Tag Archives: Duty of the court

Abstracts and Minutes, Duty of the court, Juveniles, Sentencing

Case 000568

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in not declaring whether it found the minor’s wobbler offense (section 29610) to be a misdemeanor or a felony.

First Holding:

An offense under Penal Code section 29610 is a wobbler punishable by imprisonment or jail.

Authority:

In re D.D. (2015) 234 Cal.App.4th 824, 829

Second Holding:

Welf. and Inst. Code section 702 requires the juvenile court to declare on the record at a hearing before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration. The juvenile court’s failure to make this declaration as to each wobbler offense is error. A juvenile court’s failure to comply with section 702’s express declaration requirement must be corrected on remand unless the record as a whole establishes that the juvenile court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Third Holding:

The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment. Although the minute order reflects that the court declared the offense in count 1 a felony, the reporter’s transcript of the oral pronouncement reflects no such declaration. The latter controls.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340

Duty of the court, Jury trial, Standard of review

Case 000567

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. We reverse his convictions on this basis and remand for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right. We instead examine the totality of circumstances.

Authority:

U.S. Const., 6th Amend.

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

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial]

People v. Daniels (2017) 3 Cal.5th 961, 992

Second Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Third Holding:

The record here does not affirmatively show that the defendant’s jury trial waiver was knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay: that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.

But the advisement omitted that a jury consists of 12 people, that jurors are selected from a larger pool of prospective jurors in a process in which he could participate through counsel, or that a jury verdict must be unanimous––meaning that the prosecution would have to convince all 12 jurors of his guilt beyond a reasonable doubt, rather than a single judge. Nothing in the record shows the defendant had ever been advised of these omitted mechanics. He had no prior criminal history, and thus no prior occasion to receive such advisements from a court or otherwise. Nor does the record show a written waiver form was used.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 167-168

People v. Weaver (2012) 53 Cal.4th 1056, 1070 [though not required, written waiver form is helpful to establish the adequacy of a jury waiver]

People v. Jones (2018) 26 Cal.App.5th 420

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000556

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.

First Holding:

Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.

Authority:

People v. Catarino (2023) 14 Cal.5th 748, 752

Second Holding:

Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).

Authority:

PEN 667.6(c)

PEN 667.6(d)

PEN 269

Third Holding:

The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.

Authority:

People v. Carbajal (2013) 56 Cal.4th 521, 534

Fourth Holding:

In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.

Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.

Authority:

PEN 667.6(d)(2)

People v. Jones (2001) 25 Cal.4th 98, 104

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266

People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that 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. Salazar (2023) 15 Cal.5th 416, 419, 424

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

Sixth Holding:

The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.

Authority:

People v. Shiga (2016) 6 Cal.App.5th 22, 40

People v. Brown (2007) 147 Cal.App.4th 1213, 1229

Seventh Holding:

When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.

Authority:

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Garza (2003) 107 Cal.App.4th 1081, 1092

Eighth Holding:

Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.

Authority:

PEN 669(a)

People v. Midell (2025) 113 Cal.App.5th 1060, 1085

People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262

Ninth Holding:

It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 729

Appellate Principles, Duty of the court, Sentencing

Case 000550

Posted on by Gary McCurdy

Error and/or relief

The amount of credit for time served was short by three days. The judgment is modified to include those three days.

Holding:

The appellate court has authority to modify the judgment to correct the credit for time served.

Authority:

People v. Jones (2000) 82 Cal.App.4th 485, 493–494 [modifying judgment to correct custody credits]

Appellate Principles, Duty of counsel, Duty of the court, Sentencing

Case 000548

Posted on by Gary McCurdy

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

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

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Duty of the court, Probation Parole PRCS

Case 000545

Posted on by Gary McCurdy

Error and/or relief

The petitioner’s motion to dismissal under section 1203.4 upon complete of probation was mandatory, and should have been granted.

First Holding:

Once a defendant has fulfilled all the conditions of probation for the entire period of probation (or has been discharged prior to the termination of the period of probation), and are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, section 1203.4 provides that a defendant must be permitted to withdraw the plea of guilty and have the court dismiss the accusations or information against the defendant and be released from all penalties and disabilities except as provided in Vehicle Code section 13555.

Authority:

PEN 1203.4

Second Holding:

If the defendant has fulfilled the conditions of probation for the entire period of probation, dismissal is mandatory. If the defendant has not fulfilled the conditions of probation for the entire period of probation or been discharged prior to the termination of the period of probation, the court may still grant relief in its discretion in the interests of justice. Here, the defendant had fulfilled the conditions of probation for the entire period of probation, was not not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense. It was error to deny the petition.

Authority:

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

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

Duty of the court, Effective assistance of counsel, Plea bargains, Probation Parole PRCS, Sentencing

Case 000544

Posted on by Gary McCurdy

Error and/or relief

When the court set the probation term at three years instead of the agreed-on two years, the court erred in not complying with the plea bargain without permitting the defendant to withdraw from the plea agreement.

First Holding:

The standard for evaluating claims that counsel provided constitutionally ineffective assistance is set forth in Strickland. This standard provides that to secure reversal upon the ground of ineffective assistance of counsel under either the state or federal Constitution, an appellant must establish (1) that counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that appellant would have obtained a more favorable result absent counsel’s shortcomings.

