Tag Archives: Standard of review

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000527

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose the upper term based on factors that were not proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2) states that when a statute allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of the upper term. Rule 4.421(b) sets out several aggravating factors relating to a defendant: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; (2) The defendant’s prior convictions are numerous or of increasing seriousness; (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The court stated that it found beyond a reasonable doubt that the defendant showed an increasing and violent criminal history, he posed a danger to society, and he does not perform well in probation or on parole.

Authority:

PEN 1170(b)

Rules of Court, rule 4.421

Second Holding:

Subsequent to the date of sentencing, the United State Supreme Court decided Erlinger, holding that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed—including certain details relating to prior convictions—must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. Thus, in sentencing a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 824

Third Holding:

Under the reasoning of Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079-1080, 1086,

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

People v. Lynch (2024) 16 Cal.5th 730, 743

Fourth Holding:

Whether a defendant’s crimes showed increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. Those factors must be assessed by a jury; such a finding involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, which is the limitation on a court’s power under the reasoning of Erlinger.

The same is true for a finding that a defendant’s performance on probation had been unsatisfactory, because even where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements. It cannot be shown that a rational juror could conclude that the prosecution has failed to prove beyond a reasonable doubt that these facts constitute factors in aggravation.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1089-1091

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000522

Posted on by Gary McCurdy

Error and/or relief

In the sentencing of the defendant on two separate cases, the court erred in believing that consecutive terms were mandatory.

First Holding:

When considering a trial court’s sentencing decision, we apply an abuse of discretion standard of review. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court cannot properly exercise its informed discretion if it is unaware of its discretionary authority at the time a decision is being made. A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

Authority:

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

People v. Hilburn (2023) 93 Cal.App.5th 189, 205

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Panozo (2021) 59 Cal.App.5th 825, 837

People v. McDaniels (2018) 22 Cal.App.5th 420, 42

Second Holding:

Forfeiture does not apply to claims that the trial court misapprehended its sentencing discretion.

Authority:

People v. Panozo (2021) 59 Cal.App.5th 825, 840

Third Holding:

The defendant was convicted by jury of a robbery he committed in 2024. When he committed this offense, he was on probation for another robbery, for which he was convicted in 2021. At the preliminary hearing for the 2024 robbery, the court revoked his probation for the 2021 robbery. At sentencing on both robberies, the court sentenced the defendant to four years for the 2024 robbery, and a consecutive term of one year for the 2021 robbery. In making its order, the court expressed its belief that consecutive sentencing was required under Penal Code section 667.

A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

When a defendant is placed on probation and imposition of sentence is suspended, as in this defendant’s case, the defendant does not begin serving a sentence until a sentence is later imposed after revocation of probation and the defendant is delivered into custody for that offense. Thus when the court sentenced the defendant for the 2024 robbery, he was not already serving a sentence on the 2021 robbery case. This is not the same situation as in Gonzalez, where the defendant was already serving a sentence because he had been sentenced for violating his probation orders and he was still awaiting trial on the new offense.

Authority:

PEN 667(c)(8)

PEN 669(a)

People v. Rosbury (1997) 15 Cal.4th 206, 210–211

People v. Gonzalez (2019) 39 Cal.App.5th 115, 121

Fourth Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion. It is apparent from the court’s comments in the record that it did not intend to impose the maximum possible sentence, as it imposed the low term and struck a prior serious felony. The case should be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Amelioration, Plea bargains, Sentencing

Case 000518

Posted on by Gary McCurdy

Error and/or relief

While defendant was on probation with an upper term suspended sentence, section 1170 was amended to preclude imposition of the upper term in the absence of aggravating factors found true beyond a reasonable doubt by a jury or by stipulation. On revocation, the court ordered execution of the upper term sentence. The sentence is reversed and the matter remanded for further proceedings at which the defendant may waive or invoke the requirements of section 1170(b). If he invokes its requirements, and the court is unable to impose the upper term in compliance with 1170, and the people or the court do not acquiesce to a term lower than the upper, the court must set aside the plea restore the parties to the status quo.

(Gary note: In this opinion, the court notes that there was a stipulated sentence as part of the plea agreement, and alludes to the Stamp rule that if the court and prosecutor are not happy with the resentencing, the plea should be set aside, restoring the parties to their status quo ante. But section 1171, effective 1/1/2025, may put the kibosh on Stamps and that line of reasoning. It was not discussed in this case. I have run across at least one unpublished opinion that seems to agree with me, which I have summarized as Case 000792, but it’s not due for posting yet. In that case, the district attorney apparently did not file a petition for review, but has asked the Supreme Court to grant review on its own motion.

