The court failed to recalculate the defendant’s credit for time served on resentencing under section 1172.75.
If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.
People v. Buckhalter (2001) 26 Ca1.4th 20, 29, 37, 41
(Gary note: This is not a win, but it contains of discussion on what excess credit for time served can apply to in the context of fines or fees.)
Penal Code section 2900.5 does not apply to restitution fines or nonpunitive assessments.
At the conclusion of the defendant’s proceedings, his credit for time served exceeded the total prison commitment that was imposed. His contention that section 2900.5 requires that his excess credits be applied against the ordered restitution fine and ancillary fees raises a matter of statutory interpretation requiring this court to exercise de novo review.
People v. Carranza (2016) 6 Cal.App.5th Supp. 17, 23.
Section 2900.5(a) provides that all presentence custody credit awarded to a defendant shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence.
If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine.
PEN 2900.5
Section 2900.5 has undergone several changes, and prior to 2014 included restitution fines as subject to offset by excess days. Since 2017, the relevant language now requires that credit be applied to “any base fine,” with penalties and assessments imposed on the base fine to be reduced by the percentage the base fine has been satisfied. Excess credits cannot be applied to reduce restitution fines. Section 2900.5 does not apply to restitution fines, nor does it apply to nonpunitive assessments, such as the court operations assessment and the criminal conviction assessment imposed in this case.
PEN 2900.5
People v. Petri (2020) 45 Cal.App.5th 82, 92-93
People v. Pinon (2016) 6 Cal.App.5th 956, 967, fn. 7
People v. Rojas (2023) 95 Cal.App.5th 48, 56
The sentence on the defendant’s misdemeanor counts should have been stayed under section 654 as part of the same conduct as the felony.
Under rule 4.412(b), a defendant is estopped from challenging his or her sentence based on section 654’s prohibition of double punishment where the defendant agreed to a specified term in prison or county jail and is sentenced to that term or a shorter one. Rule 4.412(b) codifies one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.
But in this case, the defendant did not expressly agree to any sentencing irregularity in exchange for a benefit. The record shows that it was an open plea, meaning that no promises were made as to his sentence. The defendant agreed that he could be sentenced to up to four years in one case and six years in the other, but those terms represented the maximum permitted for the offenses regardless of any plea agreementg. He faced anything up to and including the maximum term allowed.
PEN 654
Cal. Rules of Court, rule 4.412(b)
People v. Hester (2000) 22 Cal.4th 290, 295
People v. Velasquez (1999) 69 Cal.App.4th 503
People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 574–575
People v. Williams (1998) 17 Cal.4th 148, 156
People v. Henderson (2021) 67 Cal.App.5th 785, 788 [an open plea is one under which there is no promise about the nature or duration of the defendant’s sentence]
In Jones, the defendant agreed to plead no contest to all charges and admit the enhancement allegations in exchange for a lid below the maximum term in sentencing. The lid was not the maximum exposure Jones would otherwise face absent the plea agreement. Rather, it restricted the sentence the trial court could impose but to a term less than Jones’s maximum exposure. It was not an open plea.
In Cole, the defendant pleaded guilty on the condition that his sentence would not exceed 25 years to life, whereas he was exposed to a term of 75 years to life but for the agreed lid. It, too, was not an open plea.
Thus, in Jones and Cole, the estoppel principle described in Hester applied, because the defendants were not permitted to complain on appeal about sentences that were limited by the terms of their pleas to something lower than the maximum that could have been imposed in the absence of their agreements.
That is not the case here, as the agreement did not specify a lid. There was simply a recognition of the maximum possible sentence that could be imposed for each count, regardless of any agreement.
(Gary note: In Jones and Cole, as stated in Jones, had they a problem with their sentences, they should have attempted to withdraw their pleas in the trial court when the sentences were imposed. Though not expressed, implicit in the court’s reliance on Cole and Jones as examples where estoppel applies is the recognition that an appeal from a denied motion to withdraw a plea requires a certificate of probable cause. For a pretty good discussion of certificates of probable cause, I have included Buttram in the Authority listed below, but it was not cited by or discussed in the opinion.
(If your client wishes to appeal after entering a plea agreement of any sort, you need to research whether a certificate of probable cause is required. If there is any chance at all that the appeal would undermine any of the terms of the plea agreement, a certificate is likely required. A common myth is that a certificate is not required to appeal any errors alleged to have occurred after the plea. Don’t fall for it. Instead, the focus is on the plea agreement itself. And the requirement of a certificate of probable cause is separate from the doctrine of estoppel addressed in this opinion. In Jones, there was no disagreement that omission of the application of section 654 created an unauthorized sentence. The obstacle was that the defendant was estopped from raising the issue because of his agreement.
(Although they’re all important, one must-read case is People v. Panizzon (1996) 13 Cal.4th 68, which I’ve listed below but was not cited by the court here. The defendant pleaded guilty with an agreement on the sentence. Unbeknownst to him at the time of his own sentencing, his co-defendants apparently received significantly lower sentences. He appealed, claiming his sentence was disproportionate. Because he had not sought and been issued a certificate of probable cause, the Supreme Court concluded his appeal should have been dismissed. His challenge to his sentence, even on constitutional grounds, was a challenge to his plea, and thus a certificate was required.
(Also note that, under section 1237.5(a), a certificate of probable cause can be issued only where the application for a certificate shows “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”
(Although it is described as a certificate of probable cause, “it is not the trial court’s responsibility to determine if there was error in the proceedings. The trial court’s sole objective is to eliminate those appeals having no possible legal basis by refusing to issue a certificate of probable cause. See People v. Holland (1978) 23 Cal.3d 77, 84, quoting People v. Warburton (1970) 7 Cal.App.3d 815, 819. Holland also reminds us (in footnote 6) that a petition for writ of mandate is the means by which one may challenge a denial of an application for certificate of probable cause. Neither Holland nor Warburton were cited in the opinion, because a certificate of probable cause was not even an issue in the case.
(Until 2022, if it appeared to the clerk of the superior court that a notice of appeal from a guilty plea required a certificate of probable cause, the clerk would mark the notice received but inoperable. To get past that hurdle, the notice would have to reflect that it is a challenge to the sentence and was not a challenge to the plea (or that it was an appeal from a guilty plea after a denial of a motion to suppress evidence on search and seizure grounds under section 1538.5. Rule 8.304(b) was amended effective 1/1/22, and now provides that “If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.” That was a vast improvement, from our defense perspective, because at least the notice of appeal initiated an appeal, albeit only on grounds not requiring a certificate.
(All of this Gary note is triggered by the court’s comment in Jones, cited by this court as distinguishable, that a defendant facing a 654 problem on an agreed-upon sentence must deal with it at the trial court level by moving to withdraw his or her plea timely. So this Gary note is really dealing with sub-sub-nonissues that I think you should nonetheless be aware of. Think of this lengthy aside as getting more for your money. Money? We ain’t got no money! We don’t need no money. You don’t have to show me any stinking money. Oops, sorry, got carried away a bit there.)
Authority:
People v. Jones (2013) 217 Cal.App.4th 735, 739
People v. Cole (2001) 88 Cal.App.4th 850, 856-858
People v. Hester (2000) 22 Cal.4th 290,
People v. Buttram (2003) 30 Cal.4th 773,
People v. Panizzon (1996) 13 Cal.4th 68
People v. Holland (1978) 23 Cal.3d 77, 84
People v. Warburton (1970) 7 Cal.App.3d 815, 819
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.
PEN 654
People v. Assad (2010) 189 Cal.App.4th 187, 200
People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005
As there was no discussion at sentencing of section 654, we must affirm the sentence if an implied finding that section 654 does not apply is supported by substantial evidence. The record demonstrate that the defendant committed the offenses the misdemeanor cases with the objective to steal the contents of his victims’ vehicles. There is no evidence to support a finding that he formed a separate intent and objective for each offense for which he was sentenced. Accordingly, the sentences on the misdemeanor counts must be stayed.