On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687–694

People v. Cunningham (2001) 25 Cal.4th 926, 1003

People v. Mai (2013) 57 Cal.4th 986, 1009

Second Holding:

It is the appellant’s burden to demonstrate by a preponderance of the evidence that his or her counsel’s performance fell below an objective standard of reasonableness. Unless an appellant establishes the contrary, we shall presume that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Further, failure to raise a meritless objection is not ineffective assistance of counsel.

Authority:

In re Thomas (2006) 37 Cal.4th 1249, 1257

People v. Ledesma (2006) 39 Cal.4th 641, 746

People v. Bradley (2012) 208 Cal.App.4th 64, 90

Third Holding:

The defendant argues that his trial counsel was ineffective by failing to object when the trial court placed on a three-year grant of probation instead of the two-year probation term contemplated by the plea agreement. However, the order of probation is an unauthorized sentence, on which basis we reverse, rendering moot the question of ineffective assistance of counsel.

The Legislature enacted AB 1950, effective January 1, 2021, which significantly changed the law governing probation, including section 1203.1. Under the amended version of section 1203.1, the maximum term of probation a trial court may impose for most felony offenses is a period of time not exceeding two years. Whereas previous law had authorized courts to grant a period of probation not exceeding the maximum term for which the person could be imprisoned, AB 1950 instead authorizes a court to impose a term of probation not longer than 2 years, except as otherwise specified. As a general matter, the amendments of AB 1950 apply retroactively to the benefit of a person whose judgment is not yet final on appeal.

Authority:

PEN 1203.1

People v. Arreguin (2022) 79 Cal.App.5th 787, 793

People v. Faial (2025) 18 Cal.5th 199, 207

People v. Prudholme (2023) 14 Cal.5th 961, 963 [modifying term of probation to conform with new law while preserving remainder of plea agreement]

Fourth Holding:

Generally, a court may not accept an unauthorized plea. Where a trial court is asked to approve an illegal plea bargain—illegal because it violates a policy condition established by the Legislature or the people through the initiative process—the proper course of action for the court is clear. It should decline to act in excess of its authority and should refuse to approve an arrangement under which it is called upon to do so. Faced with an unlawful plea bargain, a trial court should withhold approval of the bargain.

Thus, if a court has approved a plea bargain containing an illegal term, ordinarily, the recourse for a court would not be to reform the bargain to make it legal; it would be to withdraw its prior approval of the agreement. Whether by withdrawal of its prior approval or the granting of a withdrawal/rescission request by one or both of the parties, the trial court must restore the parties to the status quo ante. The parties may then enter into a new plea agreement, which will be subject to the trial court’s approval, or they may proceed to trial on the reinstated charges.

Authority:

People v. Prudholme (2023) 14 Cal.5th 961, 974

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

People v. Aragon (1992) 11 Cal.App.4th 749, 756–757 [When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered]

People v. Barton (2020) 52 Cal.App.5th 1145, 1159

[Gary Note:

Gary note: This unpublished opinion recognizes that section 1171, effective 1/1/2025, provides that a resentencing under any ameliorative provisions cannot result in an order to set aside a plea bargain in which the sentence was specified. In other words, section 1171 appears to have overturned the Stamps decision with respect to allowing the lower court or the prosecution to set aside a plea bargain if the ameliorative provisions apply to change the sentence in a way that the prosecutor or court do not like.

This question was granted review in a published opinion in 2024 (100 Cal.App.5th 768), where it defined the issue as “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements?” On 12/18/2024, the Supreme Court transferred the case back to the Court of Appeal on the People’s motion for the Court of Appeal to vacate its earlier decision [which, in fact, concluded that the prosecutor could NOT rescind the agreement] and reconsider its opinion in light of the passage of AB 2483, which enacted section 1171. It also ordered the Court of Appeal’s original opinion to be depublished.

On remand, the Court of Appeal set aside its earlier opinion and issued a new opinion in which it said, “At the hearing, Montgomery may seek relief under any provision of section 1172.75, and neither the prosecutor nor the court may rescind the plea agreement due to a resulting sentence reduction.” The original Court of Appeal opinion was published, and it provides an analysis of why a review of the legislative history of AB 483 (which enacted section 1172.75)–including uncodified portions of AB 483– compelled it to conclude that Stamps did not apply. But the subsequent opinion following the Supreme Court’s transfer relied solely on section 1171, and the opinion was not published.

But Wait! There’s More!

On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

But it contained a very important footnote:

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”]

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

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. A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

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

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. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

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

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. We review the trial court’s determination 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. Saffle (1992) 4 Cal.App.4th 434, 438

People v. Vang (2010) 184 Cal.App.4th 912, 916

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement 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. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

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

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Amelioration, Duty of the court, Retroactivity, Sentencing

Case 000499

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.

First Holding:

Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).

Authority:

PEN 1172.75

Second Holding:

Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068

Third Holding:

Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000498

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court must recaculate credits for time served.

First Holding:

Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32

People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]

Duty of the court, Sentencing

Case 000492

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court must recalculate the credit for time served. The matter is remanded for the court to do so here. (The matter was complicated by the trial court awarding credit against this case for by credit earned in a separate case, making it difficult to determine how much the court credited in this particular case.)

Holding:

When a trial court resentences a defendant who is currently in custody, it must credit him with all actual days he spent in custody (whether in jail or prison) up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37