Tag Archives: Forfeiture

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. 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. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental 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.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

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

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial. The court may, however, consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

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

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

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

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

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Jurisdiction, Juveniles

Case 000774

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred by holding the minor jointly and severally liable for victim restitution.

First Holding:

Restitution orders are subject to review on appeal for an abuse of discretion. The ‘court abuses its discretion when it acts contrary to law.

Authority:

In re Travis J. (2013) 222 Cal.App.4th 187, 202

Second Holding:

Welfare and Institutions Code section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. Under this statute, a victim of conduct for which a minor is found to be a person described in section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.

For the purposes of victim restitution, each minor shall be held severally liable, and shall not be held jointly and severally liable as co-offenders. The court shall apportion liability based on each minor’s percentage of responsibility or fault for all economic losses included in the order of restitution. The aggregate amount of apportioned liability for all minors involved shall not exceed 100 percent in total.

Authority:

WIC 730.6

WIC 602

In re M.W. (2008) 169 Cal.App.4th 1, 4

Third Holding:

The error has not been waived, as the failure to object to a restitution order that exceeds the court’s statutory authority does not waive the claim of error.

Authority:

In re Paul R. (1996) 42 Cal.App.4th 1582, 1590

Jury trial, Standard of review

Case 000754

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously overruled the defendant’s objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror because the main reason given by the prosecutor for exercising the challenge was presumptively invalid under Code of Civil Procedure section 231.7. The record did not contain clear and convincing evidence rebutting the presumptive invalidity of the challenge.

First Holding:

Code of Civil Procedure section 231.7 prohibits the use of a peremptory challenge on the basis of a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Authority:

CCP 231.7

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Second Holding:

Upon objection to the exercise of a peremptory challenge pursuant to CCP 231.7, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court must then evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given.

If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. For purposes of section 231.7, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

Authority:

CCP 231.7

Third Holding:

Section 231.7 also contains two separate provisions describing presumptively invalid reasons for the exercise of a peremptory challenge. Each subdivision sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

The challenge of a prospective juror who expresses a distrust of or having a negative experience with law enforcement or the criminal legal system is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case

Authority:

CCP 231.7(e) and (g)

People v. Alston (2026) 118 Cal.App.5th 575, 581

Fourth Holding:

The denial of an objection made under CCP section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.

The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fifth Holding:

The defendant did not forfeit review of this issue, because his attorney’s general objection to the exercise of the peremptory challenge was sufficient to preserve the issue in this case.

Authority:

People v. Jaime (2023) 91 Cal.App.5th 941, 946 [forfeiture rule applies to section 231.7 claims]

People v. Espiritu (2026) 119 Cal.App.5th 1128 [The court was not confronted with a situation in which a defendant wholly failed to object “under the applicable statute. Rather, the defendant’s general objection was sufficient to preserve an argument alleging error based on a category of presumptively invalid reasons not brought to the trial court’s attention by defense counsel.]

Sixth Holding:

An objection to a peremptory challenge must be sustained whenever any reason identified for the challenge becomes conclusively invalid under section 231.7(g), regardless of whether the party exercising the peremptory challenge also identifies facially neutral reasons that do not fall within the scope of subdivision (g). Under the circumstances in this case, the defendant’s objection to the peremptory challenge was erroneously overruled, and prejudicially so. We reverse the judgment and remand for a new trial.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 896

Probation Parole PRCS, Sentencing, Standard of review

Case 000726

Posted on by Gary McCurdy

Error and/or relief

The court ordered appellant participate and complete general education/counseling and mental health counseling at the discretion of and as directed by probation. We find that delegating unfettered discretion to the probation department to determine whether appellant shall participate and complete education and counseling is impermissible and violates the separation of powers doctrine.

As such, we strike this probation condition and remand the matter to the trial court to consider whether or not appellant shall participate in and complete education and counseling as a condition of his probation, consistent with this opinion.

First Holding:

The People argue that appellant forfeited his probation-condition challenge by failing to object to it at the sentencing hearing. The forfeiture doctrine is a well-established principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Strong policy reasons support this rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.

The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

In re Sheena K. (2007) 40 Cal.4th 875, 880–881

Second Holding:

One exception to the forfeiture doctrine includes a facial constitutional challenge—one that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.

Appellant presents a facial challenge: the issue is whether the trial court may, under the separation of powers doctrine, delegate to the probation officer the determination of whether appellant must participate and complete education/counseling and mental health counseling.

