Tag Archives: Elements of crime

Sentencing

Case: 000256

Posted on by Gary McCurdy

Error and/or relief

After a jury convicted the defendant of one count of kidnapping to commit a sex offense and five counts of forcible rape, he was sentenced to 25-years-to-life on one of the forcible rape counts, plus concurrent life terms on the remaining counts. The trial court also dismissed all fines and fees, although the abstract of judgment shows imposition of two $200 restitution fines. The sentence on the kidnapping to commit a sex offense count should be stayed because that count and the forcible rape count constituted a single criminal act. The court must correct the abstract of judgment to reflect that no restitution fines were imposed.

First Holding:

Section 209(d) provides that a person may be charged with a violation of section 209(b) and section 667.61, but that a person may not be punished under section 209(b) and section 667.61 for the same act that constitutes a violation of both section 209(b) and section 667.61.

Authority:

PEN 209(d)

People v. Adams (2018) 28 Cal.App.5th 170

Second Holding:

Here, the defendant kidnapped the victim to commit a sex offense, and this act formed the basis for his convictions. Additionally, because the victim was not released until after she was dropped off near her relative’s house, there was only one kidnapping offense. Thus, there was a single common act, and the punishment on count 1 (kidnapping to commit a sex offense) must be stayed.

Authority:

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334 [The forcible detention of a victim is an element of kidnaping and as long as the detention continues, the crime continues]

Third Holding:

At the sentencing hearing the trial court expressly dismissed all fines and fees in the interest of justice. The abstract of judgment, however, reflects the imposition of a restitution fine in the amount of $200 under section 1202.4(b) and a suspended parole revocation restitution fine of $200 under section 1202.45. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. If the clerk includes fines in the court’s minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment.

Authority:

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

People v. El (2021) 65 Cal.App.5th 963, 967

Fourth Holding:

Respondent argues the restitution fines are mandatory, and the trial court must impose them unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. Respondent notes the trial court did not provide any compelling or extraordinary reasons on the record, and the only referenced reason was defendant’s inability to pay, which is not a compelling and extraordinary reason to not impose a restitution fine. Respondent requests we correct the abstract to impose the minimum restitution fines, or remand the matter to the court for the limited purpose of either imposing the fines or stating extraordinary and compelling reasons for not imposing the fines. We decline to do so. Because the district attorney failed to object to the court’s omission of a statement of extraordinary and compelling reasons, the waiver doctrine bars the People from obtaining the relief they seek on appeal. Thus, respondent cannot challenge the court’s failure to impose restitution fines in this appeal.

Authority:

PEN 1204.2

People v. Tillman (2000) 22 Cal.4th 300, 302

Sentencing, Standard of review

Case: 000254

Posted on by Gary McCurdy

Error and/or relief

Penal Code section 654 prohibits punishment for both the murder and the burglary during which it occurred. In addition, the defendant is entitled to one more day credit for time served.

First Holding:

Section 654 provides in relevant part 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. It bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. It has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. If all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.

Authority:

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042–1043

Second Holding:

On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. We review de novo the legal question of whether section 654 applies.

Authority:

People v. Valli (2010) 187 Cal.App.4th 786, 794

Third Holding:

Burglary consists of entry into a house with the intent to commit a felony. Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. Here, the record reflects that the intent and objective of both the burglary and the murder were the same, and this was the prosecution’s theory of the case at trial. Accordingly, in light of the evidence introduced at trial, the jury instruction on burglary, and the prosecutor’s argument, substantial evidence does not support the trial court’s order to sentence defendant consecutively on these counts. Rather, one of the sentences on counts 1 or 2 should be stayed pursuant to section 654. And, because section 654 provides the court with discretion with regard to which sentence will be stayed, remand is necessary for the court to exercise its discretion in modifying defendant’s sentence.

[GARY NOTE: Don’t ignore the importance of this last statement. While it may be hard to imagine a case in which a judge would sentence on the burglary and stay the sentence for the murder, the judge does have that discretion under section 654. You may have a case where your client may be more sympathetic and the crimes not so divergent in their relative seriousness. It is not inconceivable that you could persuade a judge to impose and execute sentence on the lesser evil committed by your client, staying execution of the sentence on the more serious offense.]

Authority:

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130 [When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes]

Fourth Holding:

Defendant was entitled to one additional day of presentence custody credit because the court failed to include the day of his arrest.

Authority:

PEN 2900.5


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


People v. Valdes (2020) 53 Cal.App.5th 953, 955 [the day of arrest counts as a custody credit day]

Elements of crime, Sentencing, Standard of review, Statutory interpretation

Case: 000253

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the defendant’s perjury conviction. We reverse the perjury conviction. His excess presentence custody credits must be applied to reduce his parole period. The record does not permit a determination of the precise number of excess custody credits. Because we are remanding for resentencing, we direct the trial court to calculate and determine the appropriate application of those credits.

