be convicted by the 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity. It is those 12 jurors who must appear together in court when the verdict is rendered, and upon request, individually affirm the verdict.

Authority:

People v. Collins (1976) 17 Cal.3d 687, 693

Eighth Holding:

When the verdict has been read and recorded in the presence of all 12 jurors, minor procedural errors and technical violations of the statutory requirements for receiving the jury verdicts” are subject to harmless error analysis.

However, when only 11 members of the jury are present to render the verdict, the error is considered structural, and reversal is required.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 556-558, 560

People v. Traugott (2010) 184 Cal.App.4th 492, 505 [the denial of a 12-person jury rendering a unanimous verdict is clearly structural and, as such, reversible per se]

Borns v. Butts (1979) 98 Cal.App.3d 208, 210 [prejudice is inherent in the entry of an invalid verdict and judgment], overruled on other grounds in Juarez v. Superior Court (1982) 31 Cal.3d 759, 768-769.

Ninth Holding:

Both the state and federal constitutions prohibit placing a person in jeopardy more than once for the same offense. Unless sound reason exists, California courts will not interpret the California double jeopardy clause more broadly than its federal counterpart.

Authority:

U.S. Const., 5th Amend. [no person shall be subject for the same offense to be twice put in jeopardy of life or limb]

Cal. Const. art. I, sec. 15 [Persons may not twice be put in jeopardy for the same offense]

People v. Eroshevich (2014) 60 Cal.4th 583, 588

People v. Wilson (2023) 14 Cal.5th 839, 852

Tenth Holding:

The legal standards governing double jeopardy are well established. At its core, the double jeopardy clause protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 588

Green v. United States (1957) 355 U.S. 184, 187

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Eleventh Holding:

Once jeopardy has attached, the question of whether double jeopardy principles bar a second trial depends on how the first trial ended. An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. Similarly, when the jury is discharged without having issued a verdict, courts will treat that circumstance as equivalent in law to an acquittal and retrial will be barred unless the defendant consented to the discharge or legal necessity required it.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Twelfth Holding:

The rules differ when the trial ends in a conviction. As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.

We therefore apply the general rule that when the defendant secures a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Hernandez (2003) 30 Cal.4th 1, 6

United States v. DiFrancesco (1980) 449 U.S. 117, 131

People v. Wilson (2023) 14 Cal.5th 839, 852-853

Lockhart v. Nelson (1988) 488 U.S. 33, 38

In re Hess (1955) 45 Cal.2d 171, 176 [by failing to object to the entry of judgment on the defective verdict and by collaterally attacking the judgment petitioner has impliedly waived any objection to being retried on the charge of which he was improperly convicted]

Discretion, Duty of the court, Sentencing, Standard of review

Case 001053

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.

First Holding:

Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged. The trial court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Second Holding:

A defendant is suitable for diversion if:

(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment;

(2) the defendant agrees to waive their speedy trial rights;

(3) the defendant agrees to comply with treatment requirements; and

(4) the defendant will not pose an unreasonable risk of danger to public safety as defined.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Third Holding:

But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.

Authority:

People v. Flareau (2026) 118 Cal.App.5th 681, 689

Fourth Holding:

When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.

(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.

(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”

(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”

(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Fifth Holding:

The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment

In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.

Authority:

People v. Calabar (2025) 117 Cal.App.5th 41, 58

Sixth Holding:

We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Seventh Holding:

When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892

People v. Moine (2021) 62 Cal.App.5th 440, 452

People v. Frahs (2020) 9 Cal.5th 618, 640-641

People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

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

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

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

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

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

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

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

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review

Case 001050

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed fines and ancillary costs without considering the defendant’s ability to pay. The ancillary fees imposed on the defendant are vacated, and this matter is remanded to the trial court with instructions to consider whether the defendant has the ability to pay the court operations assessment and the court facilities assessment imposed in his sentence.

First Holding:

We review the imposition of fines and assessments for abuse of discretion.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1043

Second Holding:

The respondent argues that the defendant forfeited the issue regarding his ability to pay because defense counsel did not object to the fines or assessments imposed. The defendant states that he personally objected that he was unable to pay, preserving the issue for appeal, or his counsel rendered ineffective assistance of counsel for failing to object.

In light of the ineffective assistance of counsel claim, we exercise our discretion to reach the merits of the defendant’s challenge.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

Third Holding:

Kopp divided court-ordered payments into three categories: fines, ancillary costs, and victim restitution.

Addressing fines, Kopp held that fines (including restitution fines under section 1202.4) are punitive in nature, that fines should be analyzed under the excessive fines clauses in the United States and California Constitutions, and that courts need not hold a hearing on a defendant’s ability to pay before imposing all fines.

By contrast, Kopp continued, ancillary costs (including court facilities fees under Government Code section 70373 and court operations fees under section 1465.8) are not punitive in nature, and equal protection principles require a rational basis for treating ancillary fees for indigent criminal defendants differently than indigent civil litigants. Finding no such basis, Kopp concluded that, when requested, trial courts must consider a defendant’s ability to pay ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 18-24, 25, 28, 30

Fourth Holding:

Points perfunctorily asserted in briefing on appeal without argument in support are not properly raised.

Authority:

People v. Williams (1997) 16 Cal.4th 153, 206

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Appellate Principles, Duty of the court, Jury instructions

Case 001046

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to not sua sponte instruct the jury that, for the defendant to be found guilty of petty theft, the jury must unanimously agree on the item(s) taken.

First Holding:

When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.

The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 464-465

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

Second Holding:

The failure to give a unanimity instruction may be harmless error if the appellate court can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.

Authority:

People v. Norman (2007) 157 Cal.App.4th 460, 466

People v. Napoles (2002) 104 Cal.App.4th 108, 119 [erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors s not reasonably possible]

Third Holding:

(Gary note: The court described the ambiguity of the defendant’s intent in conjunction with moving Item A from the house to the garage, where he left it before fleeing. It concluded that the error was therefore not harmless. But it made an interesting comment regarding the respondent’s argument, which I set forth in this Third Holding.)

Because the Attorney General addresses only the [Item A], we take it as a concession there is reasonable doubt as to whether the jury could have come to a unanimous decision on the other possible acts of theft.

Authority:

People v. Bouzas (1991) 53 Cal.3d 467, 480 [state’s failure to respond to appellant’s point concedes it]

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation 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.

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 burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

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

Sixth 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. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

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

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