People v. Osband (1996) 13 Cal.4th 622, 730–731
People v. Coleman (1989) 48 Cal.3d 112, 162
Separate restitution fines may be imposed for each case that are not consolidated, even if resolved jointly by plea bargain. Defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines. This straightforward application of the requirement that fines be imposed in every case serves the purpose of the state Restitution Fund, as well as the rehabilitative and deterrent functions of restitution fines.
People v. Soria (2010) 48 Cal.4th 58, 64-66
We must reverse the defendant’s conviction under section 4501(a) because it duplicates his conviction under section 4500.
The defendant was convicted of section 4500 and 4501. In essence, section 4500 provides that any person serving a life sentence who, with malice aforethought, commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by death or life without the possibility of parole. If the victim does not die within a year and a day, the punishment is life without the possibility of parole for nine years.
In essence, section 4501 provides that, except as provided in section 4500, a prisoner who commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by two, four, or six years, to be served consecutively.
PEN 4500
PEN 4501
Section 954 allows prosecutors to charge different statements of the same offense, but does not allow a defendant to be convicted for multiple statements of the same offense. A defendant cannot be convicted of two offenses if one is necessarily included in the other or if the legislature intended to define a single offense that can be committed multiple ways–in other words, if the convictions are different statements of the same offense.
PEN 954
People v. Vidana (2016) 1 Cal.5th 632, 648-650
There are two tests to determine whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test.
Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.
Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.
People v. Reed (2006) 38 Cal.4th 1224, 1227–1228
To determine if two convictions run afoul of section 954, we consider the elements as well as legislative intent. If one is a necessarily included offense of the other, they are not different offenses. Even if the elements differ, two offenses can be essentially the same if legislative intent shows this is so. We consider the text and structure of the statutes, the elements of the offenses, the punishments, the legislative history, and the historical context of the statutes’ enactment.
People v. Vidana (2016) 1 Cal.5th 632, 637-638, 648
People v. Aguayo (2022) 13 Cal.5th 974, 982–983
A defendant may be convicted only of section section 4501(a) or of section 4500, but not both for the same conduct. We direct the trial court to reverse the defendant’s conviction under section 4501(a) and to strike the sentence and any fees imposed in connection with that charge.
People v. Nava (2007) 107 Cal.App.5th 624, 626
The approved plea agreement provided for dismissal of count II, but that count was not dismissed at sentencing. Further, the court failed to impose a suspended parole revocation fine matching the amount imposed as the restitution fine.
The judgment is modified to dismiss count II and impose a $300 parole revocation fine, which shall be suspended unless parole is revoked. As modified, the judgment is affirmed. The trial court is directed to amend the sentencing minute order to reflect this modification. However, because the abstract of judgment already reflects the $300 suspended parole revocation fine, no amendment of that document is necessary.
When a guilty or no contest plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.
People v. Panizzon (1996) 13 Cal.4th 68, 80
When the trial court imposes a sentence that includes a period of parole, and it also imposes a restitution fine, a matching suspended parole revocation fine must be imposed. Omission of a mandatory parole revocation fine is an unauthorized sentence that we can correct on appeal.
PEN 1202.45
People v. Smith (2001) 24 Cal.4th 849, 853
This appeal is from the resentencing under section 1172.75. The restitution fine must be stricken, as now it was imposed more than 10 years ago. There are errors in the abstract of judgment that must be corrected.
The trial court originally imposed the restitution fine in August 2015. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated. While the court reimposed the $4,000 restitution fine less than 10 years after the original sentencing, 10 years have passed since the court originally imposed the $4,000 restitution fine, and thus the balance is now unenforceable and uncollectible. We will therefore strike the restitution fine.
PEN 1465.9(d)
People v. Kopp (2025) 19 Cal.5th 1, 17
People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on a different issue Mar. 11, 2026, S295038
The abstract lists the prior prison term enhancement as stayed, when in fact that enhancement was stricken by the trial court. In addition, the four-month sentence on count three is listed as concurrent when it should be listed as consecutive. We will therefore order amendment of the abstract to correct these errors
People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral pronouncement of judgment ordinarily controls]
The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.
Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.
The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.
A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.
