Tag Archives: Jurisdiction

Abstracts and Minutes, Jurisdiction, Probation Parole PRCS, Sentencing

Case 001013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in revoking the defendant’s probation after the period of probation had expired, because it no longer had jurisdiction once the probation period expired.

First Holding:

A trial court, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years.

Revocation is a two-step process. First, when presented with probable cause of a violation, a court may summarily revoke supervision and issue a bench warrant for the defendant’s arrest.

Second, the defendant is entitled to a formal hearing at which the prosecution must prove the violation and a disposition may be made. If the violation is found true, the court may, among other options, terminate supervision and order incarceration in jail, or it may reinstate supervision and modify the conditions, such as by imposing a period of jail incarceration.

Authority:

PEN 1203.1(a)

People v. Braud (2020) 56 Cal.App.5th 962, 966

Second Holding:

The revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, while the trial court has the power to extend the probationary term, tolling at the summary revocation stage does not automatically extend the probationary period but rather preserves the court’s jurisdiction to proceed to the second step, a formal hearing to decide whether there has been a violation during the probation period, after the probation period has expired.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 504)

People v. Braud (2020) 56 Cal.App.5th 962, 968

Third Holding:

The defendant was placed on two years probation. The parties disagree on whether probation expired in April or had been extended to a late August date. Although a minute order of a hearing held on a date in late August stated that it was revoked on a specific date a few weeks before the hearing, the court never stated that probation was revoked at a hearing.

A trial court’s oral pronouncements control over a subsequently entered minute order. Moreover, the minutes from that earlier hearing do not say probation was revoked. There was no reporter at that earlier hearing. Thus, the record does not support the assertion that probation was revoked at that early August hearing.

Instead, the record does reflect that the court purported to revoke probation two months later, in October. But whether probation was set to expire in April (as the defendant claimed) or in August (as the prosecution claimed), both dates had passed before the October hearing.

As the probation expiration date had passed (whether in April or August), the court no longer had jurisdiction to decide whether the defendant had violated probation.

Authority:

People v. Sanchez (2019) 38 Cal.App.5th 907, 918–919

People v. Braud (2020) 56 Cal.App.5th 962, 968


(Gary note: I recognize that this summary is inartfully worded, a product of my attempt to anonymize the participants. During the defendant’s probation, it was revoked and reinstated a number of times. At some point–whether April or August–probation expired during a period when there was no order revoking probation, summary or otherwise. Had the court timely summarily revoked probation before its term expired, it would have had jurisdiction over the case even after the term expired. By not putting the probation into a “revocation” mode, probation simply terminated when the expiration date arrived. At that point, the court lost jurisdiction to conduct revocation proceedings.)

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

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

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

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

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

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

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

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

Authority:

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

Third Holding:

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

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

Authority:

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

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000911

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the trial court’s order denying his request for resentencing under section 1172.1. We dismiss the appeal as taken from a nonappealable order but order the superior court to correct the abstract of judgment.

(Gary note: This is not exactly a win, and yet it may be in a way. I include it because it contains another example of an abstract of judgment that does not reflect the actual judgment, albeit the error favors the defendant in one respect, while doing him a disservice in another. The opinion contains an interesting aspect that possibly could result in a resentencing of the defendant through a different means.)

First Holding:

Under section 1172.1, a trial court may recall a sentence and resentence a defendant at any time upon the recommendation of various designated correctional or law enforcement authorities, including the Secretary or the Board of Parole Hearings, the county correctional administrator, the district attorney of the county in which the defendant was sentenced, or the Attorney General. The trial court may also recall and resentence a defendant on its own motion within 120 days of the date of commitment.

In addition, pursuant to an amendment effective January 1, 2024, a trial court now also has jurisdiction to recall a sentence and resentence a defendant 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.

Authority:

PEN 1172.1

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

Second Holding:

Section 1172.1 expressly denies defendants the right to file a petition for resentencing under that section, and expressly excuses the trial court from acting on any such request that a defendant might nevertheless file.

Authority:

PEN 1172.1(c) [A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.]

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Olea (2025) 115 Cal.App.5th 889, 896-897

People v. Roy (2025) 110 Cal.App.5th 991, 998-999 [sec. 1172.1 does not entitle a defendant to petition the court for relief and a petition filed by defendant is best viewed as merely inviting the court to consider whether it wishes to exercise its discretion under section 1172.1]

Third Holding:

Because a defendant has no right to a superior court ruling when he or she requests consideration for relief under section 1172.1, the court’s choice not to act on the defendant’s petition does not deprive the defendant of a substantial right. Accordingly, a superior court’s decision declining a defendant’s invitation to recall his sentence under section 1172.1 is not appealable.