First Holding:

A conviction under section 118(a) requires proof that the challenged statement was made under penalty of perjury, and that the sex offender registration form signed by the defendant did not contain such a declaration. Because the statutory element was not established, reversal is required.

Authority:

PEN 118(a)

Second Holding:

When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting that review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Reversal for insufficient evidence is warranted only where it appears that, under no hypothesis whatsoever, is there sufficient evidence to support the verdict.

Authority:

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Section 118(a) provides that a person commits perjury when he or she certifies under penalty of perjury and willfully states as true any material matter that he or she knows to be false. Proof that the false statement was made under penalty of perjury is therefore an essential element of the offense. Here, the Criminal Justice Information System (CJIS) Form 8102S signed by the defendant states: “I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense.” The form does not state that the certification is made under penalty of perjury. Because the prosecution failed to establish this essential statutory element, the evidence is insufficient to support the defendant’s conviction for perjury under section 118(a). Accordingly, the conviction on that count must be reversed, and the matter remanded for resentencing.

Authority:

People v. Tafoya (2025) 109 Cal.App.5th 868, 902

Fourth Holding:

Section 2900.5 requires that all days a defendant spends in custody—including time in jail or a rehabilitation facility—be credited against the defendant’s term of imprisonment, which expressly includes any period of parole prior to discharge. By the time the defendant was sentenced, he had already served enough days in custody to qualify for release on parole.

Authority:

PEN 2900.5

In re Ballard (1981) 115 Cal.App.3d 647, 650

Fifth Holding:

The parties and trial court disagreed on how to calculate the time expected to complete a 16-month term against which the known number of days in custody would apply, but approaches proposed are flawed. Section 7(b)(13) defines a “month” as a “calendar month.” A calendar month is not a fixed number of days, but rather the space of time from any day of any such month to the corresponding day of the next, and may therefore vary in length. Consequently, a sentence expressed in months cannot be converted into a predetermined number of days by multiplying months by 30, nor by fractionalizing a year into parts. Instead, the proper calculation depends on the defendant’s actual dates of incarceration and release. Because the record does not disclose the precise date of the defendant’s incarceration, we cannot determine the exact number of days constituting his 16-month term. Accordingly, this issue must be remanded for the trial court to calculate his sentence based on his actual custodial dates and to apply any excess custody credits to reduce his parole period as required by section 2900.5

Authority:

PEN 7(b)(13)

In re Kemper (1980) 112 Cal.App.3d 434, 439, fn. 2

People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 414, fn. 23 [a three-month statutory period may range from 89 to 92 days depending on the specific dates involved]

Abstracts and Minutes, Amelioration, Sentencing

Case: 000231

Posted on by Gary McCurdy

Error and/or relief

The jury’s true finding in 2023 that the defendant suffered a prior serious felony and strike offense based on a past gang related conviction was error. We vacate the prior serious felony and strike conviction and remand for retrial and resentencing. Further, the abstract of judgment must be corrected because it reflects a conviction for first degree robbery when it should be second degree robbery.

First Holding:

In 2021, the Legislature amended the law prohibiting criminal gang activity law. In many respects, it changed the elements of a section 186.22 offense that the prosecution here did not prove. For a pre-AB 333 section 186.22 offense to qualify as a prior serious felony and strike offense, the prosecution was required to prove that the defendant’s past conduct met the post-AB 333 section 186.22 elements.

Authority:

PEN 186.22

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 582-583

Second Holding:

The abstract of judgment must be corrected.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate court could have cited]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Elements of crime, Jury instructions, Standard of review

Case: 000219

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in instructing the jury that implied malice murder can be based on an act that was reasonably foreseeable to cause death rather than highly likely to cause death. The prosecutor erred by making arguments to the jury on the same point. The defendant’s convictions on the counts of murder are reversed. The charges may be retried on remand. [The defendant was convicted as a result of the death of three occupants of a vehicle he crashed into while he was driving under the influence.]

First Holding:

Malice may be implied when a defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. The trial court erred here by requiring only that death be a reasonably foreseeable consequence of appellant’s act, rather than a highly probable one. Similarly, the prosecutor erred by arguing to the jury that it need not find that appellant’s act of driving impaired created a strong probability of death.

Authority:

People v. Dellinger (1989) 49 Cal.3d 1212, 1219

Second Holding:

When the trial court misinstructs the jury on an element of a charged crime, we consider prejudice under the standard of Chapman. Under that standard, we reverse the judgment unless the error was harmless beyond a reasonable doubt.

Authority:

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

People v. Hendrix (2022) 13 Cal.5th 933, 942