PEN 1170(b)
People v. Lynch (2024) 16 Cal.5th 730, 757
People v. Wiley (2025) 17 Cal.5th 1069, 1078
Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.
Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.
Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.
People v. Wiley (2025) 17 Cal.5th 1069, 1082
Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.
This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination. A defendant must also be advised of the penal consequences of the admission.
If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.
People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127
People v. Mitchell (2026) 19 Cal.5th 729, 745–746
Boykin v. Alabama (1969) 395 U.S. 238
In re Tahl (1969) 1 Cal.3d 122
People v. Cross (2015) 61 Cal.4th 164, 170
People v. Mosby (2004) 33 Cal.4th 353, 361–365
We find sufficient evidence to support the conclusion that the defendant violated the conditions of his probation. But in light of the materially inaccurate information that appears to have influenced the defendant’s sentence, we cannot conclude that the superior court exercised informed discretion in imposing his sentence. Remanded for resentencing.
A probation violation is provable by a preponderance of the evidence. We review factual findings in this respect for substantial evidence. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In conducting this inquiry, we give full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
People v. Rodriguez (1990) 51 Cal.3d 437, 441
People v. Butcher (2016) 247 Cal.App.4th 310, 318
People v. Kurey (2001) 88 Cal.App.4th 840, 848
People v. Mumin (2023) 15 Cal.5th 176, 198
There may be situations in which a prisoner is entitled to a new sentencing hearing, but only where he shows that: (1) material false information was (2) relied upon by the sentencing judge, and (3) the defendant had no opportunity at the time of sentencing to correct such false information. The probation officer’s report stated that the defendant was found in violation of probation for, among other things, using illicit drugs. In fact, he was not found to have used drugs, and he was not found in violation for using drugs.
The record here reflects that the court relied on that materially false information. When defense counsel attempted to bring it to the court’s attention that the statement was untrue, the court gave no feedback or acknowledgement and simply proceeded with sentencing, in contrast to an earlier correction on a different misunderstanding brought to the court’s attention by the prosecutor, whom the court thanked for bringing the correction to the court’s attention.
Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. On this record, which appears to show that the sentencing court believed that the drug-use allegations had been proven, we cannot be confident that the court exercised informed discretion.
In re Beal (1975) 46 Cal.App.3d 94, 99–100
People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8
A court’s alleged reliance on inaccurate information that appears to have contributed to the defendant’s sentence implicates the federal constitutional guarantee of due process. We evaluate such claims under the standard set forth in Chapman. This stricter standard of review requires reversal unless the error is harmless beyond a reasonable doubt.
People v. Eckley (2004) 123 Cal.App.4th 1072, 1080
Chapman v. California (1967) 386 U.S. 18, 24
People v. Schuller (2023) 15 Cal.5th 237, 251
In revoking and terminating probation, trial court is entitled to consider defendant’s performance on probation from the time it was originally granted until it was reinstated for the final time.
People v. Black (2009) 176 Cal.App.4th 145, 151
Insufficient evidence supported the jury’s gang predicate offense findings, and we therefore reverse the true findings on the gang and gang firearm enhancements, as well as the gang special circumstance. We reject the defendant’s other arguments.
The role of the reviewing court in evaluating sufficiency of the evidence claims is a limited one. We 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 defendant guilty beyond a reasonable doubt.
The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.
When there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground.
People v. Ghobrial (2018) 5 Cal.5th 250, 277–278
To prove the gang allegations true beyond a reasonable doubt, the prosecution had to show (1) the defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members.
A criminal street gang is defined as (1) an ongoing, organized association or group of three or more persons, whether formal or informal, (2) having as one of its primary activities the commission of one or more of the enumerated criminal acts, (3) having a common name or common identifying sign or symbol, and (4) whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.
A pattern of criminal gang activity means (1) the commission of or conviction of, two or more enumerated criminal acts, (2) provided at least one of these offenses occurred after September 26, 1988, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, (3) the offenses were committed on separate occasions by two or more members, (4) the offenses commonly benefited a criminal street gang, and (5) the common benefit from the offenses is more than reputational.
The acts making up the pattern of gang activity are commonly referred to as predicate offenses.
Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential[,] current or previous witness or informant. The charged offenses cannot be used to satisfy the gang allegation requirements.
PEN 186.22(b)(1), (e)(1), (e)(2), (f)
People v. Hin (2025) 17 Cal.5th 401, 460
People v. Shively (2025) 111 Cal.App.5th 460, 465-466
(Gary note: The balance of this aspect of the opinion deals with the specifics of the evidence and inferences to be drawn, and the appellate court determined that the evidence in support of two of the three predicate offenses alleged by the prosecution were not supported by sufficient evidence. The court then reversed the jury’s true finding on the special circumstance gang allegation under section 190.2(a)(22) and the true findings on the gang enhancements charged under sections 186.22 (b)(1)(C) and 12022.53(d) and (e). It remanded the matter to the trial court for resentencing.
(The defendant unsuccessfully raised many other issues. I have included several as holdings (Third through Eighth) because they do state important legal principles even though unrelated to the sufficiency of evidence successful argument.)
Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. Prosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. When attacking the prosecutor’s remarks to the jury, the defendant must show that, in the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.
A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘ “the trial with unfairness as to make the resulting conviction a denial of due process. Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. he focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.
People v. Centeno (2014) 60 Cal.4th 659, 666
People v. Leon (2015) 61 Cal.4th 569, 606
People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528
A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made a timely and specific objection at trial and requested an admonition. The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. Consistent with that purpose, a court will excuse a defendant’s failure to object only if an objection would have been futile, or if an admonition would not have mitigated the harm caused by the misconduct.
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853
The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. However, the trial court should only give instructions supported by substantial evidence.
Evidence is substantial’ for this purpose if it is sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. At the same time, instructions not supported by substantial evidence should not be given. It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.
People v. Merritt (2017) 2 Cal.5th 819, 824
People v. Townsel (2016) 63 Cal.4th 25, 58
People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1950
In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. A claim of instructional error is reviewed de novo. We independently review the wording of a jury instruction to assess whether the instruction accurately states the law. The test is whether there is a reasonable likelihood that the jury understood the charge in a manner that violated the defendant’s rights.
Further, the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. Moreover, any theoretical possibility of confusion may be diminished by the parties’ closing arguments. Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.
People v. Martinez (2010) 47 Cal.4th 911, 953
People v. Cole (2004) 33 Cal.4th 1158, 1210
People v. Posey (2004) 32 Cal.4th 193, 218
People v. Davison (1995) 32 Cal.App.4th 206, 212
People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192
The Watson standard of prejudice (i.e., the error is reversible when there is a reasonable probability defendant would have obtained a more favorable result in the absence of the error) applies to an instruction that misdirects the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions. In contrast, the Chapman standard of review (i.e., error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained) applies when an instruction improperly describes or omits an element of the offense.
People v. Campbell (2020) 51 Cal.App.5th 463, 493
People v. Watson (1956) 46 Cal.2d 818, 836
Chapman v. California (1967) 386 U.S. 18
When a trial court orally misstates instructions that are legally correct in written form, the jury is presumed to be guided by the written instructions based upon copies of the instructions received for deliberations.
People v. Osband (1996) 13 Cal.4th 622, 687
People v. Mills (2010) 48 Cal.4th 158, 200–201 [written instructions control over verbal instructions]
People v. Wilson (2008) 44 Cal.4th 758, 803 [same]
People v. Mills (2012) 55 Cal.4th 663, 680 [we view the record as a whole, and consider the instructions in context]
The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a restitution fine, a stayed parole revocation fine, a court operations assessment, and a criminal conviction assessment. The abstract of judgment must be corrected.
Where there is a discrepancy between the oral imposition of sentence on the one hand and the minutes and abstract of judgment on the other, the oral judgment controls. An abstract of judgment must be corrected if it does not reflect the oral judgment accurately.
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389
The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a $300 restitution fine, a $300 stayed parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment.
PEN 1202.4
PEN 1202.45
PEN 1465.8
GOV 70373
We decline to remand the matter because no party objected to the trial court’s failure to impose fines and fees at sentencing. All claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. Appellate courts may not correct a discretionary sentencing choice if the People failed to object at sentencing.
