Tag Archives: Sentencing

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. In the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Fourth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Buycks (2018) 5 Cal.5th 857, 893

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000884

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for resentencing under Penal Code section 1172.6 at the prima facie stage on the ground that the record of conviction showed the defendant is ineligible for resentencing. The trial court exceeded the limited scope of review permitted at the prima facie stage under section 1172.6 and engaged in fact finding that should have been reserved for the evidentiary stage.

First Holding:

Under section 1172.6 the prima facie inquiry is limited. While a court may consider whether the record of conviction refutes eligibility allegations at this stage, a trial court should not engage in fact finding involving the weighing of evidence or the exercise of discretion. Indeed, at the prima facie stage, the strength of the evidence in the record is not material.

Instead, at the prima facie stage the question in applying section 1172.6 is not whether it is likely that the defendant was convicted of murder on a now-invalid grounds but whether the court’s jury instructions or other aspect of the record of conviction foreclose that possibility that possibility as a matter of law.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 562, 564, 567 fn. 10

People v. Lewis (2021) 11 Cal.5th 952, 972

People v. Curiel (2023) 15 Cal.5th 433, 470

Second Holding:

Although the verdict and jury instructions on the special circumstance found true by the jury showed that two of the three requirements for direct aiding and abetting liability were satisfied, the record of conviction did not show that the final requirement was satisfied and, thus, did not establish direct aiding and abetting liability as a matter of law.

In addition, while the special circumstance finding suggests that the jury found the defendant guilty of murder based on direct aiding and abetting, which remains a valid theory, it is possible that the jury found him guilty based on conspiracy and a natural and probable consequences theory, which is now invalid.

Under the strict test that the Supreme Court has interpreted section 1172.6 to impose, the record of conviction does not conclusively refute the defendant’s allegations that he was convicted of a now-invalid theory of murder, and the trial court should have proceeded beyond the prima facie stage to an evidentiary hearing to determine whether in fact he was convicted based on a now-invalid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 470

Third Holding:

We review trial court orders at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

in determining whether a prima facie case has been shown, trial courts may examine jury instructions, the verdict, and other parts of the record of conviction to determine whether that record refutes the petition’s allegations. But at the prima facia stage, hearing transcripts may not be used to prove disputed facts. If the record of conviction contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner. However, the record of conviction must establish conclusively such facts.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 972

People v. Patton (2025) 17 Cal.5th 549, 568

People v. Strong (2022) 13 Cal.5th 698, 708

Fifth Holding:

To establish liability for murder under the theory of direct aiding and abetting, the prosecution must show that the defendant [1] aided or encouraged the commission of the murder [2] with knowledge of the unlawful purpose of the perpetrator and [3] with the intent or purpose of committing, encouraging, or facilitating its commission. The trial court’s special circumstance finding established only two of these requirements.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 466

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case 000883

Posted on by Gary McCurdy

Error and/or relief

We remand for the limited purpose of allowing the trial court to conduct a hearing on whether to impose the ancillary costs in light of Kopp. The minute order and abstracts of judgment do not reflect the order of the court and must be corrected following that hearing.

First Holding:

At the sentencing hearing, the court did not mention, much less impose, fees under either section 1465.8 or Government Code section 70373. As for restitution fines, defense counsel requested the court consider staying any fines, and the court stated that it was striking the restitution fine and the parole revocation restitution fine, indicating that if that was found to be error on appeal, the court’s intent would be to impose the minimum $300 for both fines.

The minute order, however, reflects that the court ordered the fines in thh amount of $10,000. It then stated that the amounts were suspended. The minute order also included a court operations fee of $80 and a criminal conviction fee of $60. The abstract of judgment did not reflect the restitution fines, but did reflect the other two fees.

The judgment is controlled by the court’s oral pronouncements.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388 [The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.]

Second Holding:

Section 1465.8(a)(1) provides, in part: “To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense.” Government Code section 70373(a)(1) provides, in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.”