Such a claim is not predicated on the factual details about the specific education and counseling ordered, appellant’s specific rehabilitative needs, or on the details of the programming the probation officer could determine under this condition. The forfeiture doctrine does not apply in this circumstance.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 885, 887-888

Third Holding:

The California Constitution separates the state government’s power into legislative, executive, and judicial branches and prohibits persons charged with the exercise of one power to exercise either of the others except as permitted by the California Constitution. The separation of powers doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fourth Holding:

A trial court has broad discretion to impose probation conditions to promote rehabilitation of the defendant and to protect the public. The court also has authority to empower the probation department with authority to supervise the probation conditions.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

Authority:

PEN 1203.1(j)

PEN 1202.7

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358–1359

People v. Smith (2022) 79 Cal.App.5th 897, 902

Fifth Holding:

We review a constitutional challenge to a probation condition de novo.

Authority:

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Sixth Holding:

Imposing a probation condition that subjects the defendant to the approval or direction of the probation officer is a permissible delegation. But delegating to a probation officer the decision of whether a defendant will participate in a specific form of treatment is an improper delegation of judicial authority.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–309

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903 [probation condition violates separation of powers doctrine by delegating to probation officer whether the defendant would be required to attend residential treatment/therapy/counseling program]

Seventh Holding:

Here, the court’s order for appellant to submit to education and counseling was much broader than simply leaving the details of that programming to the probation department, it gave the probation department the unlimited discretion to decide whether appellant is required to participate and complete general education and counseling at all.

Specifically, the court ordered appellant to participate and complete education/counseling and mental health counseling at the discretion of and as directed by the probation department.

This is an invalid delegation of judicial authority: although the court may delegate to probation the determinations of when and where a condition will be satisfied, the court may not delegate the decision of whether counseling or education shall be completed.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903

Abstracts and Minutes, Fines and fees, Sentencing

Case 000719

Posted on by Gary McCurdy

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. The oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 302, 303

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

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

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

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 742

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

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

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term 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.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term 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.

Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).

Authority:

PEN 1170

Cunningham v. California (2007) 549 U.S. 270, 281

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

Erlinger v. United States (2024) 602 U.S. 821, 834

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

Authority:

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

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. The court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

Almendarez-Torres v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

People v. Lynch (2024) 16 Cal.5th 730, 768 [a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established]

Eighth Holding:

A Sixth Amendment sentencing violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

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

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

 

 

Fines and fees, Sentencing

Case 000690

Posted on by Gary McCurdy

Error and/or relief

The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.

First Holding:

A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.

Authority:

People v. Ortega (1998) 19 Cal.4th 686, 699

Second Holding:

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.

However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

Authority:

PEN 654

PEN 954

People v. Ortega (1998) 19 Cal.4th 686, 692

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. Sanders (2012) 55 Cal.4th 731, 736

Third Holding:

This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.

Authority:

People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435

People v. Estes (1983) 147 Cal.App.3d 23, 29

Fourth Holding:

The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Fifth Holding:

Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.

Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.

Authority:

PEN 1202.5

PEN 1202.4

PEN 1465.8(a)(1)

GOV 70373

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

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

People v. Islas (2012) 210 Cal.App.4th 116, 130

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379

Appellate Principles, Juveniles, Plea bargains, Sentencing

Case 000684

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred when it set minor’s maximum confinement term at 33 years plus 25 years to life. We modify the maximum term of confinement to 25 years eight months plus 25 years to life.

First Holding:

Effective January 1, 2019, the Legislature passed SB 1391. The amendment eliminated the transfer of juveniles accused of committing crimes when they are 14 or 15 years old, unless they are first apprehended after the end of juvenile court jurisdiction. One year later, in 2020, the Legislature passed juvenile justice realignment through SB 823. It overhauled juvenile wardship law by closing the Division of Juvenile Justice and transferring jurisdiction over youthful offenders to counties, with the stated purpose of ensuring minors are closer to their families and communities and receive age appropriate treatment.

Authority:

WIC 707(a)

WIC 736.5

O.G. v. Superior Court of Ventura County (2011) 11 Cal.5th 82, 89

In re M.B. (2024) 99 Cal.App.5th 435, 448

In re T.O. (2022) 84 Cal.App.5th 252, 262–263

In re Miguel C. (2021) 69 Cal.App.5th 899, 907

Second Holding:

Section 875, effective May 14, 2021, was added as part of the juvenile justice realignment. Under the new scheme, commencing July 1, 2021, the court may order that a minor who is 14 years of age or older be committed to Secure Youth Treatment Facility if the minor meets certain criteria.