Because the defendant initiated the section 1172.1 petition and the superior court declined to act on it, we lack jurisdiction over the appeal.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1046

People v. Faustinos (2025) 109 Cal.App.5th 687, 697 [there is no appellate jurisdiction over an order declining to act on a defendant’s unauthorized section 1172.1 petition]

Fourth Holding:

The superior court is directed to correct the abstract of judgment to reflect that Steele’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 790-791 [the court has inherent power to correct a clerical error at any time]

Fifth Holding:

(Gary note: This is the part where the appellate court gives a strong clue to the defendant on how he might proceed at this point. The Fourth Holding described that the failure of the abstract of judgment was that it did not indicate the imposition and staying of what is now an invalid prior prison term enhancement under section 667.5(b). Here’s the benefit to the defendant that may flow from the appellate court’s direction that the abstract be amended to include that imposed-but-stayed now-invalid prior prison term enhancement. What should happen next is the receipt by CDCR of the amended abstract of judgment that reflects the now-invalid enhancement, which should trigger a notice from CDCR to the court that the defendant appears to be eligible for a full resentencing under section 1172.75.)

Although it is not reflected in the abstract for judgment, the minute order from the defendant’s sentencing reflects that the trial court imposed but stayed the one-year prior prison term enhancement under section 667.5, former subdivision (b). The California Supreme Court recently held that, in this circumstance, a defendant is entitled to recall and resentencing under section 1172.75(a) to have the stayed prior prison term enhancement stricken and to receive a full resentencing at which the superior court must consider a broad range of factors, including changes in law that reduce sentences and postconviction factors that inure in the defendant’s favor.

We have no jurisdiction at this juncture to address the defendant’s eligibility for resentencing under section 1172.75. However, we direct the superior court to correct the abstract of judgment to reflect that the defendant’s sentence includes a one-year prior prison term enhancement under section 667.5, former subdivision (b), that was imposed but stayed. Without this correction, the Department of Corrections and Rehabilitation would be unable to satisfy its duty to identify and notify the sentencing court that the defendant is a person serving a term for a judgment that includes a section 667.5, former subdivision (b), enhancement.

Authority:

People v. Espino (2026) 20 Cal.5th 57

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

Discretion, Jurisdiction, Juveniles, Standard of review

Case 000881

Posted on by Gary McCurdy

Error and/or relief

The juvenile court abused its discretion because its decision to transfer the minor to adult criminal court was not supported by substantial evidence. We vacate the transfer order and remand.

First Holding:

In California, a juvenile court is a superior court that exercises limited jurisdiction arising under juvenile law. The initial jurisdiction of a juvenile court is based on the age of the person when he violates a criminal law or ordinance, it is not based on the age when he is actually apprehended.

After a juvenile court has initial jurisdiction over a minor, the juvenile court generally retains jurisdiction until he turns 21 years old. However, if a person is alleged to have committed one of 30 serious offenses under section 707(b), then the juvenile court may continue to exercise jurisdiction over that person for a limited period after he turns 21.

Relevant to this case, a juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in section 602 by reason of the commission of an offense listed in section 707(b). The court shall exercise jurisdiction in conformance with the objectives of the juvenile court.

Authority:

WIC 607(a), (d)

WIC 707(b)

In re Chantal S. (1996) 13 Cal.4th 196, 200

M.E. v. Superior Court (2023) 88 Cal.App.5th 1199, 1205 [explaining initial jurisdiction and noting that it is theoretically possible for a person to commit a crime at the age of 17, be arrested 50 years later, and be subject to the initial jurisdiction of the juvenile court at age 67]

In re Keith C. (2015) 236 Cal.App.4th 151, 155

Second Holding:

If a minor was 16 years or older when he committed a felony or one of 30 serious offenses under section 707(b), the district attorney may file a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. In order to transfer a minor to a criminal court, the prosecutor must show by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

To resolve a transfer motion, section 707 requires the juvenile court to consider five factors: (1) the degree of criminal sophistication exhibited; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) prior delinquent history; (4) the success of prior attempts by a juvenile court at rehabilitation; and (5) the circumstances and gravity of the offense alleged.