The trial court was required to impose these ancillary costs unless it granted defendant fee waivers. The court took neither action at the sentencing hearing. This was error.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 29-30

Third Holding:

Although the omission of mandatory assessments may be corrected for the first time on appeal, if we were to do that, the fees would be imposed without defendant having had the opportunity to request they be waived.

Instead, we will remand the matter for the trial court to correct the minutes from the sentencing hearing and to determine whether to impose the court operations fee and the criminal conviction fee consistent with Kopp.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530

Fourth Holding:

The People did not object when the trial court struck the restitution fine and the parole revocation restitution fine.

When a party fails to object, at the time of sentencing, to a trial court’s decision regarding the imposition of restitution fines, the waiver doctrine precludes appellate relief.

The court struck the restitution fine at the sentencing hearing. Thus, to the extent the court’s minutes reflect otherwise, the minutes should be modified to strike the restitution fines.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

People v. Frederickson (2020) 8 Cal.5th 963, 1027

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]

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000879

Posted on by Gary McCurdy

Error and/or relief

We reverse the jury’s true finding on the enhancement alleged under section 12022.7(b). We vacate the sentence and remand the matter for resentencing.

First Holding:

In assessing a claim of insufficiency of the evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Reversal on insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 66

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

Section 12022.7(b) provides that any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

Authority:

PEN 12022.7(b)

Third Holding:

A victim is comatose, for purposes of the enhancement, if he is in a state resembling a coma characterized by profound unconsciousness. Here, the evidence established that the victim was rendered unresponsive as a result of the attack and died from injuries to his brain. Respondent concedes that the evidence fails to prove that the victim was ever comatose.

Authority:

People v. Cunningham (2016) 244 Cal.App.4th 1049, 1054

Fourth Holding:

The parties agree that appellant is entitled to resentencing, at which the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Amelioration, Sentencing, Standard of review

Case 000877

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition under section 1172.6 by construing the jury’s verdicts on two firearm enhancements as reflecting a finding that the defendant killed the victim by personally discharging a firearm.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017-2018 Reg. Sess.) and altered the substantive law of murder in two areas.

First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189(e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

SB 1437

PEN 189

PEN 188

People v. Curiel (2023) 15 Cal.5th 433, 448

People v. Morris (2026) 19 Cal.5th 671, 682 [discussing narrowed scope of the felony-murder rule]

Second Holding:

SB 1437 also created a mechanism for defendants convicted under now-invalid theories of murder to seek resentencing. Upon receipt of a petition containing the required information, the trial court must appoint counsel for the defendant if requested, hold a hearing, and determine if the petition has made a prima facie case for relief.

If a petitioner demonstrates a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of murder under a still-valid theory.

In deciding whether a petitioner has demonstrated a prima facie case, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

At this stage, a court should not reject the petitioner’s factual allegations on credibility grounds

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 556, 558, 563

Third Holding:

If the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Where facts from the record of conviction are undisputed, accepting them over contrary legal allegations that are merely conclusory is not factfinding involving the weighing of evidence or the exercise of discretion.

At this preliminary stage, denial of a section 1172.6 petition is proper only if the petition and record in the case establish conclusively that the defendant is ineligible for relief.

Whether the record of conviction shows the petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question that we review de novo.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 565-566

People v. Lopez (2026) 19 Cal.5th 639, 658

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

The People concede that the trial court erred in relying on the true findings on the firearm enhancements as a basis to deny relief at the prima facie stage.

We accept this concession because, contrary to the trial court’s reasoning, the verdicts on the firearm enhancements do not establish that the jury found the defendant guilty as the actual killer. The trial court instructed the jury that it could find the enhancements true if the defendant intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it.

Nothing in this instruction thus required the jury to find that the defendant himself shot and killed the victim.

The People contend that the trial court’s error was harmless in light of a record of conviction that shows the defendant was prosecuted and found guilty as the actual killer. They nevertheless concede that the defendant is entitled to an opportunity to amend his petition. We agree that remand is appropriate.

Patton held that a petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing. The Patton court remanded the matter to allow that defendant to plead additional facts in support of a prima facie case for relief.