(I’m not sure why the DA did not file a petition for review, because its request for the Supreme Court to grant review on its own motion was filed well before the deadline for filing a petition for review. (Any petition must be served and filed within 10 days after the Court of Appeal opinion is final, per rule 8.500(e)(1), which is normally 30 days after the opinion is filed. So while there are exceptions when there is a shorter period for finality, the deadline for filing a petition for review is 40 days after the date of the opinion. But even if no party files a petition for review within the time allowed, the Supreme Court can grant review on its own motion within a later deadline–within 30 days after the opinion in the lower court becomes final, per rule 8.512(c).) As of the writing of this summary, the Supreme Court has extended its deadline to October 21, 2026.

(Essentially, though, the court in Case 000792 said that Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing, and modification of the sentence does not require setting aside the plea bargain. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

(In the context of dealing with ameliorative provisions (including but not limited to “sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75”), section 1171(c)(3) says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The appellate court in Case 000792 held that the trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement.)

First Holding:

SB 567 amended section 1170 to limit the trial court’s ability to impose the upper term by making the middle term the presumptive prison term unless specified circumstances exist. 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 section 1170(b)(2). 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.

Authority:

PEN 1170(b)

Second Holding:

The only question before us is an issue currently pending before the California Supreme Court: whether a defendant whose sentence was imposed pursuant to a stipulated plea agreement may seek relief under Senate Bill No. 567. This is an issue that has split the Courts of Appeal, including divisions within this court.

[Gary note:  The Mitchell case cited by the Court of Appeal as shown in Authority as on review was decided In May 2026, People v. Mitchell (2026) 19 Cal.5th 729.  The Supreme Court remanded the case to the Court of Appeal (which recently remanded it to the trial court) to allow the defendant to take advantage of the amelioration despite his stipulated sentence, but it followed its decision in Stamps that if the prosecution or the lower court is not happy with the modified judgment, the plea must be set aside and the parties restored to their status prior to the plea bargain.  

[But the Supreme Court’s Mitchell decision contains a footnote, which I lay out here:  “Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (sec.1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

[Section 1171 expressly applies to ameliorative statutes, and does not identify section 1170 as an ameliorative section, but it says its list of “such as” statutes is not a limitation to its application.  I suspect–and that’s ALL it is, just pure speculation–that the Supreme Court was not ready to deal with section 1171 so late in the Mitchell appeal, and would prefer to see it battled out in the superior courts and Courts of Appeal before it takes on the issue.  That way it would have the benefit of perhaps many different approaches before it has to reach the proper conclusion.]

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26, 2023, S278690 [same]

People v. Todd (2023) 88 Cal.App.5th 373, 376, review granted Apr. 26, 2023, S279154 [defendant entitled to remand]

People v. Fox (2023) 90 Cal.App.5th 826, 830 [same]

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1056, review granted Feb. 21, 2024, S283452 [same]

Third Holding:

We independently review issues of statutory construction. As ever in statutory interpretation, w]e begin with the text of the relevant provisions. If the text is unambiguous and provides a clear answer, we need go no further. If the language supports multiple readings, we may consult extrinsic sources, including but not limited to the legislative history and administrative interpretations of the language.

Authority:

People v. Fox (2023) 90 Cal.App.5th 826, 831 (review granted)

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057 (review granted) [Gary note: see my note in Second Holding]

Fourth Holding:

That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them. A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.

A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. These statutory provisions are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.

Authority:

PEN 1016.8

People v. Stamps (2020) 9 Cal.5th 685, 701

Fifth Holding:

The relevant question here is not whether the sentencing judge is bound by the parties’ stipulated sentence, but whether the defendant is entitled to the ameliorative effect of SB 567’s new sentencing provisions. The defendant is entitled to the benefit of the change in the law under section 1170. But because he agreed to the upper term in his plea bargain, if the court were to reduce his sentence to any lesser sentence, the People will have been denied the benefit of its bargain.

A limited remand is appropriate to allow the court to determine whether it may impose the upper term in compliance with the new provisions of section 1170. If it determines that it may, then the sentence of six years may be imposed. Otherwise, if the defendant declines to stipulate to factors in aggravation supporting the upper term, the plea bargain must be set aside and the parties restored to their status quo, unless the prosecution and the court are willing to accept the lower sentence.