While the juvenile court must consider these five factors, the weight each factor receives is within the juvenile court’s discretion.

Thus, the juvenile court has the discretion to conclude that one or more of the five factors predominate so as to determine the result, even though some or all of the other factors might point to a different result. If a juvenile court grants a transfer motion, section 707(a)(3) requires the juvenile court to recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. Section 707 also provides additional nonexhaustive considerations for assessing each of the five factors.

As relevant to this case, with respect to the second factor, section 707 directs the juvenile court to give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature. The second factor is not the same as the ultimate determination of whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court. Rather, the focus of the second factor is whether there is enough time to rehabilitate the minor while he is still eligible to remain under the juvenile court’s jurisdiction.

Therefore, the prosecution should produce evidence that the juvenile court will have insufficient time to rehabilitate the minor.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164, 166-167

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

In re E.P. (2023) 89 Cal.App.5th 409, 417

Third Holding:

A juvenile court’s decision to transfer a minor to the jurisdiction of a criminal court is reviewed under the abuse of discretion standard. A court abuses its discretion by issuing an order that exceeds the bounds of reason. A court may also abuse its discretion if its understanding of the applicable law is incorrect, it is unaware of the full scope of its discretion, or it relies on impermissible criteria.

The juvenile court’s findings on the five section 707(a)(3) factors, as well as its ultimate finding that the minor is not amenable to rehabilitation while under its jurisdiction, are reviewed for substantial evidence. Because the clear and convincing evidence standard applies to a motion to transfer, we determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by that standard.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. K.D. (2025) 110 Cal.App.5th 1, 18

People v. Knoller (2007) 41 Cal.4th 139, 156

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

Fourth Holding:

It is clear from the record that the court was not aware that it had jurisdiction for at least two years from the date the disposition was ordered, regardless of the person’s age (which, in this case was the mid 30s). Because the juvenile court found that it had lost jurisdiction based on the minor’s age alone, its finding is contrary to section 607(d) and thus, rests on an incorrect understanding of the law. Therefore, the court abused its discretion in its assessment of the second factor of section 707(a)(3).

Authority:

Williams v. Superior Court (2017) 3 Cal.5th 531, 540 [An order that implicitly or explicitly rests on an erroneous reading of the law necessarily is an abuse of discretion.]

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. K.D. (2025) 110 Cal.App.5th 1, 18-19

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

Fifth Holding:

All defendants are entitled to decisions made in the exercise of the trial court’s informed discretion. A court does not exercise informed discretion when its decision is based on a misunderstanding of applicable law.

Because there has been a misunderstanding of applicable law by the juvenile court, we must determine whether the record clearly indicates that the juvenile court still would have ordered the minor transferred to the criminal court if it had correctly understood the applicability of section 607(d).

Given the apparent importance of the second factor, and that the record does not clearly indicate how the juvenile court would have assessed the second factor under the applicable law, we must remand this matter for the court to make further findings.

Authority:

People v. Murphy (2025) 116 Cal.App.5th 249, 256

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case 000841

Posted on by Gary McCurdy

Error and/or relief

The Court of Appeal treated this appeal as a petition for writ of habeas corpus, and struck the enhancement for the now-invalid prison term enhancement.

Habeas was necessary because the defendant’s name did not appear on a list prepared and maintained by the California Department of Corrections and Rehabilitation (CDCR), so the defendant was not eligible to apply for resentencing under section 1172.75.

The court granted the writ, directing that the prior prison term enhancement be stricken, and also ordered correction of an error contained in the abstract of judgment.

First Holding:

Section 1172.75, effective in 2022, provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

The statute also establishes a process for recalling sentences that include now-invalid prior prison term enhancements and resentencing affected defendants. It requires the Secretary of the CDCR and the county correctional administrator of each county to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and to provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.

Upon receiving this information, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in section 1172.75(a). If the judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant.

Section 1172.75 does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.

While defendant’s petition is not sufficient to authorize the trial court to act pursuant to section 1172.75, jurisdiction can be found if the CDCR provided the court with a list identifying defendant while his petition was pending.