Authority:

WIC 875(a)

In re J.P. (2023) 94 Cal.App.5th 74, 78

Third Holding:

Section 875(b)(1) states the baseline term must be based on the most serious recent offense for which the minor has been adjudicated and shall represent the time in custody necessary to meet the developmental and treatment needs of the minor and to prepare the minor for discharge to a period of probation supervision in the community. The baseline term must be consistent with specified guidelines and may deviate by no more than six months.

Authority:

WIC 875(b)(1)

Fourth Holding:

In deciding minor’s placement, the juvenile court has maximum flexibility to craft suitable orders aimed at rehabilitating the particular minor before it.

Dispositional orders must conform with the purposes of juvenile delinquency laws, which are “twofold: (1) to serve the best interests of the delinquent minor by providing care, treatment, and guidance to rehabilitate the minor and enable him or her to be a law abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.

It must consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. A disposition hearing record should reflect evidence that the proposed means of rehabilitation will result in probable benefit to the minor, and that the goals of the juvenile law could not have been met by a less restrictive placement.

Authority:

In re James R. (2007) 153 Cal.App.4th 413, 432

In re Carlos J. (2018) 22 Cal.App.5th 1, 7

In re Michael D. (1987) 188 Cal.App.3d 1392

In re Miguel C. (2021) 69 Cal.App.5th 899, 906

In re Charles G. (2004) 115 Cal.App.4th 608, 614

In re Robert H. (2002) 96 Cal.App.4th 1317, 1329

Fifth Holding:

Plea bargains are an accepted and integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining is a common feature in juvenile delinquency proceedings, just as it is in criminal proceedings in adult court. Similar principles apply in both settings.

A plea bargain is a contract between the accused and the prosecutor. Both of these parties are bound to the terms of the agreement; when the court approves the plea bargain, it also agrees to be bound by its terms. Both the accused and the prosecution are entitled to the benefit of the plea bargain. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.

Authority:

People v. Collins (1978) 21 Cal.3d 208, 214

People v. Segura (2008) 44 Cal.4th 921, 929

In re Kenneth H. (2000) 80 Cal.App.4th 143 [It is well settled that a plea bargain is a tripartite agreement which requires the consent of the defendant, the People and the court]

In re Jermaine B. (1999) 69 Cal.App.4th 634, 639 [Plea bargaining is an accepted practice in our criminal justice system]

People v. Vargas (2001) 91 Cal.App.4th 506, 533

People v. Armendariz (1993) 16 Cal.App.4th 906, 911

People v. Panizzon (1996) 13 Cal.4th 68, 80 [When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties must abide by the terms of the agreement]

Sixth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Ames (1989) 213 Cal.App.3d 1214, 1217

Seventh Holding:

The court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea. Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case, or where, after further consideration, the court concludes that the bargain is not in the best interests of society. In deciding whether or not to withdraw approval of a plea bargain, the court may of course be expected to consult the probation report.

Authority:

eople v. Johnson (1974) 10 Cal.3d 868, 873

People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1338

People v. Stringham (1988) 206 Cal.App.3d 184, 194

Eighth Holding:

A minor who does not challenge an assertedly erroneous ruling of the juvenile court in that court has forfeited his or her right to raise the claim on appeal. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the court—so any error may be corrected. While forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880; In re F.M. (2023) 14 Cal.5th 701, 710

In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground

In re M.R. (2005) 132 Cal.App.4th 269, 273–274

United States v. Olano (1993) 507 U.S. 725, 733–734

In re Uriah R. (1999) 70 Cal.App.4th 1152, 1155 [A broad or general waiver such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error]

Ninth Holding:

The juvenile court incorrectly calculated the determinative portion of the term for count 2, the primary offense, as 19 years. Attempted murder, the offense in count 2, has a sentencing triad of five, seven, or nine years, for which the juvenile court imposed the upper term of nine years plus a 10 year term for the attendant gang enhancement pursuant to Penal Code section 186.22(b)(1)(C).

However, section 875(c)(1)(B) specifically states the term chosen by the juvenile court cannot exceed the middle term for which an adult would be eligible, with some exceptions. Therefore, the court erred in imposing the upper term for count 2.

Authority:

WIC 875(c)(1)(B)

Tenth Holding:

The juvenile court also miscalculated the consecutive term for count 1. Count 1 was the subordinate term, and the court was limited to one-third of the middle term plus one-third of the enhancements.

Authority:

PEN 1170.1