A restitution fine under section 1202.4 is a discretionary sentencing choice. And by waiving any objection to the restitution fine, the People also effectively waive any objection to the parole revocation fine, because the parole revocation fine must match the restitution fine as a matter of law.
As to the court operations assessment and the criminal conviction assessment, neither party asserts that the trial court’s failure to impose these fees was unauthorized or reflects an obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings.
Absent such an argument, we decline to disturb the judgment.
People v. Smith (2001) 24 Cal.4th 849, 852-853
People v. Talibdeen (2002) 27 Cal.4th 1151, 1153
People v. Tillman (2000) 22 Cal.4th 300, 303
People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case]
People v. Kopp (2025) 19 Cal.5th 1, 30 [equal protection principles permit trial courts to waive fees under sec. 1465.8 and Gov. Code, sec. 70373, upon request, where defendant lacks ability to pay]
ADD AUTHORITIES HERE
On retrial of the gang allegations in light of the changes made by AB 333 since the original conviction, the court misinstructed the jury on the relationship between the gang’s predicate offenses and its organizational structure, its primary activities, or its common goals and principles. We reverse and remand for a new trial on the gang enhancements.
We review instructional error claims under an independent or de novo standard of review.
People v. Posey (2004) 32 Cal.4th 193, 218
A trial court has a sua sponte duty to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt.
Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.
The beyond-a-reasonable-doubt standard requires the beneficiary of a federal constitutional error–the People–to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the ensuing verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.
People v. Mil (2012) 53 Cal.4th 400, 409-410
Chapman v. California (1967) 386 U.S. 18, 24
People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]
People v. Cutting (2019) 42 Cal.App.5th 344, 349
People v. Pearson (2013) 56 Cal.4th 393, 463
The California Supreme Court issued its decision in Clark in February 2024. The jury reached its verdicts in the instant case several months later. The CALCRIM instructions defining the gang enhancement allegations and special circumstances were amended a month later to add two sentences, as required by Clark:
“As used here, members collectively engage in or have engaged in a pattern of criminal gang activity when the crimes that make up the pattern of criminal gang activity can be connected to the gang as a whole. Collective engagement requires a connection between the crimes and the gang’s organizational structure or manner of governance, its primary activities, or its common goals and principles.”
The trial court used the older versions of CALCRIM No. 1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder special circumstance), and therefore did not instruct the jury on the required organizational nexus between the predicate crimes and the gang as interpreted and stated in Clark. This was plainly an instructional error committed by the trial court.
People v. Clark (2024) 15 Cal.5th 743
Although we have found that there was sufficient evidence to establish the nexus between the gang as an organization and the predicate offenses—a very low threshold—that is not the same as finding that failure to instruct on this element was harmless beyond a reasonable doubt.
In order to find the trial court’s instructional error harmless beyond a reasonable doubt, we must conclude that there is no reasonable possibility that the jury could have rendered different verdicts on the gang allegation and the gang-murder special circumstance absent the error. Because of the narrow focus of the trial, and because of the recent changes to the law, the importance of the People establishing the validity of the gang’s predicate offenses played an outsized role in these proceedings. We are not certain what 12 jurors might have done had they been properly instructed.
Because of the anomalies in this case, we must reverse the jury’s true findings on the gang enhancements because we cannot find that the instructional error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.
People v. Pearson (2013) 56 Cal.4th 393, 463
People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]
The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. The abstract must be corrected.
The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. When resentencing results in a 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 new sentence. We will therefore direct the trial court to amend the abstract of judgment to reflect the defendant’s current custody and conduct credit.
People v. Buckhalter (2001) 26 Cal.4th 20, 23
(Gary note: It is not clear from the wording of the opinion whether absence of credit was because the trial court did not update the credits on resentence, or the clerk simply did not update the abstract of judgment to reflect the court ordered. Though the appellate court cited Buckhalter on the duty to recalculate, it cited no authority for correcting an erroneous abstract of judgment. For your convenience, I have listed below several cases the court could have drawn from as authority for an appellate court to order correction of an abstract of judgment.)
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