We remand to give the defendant an opportunity to plead facts he believes will demonstrate a prima facie case for relief.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569-570

Appellate Principles, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000876

Posted on by Gary McCurdy

Error and/or relief

We modify the order of probation to eliminate the provision that the defendant pay the costs of mental health treatment as a condition of probation and otherwise affirm the judgment.

First Holding:

We review such constitutional challenges to conditions of probation de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Second Holding:

A court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. In imposing such conditions, a court may require a defendant to complete a residential treatment program. A probation officer, however, may only oversee and enforce the trial court’s orders. A probation officer may not create conditions not expressly authorized by the court.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Third Holding:

The defendant raises an argument for the first time in the reply brief. The issue is forfeited for not raising it earlier.

Authority:

People v. Hart (2025) 113 Cal.App.5th 1099, 1106

Fourth Holding:

A trial court may order a defendant who is granted probation to pay the reasonable associated costs. To do so, the court must make an inquiry and determination regarding the defendant’s ability to pay, and issue a separate order for the payment of such costs.

But the payment of such costs cannot be made a condition of probation. The record before us does not show the court inquired into the defendant’s ability to pay before including the provision that she pay these costs, or that it issued a separate order for payment of these costs. Accordingly, condition 7 must be modified to eliminate the requirement that the defenrant pay the costs of treatment associated with this condition.

Authority:

People v. Hall (2002) 103 Cal.App.4th 889, 892

Brown v. Superior Court (2002) 101Cal.App.4th 313, 321-322

People v. Hart (1998) 65 Cal.App.4th 902, 907

Appellate Principles, Elements of crime, Juveniles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000875

Posted on by Gary McCurdy

Error and/or relief

We reverse four of the five counts of evading the police under Vehicle Code section 2800.3 and remand for a new disposition order.

The minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

First Holding:

Dispositional orders in juvenile matters are entrusted to the discretion of the juvenile court. Failure to object to a discretionary dispositional choice forfeits the claim on appeal.

But the forfeiture rule does not apply if the disposition is unauthorized; that is, if it could not lawfully be imposed under any circumstance in the particular case. In those situations, the unauthorized disposition presents a pure question of law.

The unauthorized sentence concept is a narrow exception to the general requirement that only preserved claims are reviewable on appeal. And while reviewing courts have the discretion to consider forfeited claims on appeal, they should do so rarely, keeping in mind that the forfeiture rule exists to encourage prompt detection and correction of error and to promote the state’s interest in finality of judgments.

Authority:

In re Greg F. (2012) 55 Cal.4th 393, 411

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351, 354

In re Sheena K. (2007) 40 Cal.4th 875, 885

People v. Fisher (2021) 71 Cal.App.5th 745, 751-752

In re H.D. (2024) 99 Cal.App.5th 814, 817-818

People v. Anderson (2020) 9 Cal.5th 946, 962 [the unauthorized sentence exception is designed to provide relief from forfeiture for obvious legal errors at sentencing such as a sentence in excess of the statutory maximum]

Second Holding:

Further, we disagree with the minor’s contention that his constitutional challenges to the disposition present pure legal questions. His challenges ask us to consider his self-evident lesser culpability relative to an older juvenile. But culpability determinations are for the trier of fact, not an appellate court.

Authority:

People v. Vang (2010) 184 Cal.App.4th 912, 915-916

Third Holding:

Finally, the minor contends we should consider his forfeited claims because his trial counsel provided ineffective assistance by failing to raise them. But trial counsel is not ineffective for failing to raise novel claims like the ones here.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [to forestall a claim of ineffective assistance of counsel, reviewing courts can exercise their discretion to reach the merits of the claim].

In re Grinder (2025) 114 Cal.App.5th 845, 871-872

People v. Foster (2003) 111 Cal.App.4th 379, 385.

Fourth Holding:

We decline to exercise any discretion we might have to consider these forfeited claims because doing so (1) would be unfair to the People and the juvenile court, which had no opportunity to address the claims below, and (2) would undermine both the state’s interest in finality of judgments and litigants’ incentive to seek correction of error in the first instance.