Authority:

People v. Todd (2023) 88 Cal.App.5th 373, 380-382, review granted Apr. 26, 2023, S279154

People v. Stamps (2020) 9 Cal.5th 685, 707

Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000516

Posted on by Gary McCurdy

Error and/or relief

For section 136.1 (dissuasion of witness) to apply [prior to its amendment effective 1/1/26], the attempt at dissuading must be performed prior to the commencement of the parole revocation proceedings. There was insufficient evidence to prove that parole revocation proceedings had commenced after the alleged attempt to dissuage.

(GARY NOTE: Effective 1/1/2026, section 136.1 was amended to eliminate the ambiguity under which Reynoza concluded that section 136.1 applies only if the alleging document has not yet been filed. The original language (by the use of the word “and”) ambiguously implied that, to constitute a violation, the defendant had to attempt to dissuade not only the filing of the charges, but also assistance in the prosecution once filed.

(Under that interpretation, if the only attempt at dissuasion took place after charges were filed, then the evidence was not sufficient to show that there was an attempt to dissuade from the filing of the charges. In direct response to Reynoza, section 136.1 now has changed the “and” to an “or,” the effect of which makes section 136.1 applicable to attempted dissuasion occurring on or after 1/1/2026, whether the attempt at dissuasion took place before or after charges were filed. I have included this summary because there may still be some defendants whose alleged misconduct occurred prior to 1/1/26 and must be prosecuted under the law in effect at the time of the crime.)

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Powell (2018) 5 Cal.5th 921, 944

People v. Kraft (2000) 23 Cal.4th 978, 1053

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

Second Holding:

Under Reynoza, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2). In Reynoza, all evidence of the defendant’s dissuasive conduct occurred after the underlying charging document had been filed. Therefore, since there was no substantial evidence that the dissuasive conduct occurred before charges were filed, the court affirmed the Court of Appeal’s reversal of the conviction.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 1013

Third Holding:

There is no substantial evidence that satisfies the required element that defendant’s dissuading conduct occurred before proceedings were initiated in order to support defendant’s section 136.1(b)(2) convictions. Absent substantial evidence to support the convictions, the judgment must be reversed. A reversal based on insufficient evidence shields defendant from retrial because it means that no rational factfinder could have voted to convict the defendant. As such, defendant cannot be retried on counts 2 and 3

Authority:

People v. Tripp (2007) 151 Cal.App.4th 951, 959

Tibbs v. Florida (1982) 457 U.S. 31, 41

[Gary Reminder:

[Reread what I wrote as a Gary note  in the Error and/or relief secrion above about the law having changed effective 1/1/26 for those whose crimes occurred on or after that date.  It demonstrates how critical it is for you to always check on exactly WHAT the language was for the crime on the date your client was alleged to have committed it.]
Sentencing, Sixth Amendment, Standard of review

Case 000515

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in sentencing him to the upper term when no aggravating circumstances were alleged in the information, he did not admit any aggravating circumstances, and no factfinder found any true beyond a reasonable doubt.

First Holding:

Under section 1170(b)(2), the court may impose the upper term only when aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or judge. That procedure was not followed here. A defendant, by entering into a plea agreement that includes the upper term as the maximum sentence, does not implicitly admit that his conduct could support that term. Specifically, while a plea agreement constitutes an admission to all the elements of the admitted offenses, it does not constitute an admission to any aggravating circumstance.

Authority:

PEN 1170(b)(2)

People v. French (2008) 43 Cal.4th 36, 48

People v. Hoffard (1995) 10 Cal.4th 1170, 1177

Second Holding:

Accordingly, the court here erred in sentencing the defendant to the upper term. Given the total absence of any admitted or proven aggravating circumstances, we cannot conclude this error was harmless. A remand for resentencing is thus required.

Authority:

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

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

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

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

Elements of crime, Sentencing

Case 000509

Posted on by Gary McCurdy

Error and/or relief

Three counts of conviction of section 220 were but one crime, and could give rise to only a single conviction.

First Holding:

Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. Whether multiple convictions are proper under section 954 requires our independent evaluation of the statutes at issue.

