Tag Archives: Pleading and notice

Due process, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000882

Posted on by Gary McCurdy

Error and/or relief

Though the defendant was convicted of section 243.4(a), the correct code section for the pleaded and proved crime was section 243.4(d), and we modify the judgment accordingly. In all other respects, we affirm the judgment.

(Gary note: I stretch to count this as a win, because it did not really provide any relief. But it contains some important principles on what happens when the allegation describes conduct but lists the incorrect code section for it. So I decided to include it. Yep. My bar for inclusion is very low.)

First Holding:

Adequate notice to the defendant of the offense with which he is charged is not determined solely by the charging statute. A reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged.

The defendant was amply acquainted with the basis for count 3 and argues no prejudice from being charged under the wrong subdivision of section 243.4. The victim testified to the conduct underlying count 3 at the preliminary hearing and then again at trial. There is no dispute the evidence supports a conviction under subdivision (d).

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1439

People v. Thomas (1987) 43 Cal.3d 818, 826–827, 832

People v. Maury (2003) 30 Cal.4th 342, 427–428

(Gary note: the court did not cite it, but section 1260 provides that the appellate court may modify a judgment, among several other actions. While it does not specifically say that the court can modify the judgment by having it reflect a different code section than was alleged, the above cases make it clear that specification of a code section does not necessarily control whether the defendant has been placed on adequate notice of the conduct he is accused of.)

Second Holding:

We review de novo whether the trial court’s instructions on the law were correct. When instructions are claimed to be erroneous, conflicting, or ambiguous, we ask whether jurors were reasonably likely to have construed them in a manner that violates the defendant’s rights. We look to the instructions as a whole and the entire record of trial, including the arguments of counsel.

We assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions given. Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

People v. Rogers (2006) 39 Cal.4th 826, 873

People v. Franco (2009) 180 Cal.App.4th 713, 720

Third Holding:

The defendant argues the trial evidence does not support the conclusion that the victim was particularly vulnerable. We review an aggravating factor finding for substantial evidence. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the aggravating factor beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Mendez-Torres (2025) 113 Cal.App.5th 1007, 1020

People v. Wilson (2008) 44 Cal.4th 758, 806

People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [inability to speak English can be a factor suggesting particular vulnerability]

People v. Carpenter (1997) 15 Cal.4th 312, 413 [noting vulnerability from victim being alone]

People v. Clark (1990) 50 Cal.3d 583, 638 [noting vulnerability from victim being told a false story to get the victim into a private space]

People v. Stevens (2007) 41 Cal.4th 182, 203 [noting a vulnerable position arises from exploiting a false sense of security]

Pleading, Statutory interpretation

Case 000843

Posted on by Gary McCurdy

Error and/or relief

Defendant’s two convictions for methamphetamine possession were based on the same act and one of them must therefore be reversed. Count 2 must be vacated. Because the record does not indicate defendant’s current status or the extent to which the invalid conviction may have influenced the trial court’s sentencing choices, we will remand the matter for appropriate action by the trial court.

First Holding:

A defendant may be charged in an accusatory pleading with two or more different offenses connected together in their commission and may be convicted of any number of the offenses charged, but if two alleged offenses are different statements of the same offense, both offenses may be charged based on the same act, but convictions for both cannot stand.

Authority:

PEN 954

People v. Aguayo (2022) 13 Cal.5th 974, 979

Second Holding:

The most reasonable construction of the language in Penal Code section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 650

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

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

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Due process, Pleading, Sentencing

Case 000603

Posted on by Gary McCurdy

Error and/or relief

The court sentenced the defendant under the One Strike Law (section 667.61), but relied on special circumstances that had not been alleged in the information to impose sentences of 25 years to life on several counts. Because of the lack of notice to the defendant that the specific special circumstances would be relied on, the sentences on those counts are reversed and the matter is remanded.

First Holding:

A defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for the defendant’s crimes.

Due process does not require rigid code pleading or the incantation of magic words. To satisfy due process, it is sufficient for an accusatory pleading to provide the defendant fair notice of a particular one strike sentence the prosecution is seeking and of which facts it intends to prove to support that sentence.

The ambiguity of the one strike allegation is that section 667.61 (a) provides for a 25-year-to-life sentence if the offense is committed under two or more circumstances in subdivision (e), and the information alleged only one circumstance, i.e., multiple victims. While the information notifies defendant of the 25-year-to-life term that applies under subdivision (a), that subdivision is not triggered based on the single subdivision (e) circumstance alleged.

Thus, the information is, at best, ambiguous and confusing as to whether the prosecution intended to seek terms of 25 years to life and, if so, based on which alleged circumstances, rather than 15 years to life based on the multiple victim circumstance.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 747

In re Vaquera (2024) 15 Cal.5th 706, 721, 720, 723-725