In this case, the CDCR never identified defendant to the trial court as someone eligibile for section 1172.75 resentencing, and the trial court did not have jurisdiction to resentence the defendant under section 1172.75. Therefore, the trial court’s resentencing and related abstract of judgment and minute order are void.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 384

People v. Cota (2023) 97 Cal.App.5th 318, 332 [trial court is statutorily authorized to act once trial court receives defendant’s identification information from CDCR]

People v. Escobedo (2023) 95 Cal.App.5th 440, 447–448

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Chavez (2018) 4 Cal.5th 771, 780

Third Holding:

On appeal from a void judgment or order, we must reverse the trial court’s void acts because simply dismissing the appeal would leave intact the void judgment.

Authority:

People v. Gray (2024) 101 Cal.App.5th 148, 170

People v. Alanis (2008) 158 Cal.App.4th 1467, 1477, fn. 5

Fourth Holding:

Where, as here, execution of sentence has commenced and the judgment is final, the trial court is generally deprived of jurisdiction to resentence a criminal defendant.  To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75). 

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 339

People v. Karaman (1992) 4 Cal.4th 335, 344

Dix v. Superior Court (1991) 53 Cal.3d 442, 455

People v. Hernandez (2019) 34 Cal.App.5th 323, 326

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118

Fifth Holding:

A trial court may recall and resentence a defendant on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, provided the new sentence, if any, is no greater than the initial sentence.

A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1172.1(a)(1)

Sixth Holding:

A defendant may, however, invite the court to exercise its discretion under section 1172.1.

However, appellate courts have uniformly held that a trial court’s summary decision not to take up a defendant’s invitation under section 1172.1 is not an appealable order and that any such appeal fails to confer jurisdiction to the Court of Appeal.

There is no indication in the record that the trial court intended to grant defendant’s invitation to recall and resentence him pursuant to section 1172.1.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375

People v. Brinson (2025) 112 Cal.App.5th 1040, 1047

People v. Roy (2025) 110 Cal.App.5th 991, 1001

People v. Faustinos (2025) 109 Cal.App.5th 687, 695–696

People v. Hodge (2024) 107 Cal.App.5th 985, 996

Seventh Holding:

The record does reflect that a prior prison term enhancement was imposed illegally (because it was imposed AFTER the statute was amended declaring such prior prison term enhancements to be invalid).

Both parties have requested that we treat defendant’s appeal as a petition for writ of habeas corpus with respect to the sentence he is still serving, and we exercise that discretion.

Accordingly, for the sake of judicial economy, we shall deem defendant’s appeal, in part, a petition for writ of habeas corpus and order that the abstract of judgment be modified to strike defendant’s former section 667.5 enhancement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

Eighth Holding:

The abstract of judgment erroneously reflects that the firearm enhancement is attached to count II instead of count I, which it was actually attached to. Having reviewed the record on appeal, we shall order the abstract of judgment corrected.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

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

Abstracts and Minutes, Sentencing

Case 000753

Posted on by Gary McCurdy

Error and/or relief

Three of the protective orders issued by the trial court under section 136.2 exceeded the court’s authority and should be vacated. There is a clerical error in the defendant’s abstract of judgment that requires correction.

First Holding:

Restraining orders under section 136.2 are authorized only for victims of certain specified offenses including certain domestic violence crimes, sexual offenses like rape, gang-related crimes, or crimes requiring registration as a sex offender. Three of the people for whom a protective order was issued were not victims of the defendant’s crimes, and the trial court lacked jurisdiction to issue those orders.

Authority:

People v. Robertson (2012) 208 Cal.App.4th 965, 996

Second Holding:

Issuance of a restraining order in excess of jurisdiction can be corrected at any time.

Authority:

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

Third Holding:

The abstract of judgment erroneously states that the punishment on the special circumstance was stayed. It was not stayed and the abstract of judgment must be corrected.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Appellate Principles

Case 000747

Posted on by Gary McCurdy

Error and/or relief

On remand from the previous appeal, the trial court did not follow the instructions in the opinion to determine whether the defendant was guilty of implied malice second degree murder, and instead concentrated on whether the defendant had made a prima facie showing that he was eligible for relief under section 1172.6.

The matter must again be reversed and remanded for section 1172.6 (d) proceedings, including briefing and an evidentiary hearing wherein the People have the burden of proving beyond a reasonable doubt that defendant is still guilty of second degree implied malice murder.

First Holding:

The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. Where a reviewing court reverses a judgment with directions the trial court is bound by the directions given and has no authority to return any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. Any material variance from the directions is unauthorized and void.

