Tag Archives: Appellate process

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000990

Posted on by Gary McCurdy

Error and/or relief

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a restitution fine, a stayed parole revocation fine, a court operations assessment, and a criminal conviction assessment. The abstract of judgment must be corrected.

First Holding:

Where there is a discrepancy between the oral imposition of sentence on the one hand and the minutes and abstract of judgment on the other, the oral judgment controls. An abstract of judgment must be corrected if it does not reflect the oral judgment accurately.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389

Second Holding:

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a $300 restitution fine, a $300 stayed parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment.

Authority:

PEN 1202.4

PEN 1202.45

PEN 1465.8

GOV 70373

Third Holding:

We decline to remand the matter because no party objected to the trial court’s failure to impose fines and fees at sentencing. All claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. Appellate courts may not correct a discretionary sentencing choice if the People failed to object at sentencing.

A restitution fine under section 1202.4 is a discretionary sentencing choice. And by waiving any objection to the restitution fine, the People also effectively waive any objection to the parole revocation fine, because the parole revocation fine must match the restitution fine as a matter of law.

As to the court operations assessment and the criminal conviction assessment, neither party asserts that the trial court’s failure to impose these fees was unauthorized or reflects an obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings.

Absent such an argument, we decline to disturb the judgment.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852-853

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153

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

People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case]

People v. Kopp (2025) 19 Cal.5th 1, 30 [equal protection principles permit trial courts to waive fees under sec. 1465.8 and Gov. Code, sec. 70373, upon request, where defendant lacks ability to pay]

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Elements of crime, Sentencing

Case 000983

Posted on by Gary McCurdy

Error and/or relief

The convictions on counts 1 and 2 (domestic violence and assault with a deadly weapon) are based on the same act of striking the victim with his vehicle and therefore he cannot be punished for both.

First Holding:

Under section 654(a), 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. That the purpose of section 654 is to insure that a defendant’s punishment will be commensurate with the defendant’s culpability.

Authority:

PEN 654

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Second Holding:

A substantial evidence standard of review applies to the trial court’s determination of the applicability of section 654. We review the trial court’s factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

Third Holding:

When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section. A concurrent sentence simply does not satisfy the prohibition against double punishment. We will therefore modify the judgment ourselves to stay the sentence on count 2 in accordance with section 654.

Authority:

People v. Pena (1992) 7 Cal.App.4th 1294, 1312

People v. Bey (2025) 108 Cal.App.5th 144, 167–168

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority under sec. 1260 to modify judgment rather than remand as remedy for trial court’s failure to impose and stay sentence]

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000975

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand for resentencing because the trial court erroneously believed the law required it to impose consecutive sentences for every count.

First Holding:

Under section 667.61(i), consecutive sentences are mandatory only to offenses listed in section 667.61(c), paragraphs (1) through (7). The crime of which the jury found the defendant guilty is described in 667.61(c), paragraph (8).

Thus, consecutive sentencing was not mandatory.

Authority:

PEN 667.61(c)

Second Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

When a sentencing court was not aware of the full scope of its discretionary powers at the time the defendant was sentenced, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

People v. Salazar (2023) 15 Cal.5th 416, 419

Third Holding:

The Attorney General argues that the defendant forfeited his sentencing contention by failing to object below to the court’s error, and that the defendant cannot show his counsel was ineffective for failing to object because it was not reasonably likely the court would have imposed anything less than the 150-year sentence that it did.

We exercise our discretion to reach the question, notwithstanding forfeiture.

Authority:

People v. Leon (2016) 243 Cal.App.4th 1003 [the trial court’s erroneous understanding that it had no discretion to impose concurrent sentences may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection, and in any event, we would exercise our discretion to resolve the claim in the interests of fairness and judicial economy and to forestall unnecessary ineffective assistance of counsel claims.]

People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fourth Holding:

The trial court’s repeated references to section 667.61(i)’s requirement that it impose consecutive sentences leaves no doubt that the court here did not know it retained the discretion to impose concurrent sentences per victim.

The court provided no other reason for imposing consecutive sentences, including no comment that the aggravating factor warranted a maximum sentence or any similar comment.

We therefore cannot conclude that the record clearly indicates the court would have imposed the same sentence if it had understood its full sentencing discretion. We accordingly remand the matter for resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will respond to treatment, (2) the defendant consents to diversion and waives the right to a speedy trial, (3) the defendant agrees to comply with treatment, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

One of the defendant’s counts must be vacated because it was time-barred.

First Holding:

There is a three-year statute of limitations for reckless indifference to an animal’s suffering.

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

There is a relation-back provision, meaning a prosecutor could file charges late if they involved the same conduct alleged in charges that were timely filed. (Former sec. 803, subd. (b) [eff. Jan. 2018].) The relation-back provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct.

In other words, the relation-back provision does not function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant during the same time frame as an offense charged in a pending prosecution.

Authority:

People v. Terry (2005) 127 Cal.App.4th 750, 769

Third Holding:

The defendant requests that, on remand, he should be granted leave to file a motion for new trial on the grounds that the jury may have been influenced by the evidence presented on the time-barred-now-vacated count.

A motion for new trial must be made and determined before the making of an order granting probation. The defendant has been granted probation. The trial court lack jurisidiction to rule on a motion for new trial.

Authority:

People v. Martin (1963) 60 Cal.2d 615, 618