Authority:

PEN 954

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

People v. Aguayo (2022) 13 Cal.5th 974, 979, 994 fn. 8 [we confirm that the same course of conduct may not form the basis of separate convictions for the same offense]

People v. Rodriguez (2021) 71 Cal.App.5th 921, 936

Second Holding:

The jury convicted the defendant of three violations of section 220(a)(1). The charging information and verdict forms for each section 220 violation did not identify separate assaultive acts. Nor did the jury instruction on the crimes. It grouped the three assault charges together, did not require multiple actus rei, and only potentially differentiated between the charges based on the intended sex crime. The jurors, evaluating the evidence, could have reasonably assigned the same act or acts to all three offenses.

Authority:

People v. Aguayo (2022) 13 Cal.5th 974, 982–993 [finding assault with a deadly weapon and force-likely assault different statements of the same offense under section 954]

People v. Frank (1865) 28 Cal. 507, 513 [enumerated series of acts in a single statutory provision constitute but one and the same offense]

People v. Thompson (1896) 111 Cal. 242, 247–250 [same, even when a single statutory provision referenced multiple intents]

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in part, that an act or omission that is punishable in different ways by different provisions of 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. Section 654 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. 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 the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

Authority:

PEN 654

People v. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case: 000495

Posted on by Gary McCurdy

Error and/or relief

On recalling the sentence under section 1172.75, the court should have stricken the balance due on the restitution fine ordered more than 10 years previously.

First Holding:

Effective January 1, 2025, Assembly Bill No. 1186 amended section 1465.9 to add subdivision (d), which provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” Here, the trial court imposed a restitution fine of $10,000 when it sentenced defendant in 2001. Because more than 10 years have elapsed since the date of imposition, we order the restitution fine vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 does not contemplate vacating parole revocation fines under section 1202.45. Section 1465.9(d) does not mention section 1202.45. When a statute is silent on a point, the courts resort to statutory interpretation. The proper interpretation of a statute is a question of law we review de novo. When interpreting a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. To determine the Legislature’s intent, we must look to the statute’s words and give them their usual and ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.

There is no support in the plain language of the statute for the premise that the Legislature intended section 1465.9 to provide relief from parole revocation fines. If the Legislature intended such a result, it could have so specified. It did not. As such, we conclude that a section 1202.45 parole revocation fine cannot be vacated under section 1465.9.

Authority:

Waterman Convalescent Hospital Inc. v. State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1439

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Snook (1997) 16 Cal.4th 1210, 1215

People v. Gonzalez (2008) 43 Cal.4th 1118, 1126

People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes]

Appellate Principles, Pleading, Sentencing, Standard of review

Case 000494

Posted on by Gary McCurdy

Error and/or relief

It was error to impose the upper term on aggravating factors there were not stipulated to or found true beyond a reasonable doubt by a jury.

First Holding:

We review the validity of a jury trial waiver under the totality of the circumstances unique to each case. Relevant circumstances can include the nature of the colloquy prior to the court’s acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver. Ultimately, the record must affirmatively show the waiver is voluntary and intelligent under the totality of the circumstances. When a defendant is denied the right to a jury trial on aggravating factors, this error is not structural but subject to harmless error analysis.

Authority:

People v. Morelos (2022) 13 Cal.5th 722, 753

People v. Sivongxxay (2017) 3 Cal.5th 151, 167

People v. Daniels (2017) 3 Cal.5th 961, 991

People v. Collins (2001) 26 Cal.4th 297, 310

People v. Lynch (2024) 16 Cal.5th 730, 750-751, 755

Second Holding:

We review procedural due process claims de novo because the ultimate determination of procedural fairness amounts to a question of law.

Authority:

In re Jonathan V. (2018) 19 Cal.App.5th 236, 241

Third Holding:

Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. However, a defendant’s failure to object would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Also, it is well-established that an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party.

Authority:

People v French (2008) 43 Cal. 4th 36, 46

People v. Smith (2003) 31 Cal.4th 1207, 1215

Fourth Holding:

Under Apprendi, any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt. The Varnell court nevertheless held there is no due process right to notice in the accusatory pleading with respect to a sentencing factor. A sentencing factor is a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.

Because sentencing factors do not operate to increase the penalty for a crime beyond the statutory maximum, they are not required to be pleaded. Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. The California Supreme Court has yet to squarely address whether due process requires pleading and notice of aggravating factors under the most recent sentencing laws.

