Tag Archives: Statutory interpretation

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.]
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]

Abstracts and Minutes, Appellate Principles, Sentencing

Case: 000318

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to prison terms of 60-to-life plus 13 years under both the Three Strikes law (section 667) and the Habitual Offender provisions of section 667.7. The sentence included 13 years for enhancements. The judgment is modified to strike the great bodily injury enhancement imposed under section 12022.7(a) and the two prior serious felony enhancements imposed under section 667(a). On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

First Holding:

As relevant here, section 667.7 defines a habitual offender as any person convicted of a felony in which the person inflicted great bodily injury as provided in section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in section 667.5 for the crime of assault with a deadly weapon. A habitual offender with two prior separate prison terms shall be sentenced to life in prison and shall be ineligible for parole for a period of time calculated as the longest of three options: (1) 20 years; (2) the determinate term that would be imposed under section 1170, including any enhancements; or (3) any period prescribed by Section 190 or 3046. In other words, a habitual offender is not eligible for parole for a minimum of 20 years and for at least the duration of the sentence that would otherwise be imposed for the crime, including applicable enhancements.

[Gary note: The minimum term was set at 60 years, which was arrived at by tripling the minimum 20 years to life set by section 667.7 in keeping with section 667(e)(2)(A)(i), which sets the minimum term for Three Strikes sentences at “three times the term otherwise provided as punishment for each current felony conviction” if that produces the greatest Three Strikes sentence. The third option listed above–the reference to section 3046–is what makes that the applicable minimum term under section 667.7.]

Authority:

PEN 667.7

PEN 3046(a)(2) [(a) An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: … (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.]

Second Holding:

Section 667.7 is a self-contained sentencing scheme for habitual violent offenders. Because section 667.7 ensures that a habitual offender’s parole ineligibility lasts at least as long as the corresponding determinate sentence would, including enhancements, a sentencing court may not impose determinate sentence enhancements to further lengthen this period of parole ineligibility.

Authority:

People v. Jenkins (1995) 10 Cal.4th 234, 241

People v. Victor (1991) 227 Cal.App.3d 518, 524-526

People v. Tuggle (1991) 232 Cal.App.3d 147, 157-158, disapproved on another ground in Jenkins, at p. 252

Third Holding:

Permitting determinate enhancements to be imposed on top of a habitual offender life sentence would lead to absurd, anomalous, results. Section 667.7 expressly authorizes courts to use applicable enhancements to calculate the offender’s hypothetical determinate sentence. If the total exceeds 20 years, the determinate sentence defines the offender’s minimum parole eligibility. Thus, if the determinate sentence, including enhancements, for habitual offender A equaled 21 years, this would become his minimum term. Since the enhancements were used to calculate this actual minimum term, the court could not recycle the enhancements to add another five or ten years. If the determinate sentence, including enhancements, for habitual offender B, a less serious offender, did not exceed 20 years, then B would be hit twice. First, as the Legislature intended, his minimum term would be the statutory floor, 20 years. Second, the same enhancements, which were not enough to put his determinate term over 20 years, would then be added on top of the statutory floor. This is not what the Legislature intended.

Authority:

People v. Victor (1991) 227 Cal.App.3d 518, 524-525

People v. Jenkins (1995) 10 Cal.4th 234, 253 [noting that engrafting a term of enhancement onto the life term would lead to a result inconsistent with the statute’s methodology for setting the minimum period of required imprisonment, and nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term]

Fourth Holding:

An appellate court may correct a sentence that is not authorized by law. Accordingly, we will strike the unauthorized enhancements from the defendant’s sentence.

Authority:

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re Sandel (1966) 64 Cal.2d 412, 417-419

People v. Skeirik (1991) 229 Cal.App.3d 444, 468-469

Fifth Holding:

On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

[Gary note: The court cited no authority for its directive for the correction of the abstract of judgment. It isn’t entirely clear that the abstract was incorrect, but a fair reading led me to that conclusion. In any event, there is much authority supporting the court’s ability to order correction of abstracts of judgment and minute orders, and I have set out some below.]

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

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

Case: 000287

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the balance of the $200 restitution fine pursuant to section 1465.9(d).

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which provides that 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.

Authority:

PEN 1465.9(d)

Second Holding:

We review questions of statutory interpretation de novo. If the language of the statute contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. The 10-year period starts with the original imposition of the fine and does not restart on resentencing. We modify the judgment to vacate the balance of the restitution fine.

Authority:

PEN 1260

People v. Rogers (2025) 108 Cal.App.5th 340, 354

People v. The North River Ins. Co. (2025) 18 Cal.5th 1, 13

People v. Salstrom (2025) 117 Cal.App.5th 596, 601 review granted 3/11/2026 (S295038)

Appellate Principles, Elements of crime, Statutory interpretation

Case: 000275

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to dismiss the two counts of driving a vehicle while under the influence, as he was also changed with operating a motor scooter while under the influence of alcohol. The latter is a more specific statute than the former, and the defendant must therefore be prosecuted under the more specific statute.

First Holding:

A criminal defendant may not be prosecuted under a general statute if the conduct at issue is covered under a more specific statute.

Authority:

In re Williamson (1954) 43 Cal.2d 651

Second Holding:

A motorized scooter is a vehicle under the definition of vehicle under Vehicle Code section 670: A vehicle is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

Authority:

VEH 670

Third Holding:

Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) each element of the general statute corresponds to an element on the face of the special statute or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 86

People v. Henry (2018) 28 Cal.App.5th 786, 791-792

Fourth Holding:

It is not correct to assume that the Williamson rule is inapplicable whenever the general statute contains an element not found within the four corners of the special law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the special statute will commonly result in a violation of the general statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 8