Authority:

Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 701

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Ramirez (2019) 35 Cal.App.5th 55, 64

Second Holding:

We previously remanded this matter with directions for the trial court to conduct further proceedings consistent with [the prior] decision. That decision explained that the trial court had inappropriately applied the felony-murder rule to the case and stated that on remand, we highlight the propriety of formal briefing by the parties to provide both argument and evidence in support of their respective positions regarding defendant’s current guilt for second degree, implied malice murder.

These proceedings shall be consistent with the requirements of amended section 1172.6(d) in order to determine whether the People have met their burden to show beyond a reasonable doubt that defendant is guilty of murder under California law as amended by the changes to section 188 or 189 made effective January 1, 2019.

The trial court’s order denying the petition on a prima facie basis (sec. 1172.6(c)) materially differed from these instructions. Accordingly, the court’s order is void and must be reversed.

Authority:

People v. Ramirez (2019) 35 Cal.App.5th 55

Jurisdiction, Standard of review, Sufficiency of and substantial evidence

Case 000682

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to establish that one of the charged counts of aggravated sexual assault of a child based on sexual penetration took place within the jurisdiction of the superior court, and reverse the conviction on that count.

Holding:

There was insufficient evidence that more than one of the two counts of aggravated sexual assault of a child by sexual penetration occurred in a city in California, as opposed to Mexico.

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment and determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The victim’s answers to the questions indicated that at least one of the incidents occurred in California, but did not exclude the possibility that the other occurred in Mexico, outside the superior court’s jurisdiction.

Authority:

People v. Maciel (2013) 57 Cal.4th 482, 514–515

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

Jurisdiction, Probation Parole PRCS, Sentencing

Case 000638

Posted on by Gary McCurdy

Error and/or relief

Though the trial court had summarily revoked probation prior to its expiration, for deserting probation, the trial court lacked the authority to find that the defendant violated probation based on his arrest for an offense that allegedly occurred in 2024, after his probation period expired in 2023. That matter is remanded for the court to determine whether there were grounds for revocation based on conduct occurring before probation expired.

Holding:

Summary revocation of probation preserves the trial court’s authority to adjudicate a claim that the defendant violated a condition of probation during the probationary period. A trial court can find a violation of probation and then reinstate and extend the terms of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 515-516

Appellate Principles, Duty of the court, Jurisdiction, Sentencing

Case 000625

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, we reversed on the basis that the sentence was the functional equivalent of a term of life without the possibility of parole (LWOP), and remanded for the trial court, as we specified in the remittitur, to consider the defendant’s application for resentencing under section 1170(d) as a person serving the functional equivalent of LWOP.

On remand, the trial court declined to find the defendant was serving the functional equivalent of LWOP, based on an opinion from another district subsequent to the case we relied on in our first opinion. The court had no jurisdiction to go outside the limits of our remittitur, and we remand the case to the lower court to carry out the directions in our remittitur. The matter is remanded to the trial court with the direction to find the defendant eligible for relief and to consider the merits of his petition.

First Holding:

This court has held that offenders sentenced to functionally equivalent LWOP terms are entitled to section 1170(d) relief under the constitutional guarantee of equal protection, in agreement with Heard. Another district has held otherwise.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440

People v. Heard (2022) 83 Cal.App.5th 608,

People v. Isayev (2025) 113 Cal.App.5th 1117, 1123, review granted November 12, 2025, S292860 [Holding that the availability of a youth offender parole hearing under section 3051, which requires such a hearing to be held no later than 25 years into the juvenile’s sentence, precludes finding that the juvenile has a sentence functionally equivalent to life without parole, and is thus ineligible for recall and resentencing under section 1170(d)]

Second Holding:

The remittitur both terminates the reviewing court’s jurisdiction of the case and proscribes the remaining jurisdiction of the receiving court. After the remittitur, the appellate court has no further jurisdiction of the appeal and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted.

Authority:

PEN 1265

Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned]

Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5 [The terms of the remittitur define the trial court’s jurisdiction to act]

Third Holding:

The trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court. The order of the appellate court as stated in the remittitur, is decisive of the character of the judgment to which the appellant is entitled.

A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal. Action that does not conform to the appellate court’s directions is void. The trial court was not free to depart from the instructions in the remittitur, as the trial court must follow a remittitur even if it believes the decision was wrong or has been impaired by subsequent decisions.

Authority:

Rice v. Schmid (1944) 25 Cal.2d 259, 263

Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367