Authority:

In re Varnell (2003) 30 Cal.4th 1132, 1135, fn.3, 1142

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 95

People v. Lynch (2024) 16 Cal.5th 730, 769 [stating it was not necessary to decide exactly what the statute and the federal Constitution demand in the pleading and notice context]

Fifth Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. For example, 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. Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. Here, the court’s findings that the defendant “has an extensive prior criminal history” and he “was on a grant of misdemeanor probation when he picked up the new charge” constitute qualitative decisions that go beyond the bare fact of the existence of the prior conviction and, absent a waiver, he was entitled to a jury trial on those factors.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085, 1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

When a court improperly relies upon a factor that was not properly proven at a jury trial, the error 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 to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. If any aggravating circumstance fails to meet this standard, “the defendant is entitled to a remand for resentencing.

Authority:

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

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

Amelioration, Elements of crime, Sentencing

Case 000493

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support the trial court’s reckless indifference finding. Accordingly, we will reverse the trial court’s order denying the petition for resentencing and remand the matter with directions to grant the petition, vacate defendant’s murder conviction, and resentence him. Under the circumstances, we need not address whether defendant was a major participant or whether the trial court applied the correct standard.

First Holding:

Effective January 1, 2019, SB 1437 amended the felony-murder rule to provide, in relevant part: A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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.

Authority:

SB 1437

PEN 189

Second Holding:

Where the trial court issues an order to show cause and holds an evidentiary hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty of murder under California law as amended by SB 1437. The parties may rely on evidence in the record of conviction or offer new or additional evidence at the hearing. The trial court acts as an independent fact finder and determines whether the evidence establishes beyond a reasonable doubt that the defendant would be guilty of murder under the amended sections 188 and 189 and, therefore, ineligible for relief under section 1172.6.

Authority:

SB 1437

PEN 1172.6

People v. Cody (2023) 92 Cal.App.5th 87, 110

Third Holding:

Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. We must review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Montanez (2023) 91 Cal.App.5th 245, 270

Fourth Holding:

The major participation and reckless indifference requirements contained in capital case special circumstances section 190.2(d), and incorporated into the felony-murder rule by SB 1437, codify the holding of Tison and a prior decision on which it is based, Enmund, collectively place conduct on a spectrum. At one end of the spectrum is a defendant like Enmund, who planned and participated, as the getaway driver, in an armed robbery that resulted in the unplanned murder of the robbery victim and his wife.

At the other end of the spectrum are “actual killers and those who attempted or intended to kill. In between are defendants like the Tison brothers, who helped plan and carry out the escape of two convicted murderers from prison, including their father, who was serving a life sentence for killing a guard in the course of a previous escape. The Tison brothers brought a cache of weapons to prison, armed both murderers, and held at gunpoint guards and visitors alike. During their subsequent escape, they carjacked and kidnapped a family of four, took the family’s possessions, and the convicted murderers then killed all four family members. Although the Tison brothers did not kill or intend to kill, their major participation in the felony committed, combined with reckless indifference to human life, was sufficient to satisfy the Enmund culpability requirement.

Authority:

Tison v. Arizona (1987) 481 U.S. 137,

Enmund v. Florida (1982) 458 U.S. 782,

People v. Banks (2015) 61 Cal.4th 788, 794, 799, 800, 802

Fifth Holding:

Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death. The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. Although the major participation and reckless indifference elements are interrelated such that the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life, significant participation does not necessarily establish reckless indifference, which encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that SB 1437 retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient” to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

People v. Banks (2015) 61 Cal.4th 788, 801

People v. Clark (2016) 63 Cal.4th 522, 615

Tison v. Arizona (1987) 481 U.S. 137, 153

Sixth Holding:

In determining whether defendant acted with reckless indifference, we analyze the totality of the circumstances using the following factors derived from Clark: (1) Did defendant know that a weapon would be used during the felony? (2) Was defendant present during the murder and did he have an opportunity to restrain the perpetrator or aid the victim? (3) What was the duration of the interaction between the perpetrators of the felony and the victim? (4) What was defendant’s knowledge of his confederate’s propensity for violence or likelihood of using lethal force? (5) What efforts did defendant make to minimize the risk of violence during the felony? With the foregoing factors in mind, we conclude substantial evidence does not support the trial court’s finding that defendant acted with reckless indifference to human life.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

People v. Emanuel (2025) 17 Cal.5th 867, 884-88

Sentencing, Sixth Amendment, Standard of review

Case 000491

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.

First Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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

Second Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, 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. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation 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 to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. In other words, Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

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

Third Holding:

We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.

Authority:

PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]

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

People v. Castorena (1996) 51 Cal.App.4th 558, 562

Fourth Holding:

The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, the court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 776, 778