Further, we should not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. Accordingly, the minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

Authority:

In re M.H. (2016) 1 Cal.App.5th 699, 713-714

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351,

Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31

Fifth Holding:

Penal Code section 26 provides, in relevant part, that all persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ….

Authority:

PEN 26

Sixth Holding:

Clear proof means clear and convincing evidence. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact.

We review the entire record in the light most favorable to the judgment and affirm the juvenile court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. In determining capacity the juvenile court must consider the child’s age, experience, and understanding.

A minor’s knowledge of his act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Authority:

In re Joseph H. (2015) 237 Cal.App.4th 517, 538-539

Seventh Holding:

While the language of the statute refers to knowledge of wrongfulness, the question is whether a minor appreciates the wrongfulness of their conduct. As minors approach the age of 14, they are increasingly likely to appreciate the wrongfulness of their acts.

Authority:

In re Manuel L. (1994) 7 Cal.4th 229, 232

People v. Cottone (2013) 57 Cal.4th 269, 281

In re J.E. (2020) 54 Cal.App.5th 309, 314

Eighth Holding:

Cases are not authority for propositions not considered.

Authority:

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11

Ninth Holding:

Four of the five Vehicle Code section 2800.3 true findings must be stricken. A charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an act of violence against the person.

Authority:

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159

Tenth Holding:

Vehicle Code section 2800.3 provides that whenever willful flight or attempt to elude a pursuing peace officer in violation of section 2800.1 proximately causes serious bodily injury or death, the person driving the pursued vehicle shall be punished. Felony evading, as defined by the Legislature, in Vehicle Code section 2800.3, is not a crime of violence.

Under Wilkoff and Garcia there can be only one Vehicle Code section 2800.3 true finding here. Thus, four of the five Vehicle Code section 2800.3 true findings must be stricken.

Authority:

VEH 2800.3

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159, 1163

People v. Sanchez (2001) 86 Cal.App.4th 970, 973-974 [Because dispositive elements of Vehicle Code section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life.]

Eleventh Holding:

It is improper to raise new contentions in a reply brief. Further, appellate arguments may be deemed forfeited when they do not contain meaningful analysis and citation to supporting authority.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 642-643

People v. Stanley (1995) 10 Cal.4th 764, 793

Twelfth Holding:

In criminal court, when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The same principle applies in juvenile court. Since we strike four of the juvenile court’s Vehicle Code section 2800.3 true findings, a new disposition is required.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140 [every time a ward appears for disposition, the court may consider the minor’s entire history and the order must be all encompassing]

Amelioration, Elements of crime, Sentencing

Case 000873

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to sustain the section 190.2 gang special circumstance.

First Holding:

Section 190.2(a)(22) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in section 186.22(f), and the murder was carried out to further the activities of the criminal street gang.

Proof of the existence of a criminal street gang as defined in section 186.22(f) is a prerequisite to proving the gang-murder special circumstance.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 565

People v. Rodriguez (2022) 75 Cal.App.5th 816, 823

Second Holding:

Prior to the defendant’s trial, the Legislature enacted AB 333, which made multiple changes to section 186.22. The changes, as incorporated into the gang-murder special circumstance, retroactively apply to cases that are not yet final.

Following AB 333, section 186.22(f) defines a criminal street gang as an ongoing, organized association or group of three or more persons having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

Section 186.22(e) defines pattern of criminal gang activity as committing offenses that benefit a gang in a way that is more than reputational.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 566-567

In re A.M. (2024) 102 Cal.App.5th 557, 569

Third Holding:

The prosecution’s gang expert did not testify the murders the defendant committed benefited his gang in any way that was more than reputational. The evidence was thus insufficient under the law as amended after trial by AB 333 to sustain the special circumstance finding under section 190.2. Accordingly, we reverse the gang special circumstance findings and remand for retrial of the allegations at the option of the prosecution.

