Tag Archives: Sentencing

Effective assistance of counsel, Sentencing, Standard of review

Case 000715

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Authority:

PEN 1260

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

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

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

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

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

Sixth Holding:

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

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

Authority:

PEN 2900.5(a)

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

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

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

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

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

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

Seventh Holding:

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

Authority:

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

Eighth Holding:

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

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

Authority:

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

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

Ninth Holding:

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

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

Authority:

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

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

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

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

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

Tenth Holding:

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

Authority:

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

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

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

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

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

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

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

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

Case 000710

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Authority:

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

Second Holding:

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

Authority:

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

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

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

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

Third Holding:

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

Authority:

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

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

Fourth Holding:

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

Authority:

PEN 190.2(a)

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

Fifth Holding:

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

Authority:

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

Sixth Holding:

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

Authority:

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

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

Seventh Holding:

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

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

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

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

Authority:

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

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

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

Eighth Holding:

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

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

Authority:

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

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

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

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

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

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

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

Sentencing, Sixth Amendment

Case 000709

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing the high term for certain enhancements. Because the court did so based on aggravating circumstances not found by the jury and to which the defendant did not stipulate, it violated Penal Code section 1170.1 and the defendant’s Sixth Amendment rights. Accordingly, we vacate the sentence and remand for resentencing in a manner consistent with section 1170.1.

First Holding:

If an enhancement is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except when there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence and is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court.

Authority:

PEN 1170.1(d)(1)–(2)

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

Second Holding:

Here, the jury did not find any aggravating circumstances, nor did the defendant stipulate to any. The court nevertheless concluded that there a significant number of aggravating factors supported imposing upper term sentences on the firearm enhancements. But because the court did not specify which ones, we cannot determine whether a jury necessarily would have found these factors true. Accordingly, this error is prejudicial.

Authority:

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

Equal protection, Fines and fees, Sentencing

Case 000708

Posted on by Gary McCurdy

Error and/or relief

Once the court found that the defendant had the inability to pay the court operations assessment fee or the court facilities assessment, it was error for the court to impose the fees but stay them until the defendant had the ability to pay.

First Holding:

If a defendant requests, a trial court must consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Because the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30, 31

Second Holding:

Here, the trial court found that the defendant was unable to pay the court operations and court facilities assessments, but instead of waiving these fees as a court would do for an indigent civil litigant, the court imposed and stayed the ancillary costs. Because the court in this case should have waived these fees upon its finding of an inability to pay, rather than stay their execution, we will strike the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [noting lack of justification for denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver]