Tag Archives: Sentencing

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b), unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Second Holding:

Any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Authority:

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

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, trial courts may impose a sentence that exceeds 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.

Authority:

PEN 1170(b)(2)

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

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

Fourth Holding:

Section 1170(b)(3) provides that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

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

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

Erlinger v. United States (2024) 602 U.S. 821, 837

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000538

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it contains several errors, including a representation that the court imposed a $300 restitution, contrary to the actual order.

First Holding:

The abstract of judgment reflects a $300 restitution fine under section 1202.4(b) and a $300 parole revocation fine under section 1202.45 that were not orally imposed during the sentencing hearing. Under section 1202.4(b), the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Under section 1202.45, if a defendant’s sentence includes a period of parole or the defendant is subject to post-release community supervision or mandatory supervision, the court shall impose an additional fine in the same amount as the section 1202.4 fine.

The People did not object to the court’s failure to orally impose these fines. Because such fines are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we direct those fines to be stricken.

Authority:

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

Second Holding:

The abstract of judgment reflects that the restitution fine was imposed, but it was not. The oral pronouncement controls, so we amend the abstract of judgment accordingly.

Authority:

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000537

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to give the prosecution an opportunity to prove that the 2011 prior strike conviction alleged in the information remains a strike under the current version of section 186.22, criminal gang activity.

First Holding:

The defendant was convicted in 2011 of carrying a loaded firearm with an enhancement that the crime was committed for the benefit of a gang. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1). Thus, the prior conviction was alleged as a strike, resulting in a doubled sentence.

Authority:

PEN 186.22

PEN 667(d)(1)

PEN 1192.7(c)(28)

People v. Briceno (2004) 34 Cal.4th 451, 456

Second Holding:

AB 333 (2021–2022 Reg. Sess.), effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a five-year sentence enhancement. Current law applies in determining whether they qualify as prior serious felony convictions. The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

Discretion, Sentencing

Case 000535 and Case 000536

Posted on by Gary McCurdy

Error and/or relief

We vacate the conviction for involuntary manslaughter, as it is a lesser included offense of the murder that she was also convicted of in a separate count. Section 654 requires stay of either the murder count or the child abuse count, because they were based on the same act. We remand to the trial court for it to determine which of the two sentences should be stayed.

[Gary note: There were two defendants, and the opinions, though separate, were virtually material, so I have summarize both in this single summary]

First Holding:

We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

For Victim A’s death, the jury convicted the defendant of both second degree murder (count 1) and involuntary manslaughter (count 2). The parties agree, as do we, that, because substantial evidence supports the murder conviction, the involuntary manslaughter conviction must be vacated. A defendant cannot be convicted of both an offense and a necessarily lesser included offense based upon the commission of an identical act. In such a situation, the lesser included offense must be reversed. Involuntary manslaughter is a lesser included offense of murder. The defendant’s convictions were based on the same act. Accordingly, the conviction in count 2 must be vacated.

Authority:

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

People v. Munoz (2019) 31 Cal.App.5th 143, 153

Third Holding:

For the child abuse conviction in count 3 involving Victim A, the defendant received a sentence of four years in prison, which was to run concurrently to her indeterminate sentence for Victim A’s murder in count 1. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed. Because the same act supports the convictions in counts 1 and 3, section 654 prohibits multiple punishment and requires that execution of sentence be stayed on one of those counts.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Fourth Holding:

Under amended section 654, the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. At sentencing in this matter, the trial court imposed a concurrent four-year term on count 3. Although the court’s decision to run the felony child abuse term concurrently suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine in the first instance which sentence must be stayed under section 654.

Authority:

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