(Gary note: It is unclear to me whether the trial was held before AB 333 or after. In what I have shown as Second Holding, the court states, “Prior to [defendant’s] trial, the Legislature enacted Assembly Bill 333 ….” And in a portion that I did not set out in this summary, the opinion says, “At sentencing, the trial court dismissed the section 186.22 gang enhancement because the People did not prove the gang allegation under the new statutory requirements of AB 333, in which they have to show that the benefit to the gang is more than reputational.   The court declined the defense’s request to dismiss the section 190.2 gang special circumstance.” So clearly the superior court was aware of AB 333 as of the time of sentencing, though that doesn’t say anything about when the trial was.

(And in what I have set out as the Third Holding, the court states, “The evidence was thus insufficient under the law as amended after trial by Assembly Bill 333 to sustain the special circumstance finding under section 190.2.” If the trial was held before AB 333 was enacted, then the appellate decision makes sense in relying on Hin to permit retrial. The notice of appeal was filed in the middle of 2023. AB 333 went into effect 1/2/2022, nearly a year and a half before the notice of appeal was filed. So I am a little puzzled on whether AB 333 was in place at the time of trial. If so, then I wonder whether Hin is the best authority, as it seems to find significant that the change in the law came after the trial in Hin. Life’s little mysteries, eh? Maybe (likely, in fact) I’m missing something in the opinion that would clarify the timing for me.)

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 580

In re A.M. (2024) 102 Cal.App.5th 557, 570

People v. Hin (2025) 17 Cal.5th 401, 464 [retrial is permitted where the appellate court finds only that the evidence was insufficient under the law as amended posttrial by Assembly Bill 333]

Sentencing, Standard of review

Case 000871

Posted on by Gary McCurdy

Error and/or relief

The court was not statutorily authorized to impose a section 12022.53(c) enhancement for a section 26100 offense (discharging a firearm from a motor vehicle). We remand the case to the trial court for resentencing.

First Holding:

We review the trial court’s sentencing decisions for abuse of discretion. In deciding whether the trial court has abused its discretion, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Second Holding:

Section 12022.53, in relevant part, sets forth escalating additional and consecutive penalties, beyond that imposed for a substantive crime, for the use of a firearm in the commission of specified felonies. Section 12022.53(c) mandates the imposition of a 20-year term for the personal and intentional discharge of a firearm in the commission of one of the section 12022.53(a) felonies, which does not include section 26100.

Imposition of that enhancement was an abuse of discretion, which resulted in an unauthorized sentence.

Authority:

PEN 12022.53

Third Holding:

The People suggest this court can modify the sentence and impose a lesser included section 12022.5(a) enhancement of 10 years. But section 12022.5(a) provides that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. Thus, we remand the case to the trial court for resentencing.

Authority:

People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2

People v. Tirado (2022) 12 Cal.5th 688, 700, fn. 12

Elements of crime, Sentencing

Case 000870

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the term for conspiracy to commit murder.

Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of the law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

The statute has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. In particular, a defendant may not be punished for both murder and conspiracy to commit murder. Thus, the sentence on the conspiracy count must be stayed.

Authority:

PEN 654

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042

People v. Hernandez (2003) 30 Cal.4th 835, 866

People v. Vu (2006) 143 Cal.App.4th 1009, 1032–1033

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

Abstracts and Minutes, Sentencing

Case 000869

Posted on by Gary McCurdy

Error and/or relief

We remand to the trial court for resentencing to determine the fines and fees and order them on the record.

First Holding:

The probation report recommended a $10,000 restitution fine, a $10,000 parole revocation fine, and an $80 court security fee. The sentencing minute order and the abstract of judgment reflect these amounts. But the transcript does not reflect that the court ordered appellant to pay these fines and fees. The trial court is responsible for determining the fines and fees and its oral pronouncement controls over any inconsistent minute order.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Second Holding:

No parole revocation fine shall be imposed if the defendant is sentenced to life without parole.

Authority:

PEN 1202.45

People v. Jenkins (2006) 140 Cal.App.4th 805, 819